John v. The Queen, (1888) 15 SCR 384

Supreme Court of Canada

John v. The Queen, (1888) 15 S.C.R. 384

Date: 1888-06-14

Edwin John (Plaintiff in Error) Appellant;

and

Her Majesty the Queen (Defendant in Error) Respondent.

1888: March. 17; 1888: June 14

Present: Sir W. J. Ritchie C.J. and Strong, Fournier, and Taschereau JJ.

(Mr. Justice Henry was present at the argument but died before judgment was delivered).

ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA

Criminal law—Procedure—Indictment for rape—Conviction for assault with intent—Attempt—R. S. C. c. 174 s. 183—Punishment.

An assault with intent to commit a felony is an attempt to commit such felony withén the meaning of sec. 183 of R. S. C. c. 174[1].

On an indictment for rape a conviction for an assault with intent to commit rape is valid.

On such conviction the prisoner was held properly sentenced to imprisonment under R. S. C. c. 162 s. 38[2].

APPEAL from a decision of the Supreme Court British Columbia, affirming a conviction against the appellant for an assault with intent to commit rape.

This is an appeal from the judgment of the Supreme Court of British Columbia on a writ of error, a single

[Page 385]

question of law being involved, namely, whether on an indictment charging that the prisoner "violently and feloniously did make an assault, and her, the said R., then violently and, against her will, feloniously did ravish and carnally know against the form, etc.," there could be a conviction of " assault with intent to commit rape." On such conviction the appellant was sentenced to two years imprisonment.

The Supreme Court of British Columbia affirmed the conviction by a divided court, the Chief Justice and Mr. Justice Crease giving judgment for, and Gray and Walkem JJ. against it. The prisoner then appealed to the Supreme Court of Canada.

Christopher Robinson Q.C. for the appellant referred to R. S. C. c. 162 ss. 34, 36, 38 ; c. 174 ss. 183, 191; c. 181 s. 24 Subs 2 ; and cited the following authorities, Reg v. Thomas[3] ; Reg. v. Collins[4] ; Reg. v. Dungey[5] ; Reg. v. Smith[6].

Dr. McMichael Q.C. for the respondent cited R. S. C. c. 162 ss. 8 to 13, and s, 38., Reg. v. Marsh[7] ; Reg. v. Watkins[8] ; Reg. v. Huxley[9] ; Bishop's Cr. Proc.[10].

The judgment of the court was delivered by Mr. Justice Strong as follows—

STRONG J.—This is an appeal from the decision of the Supreme Court of British Columbia upon a writ of error brought by the present appellant Edwin John who, having been indicted and tried for a rape on the person of one Mary Ann Radford, had been acquitted of the felony but found guilty of the misdemeanor of having assaulted the prosecutrix with intent to commit the offence charged. The verdict of the jury as

[Page 386]

rendered was in the following terms : " The prisoner is not guilty of the felony whereof he stands indicted but is guilty of assault with intent to commit rape." The prisoner's counsel upon this verdict being returned contended that the jury could not find such a verdict upon an indictment for the felony, that although they might have convicted the prisoner of an attempt to commit the felony under sec. 183 of R. S. C., ch. 174, yet a conviction of an assault with " intent " to commit rape was not a conviction for an " attempt " as warranted by that enactment. The Chief Justice of British Columbia, before whom the prisoner was tried, refused to reserve the point under the statute and sentenced the prisoner to two years' imprisonment. The prisoner then brought his writ of error. The court on the argument of the writ of error being composed of four judges was equally divided, the Chief Justice and Crease J. being of opinion to affirm the conviction and Gray and Walkem JJ. being of opinion that it ought to be quashed. In order to allow an appeal to this court Mr. Justice Gray withdrew his judgment.

I am of opinion that the decision appealed against was right and ought to be affirmed. It is, of course, beyond question that at common law a proceeding such as this, a conviction for a misdemeanor upon an indictment for felony, would be wholly unsustainable. Some statute must, therefore, be invoked as sanctioning such a departure from the ordinary course of the common law. The statute upon which the conviction is rested is that already referred to " The Criminal Procedure Act," R. S. C., ch. 174 by the 183rd sec. of which it is enacted :—

If on the trial of any person charged with any felony or misdemeanor it appears to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to com-

[Page 387]

mit the same ; and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the indictment ; and no person tried as lastly mentioned shall be liable to be afterwards prosecuted for committing or attempting to commit the felony or misdemeanor for which he was so tried.

This, as it appears to me, is the only enactment to which this conviction can be referred. Section 191 of the same act (ch. 174)authorises the conviction of any person, indicted for a felony which includes an assault against the person, of the assault alone although the assault may not be charged in terms, the accused being acquitted of the felony. This, however, means only a common assault and not an assault such as that the jury have in terms found the prisoner guilty of here, viz., " an assault with intent to commit rape." The question is therefore really reduced to this : Is an " assault with intent to commit rape " an attempt to commit the felony charged within the meaning of section 183 ? I am of opinion that primâ facie, and unless there is some other enactment shewing a contrary intention and therefore calling for a narrower construction of section 183, that it clearly is so. This opinion is founded on the considerations that an indictment for the common law misdemeanor of an attempt to commit a felony always alleged the particular overt act of which the attempt consisted and, further, that inasmuch as an attempt to commit a crime is, as Mr. Justice Stephens defines it[11] " an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted " (a definition which has the support of ample judicial authority as the learned author shews in the illustrations appended to his text,) so the converse holds good that an assault with intent to commit rape is an attempt to commit that offence. I have not the slightest doubt, therefore, that if the

[Page 388]

present conviction depends on the construction to be placed on section 183 alone that we ought to hold it good.

Then the other statutory provisions material to be considered are the following. Section 24, sub-section 2 of Chap. 181 R. S. C. enacts that

Every one who is convicted on indictment of any misdemeanor for which no punishment is specially provided shall be liable to five years imprisonment.

And section 38 of chapter 162 enacts that

Every one who assaults any woman or girl with intent to commit rape is guilty of a misdemeanor and liable to Imprisonment for any term not exceeding seven years and not less than two years.

This last provision, no doubt, declares that an assault with intent to commit rape shall be a misdemeanor, but this was already the law, for an assault with such intent was, as before shewn, an attempt to commit the felony which was by itself always a common law misdemeanor, in addition to which the mere assault, independently of the aggravation, was also a common law misdemeanor. The only purpose and effect, therefore, of this section 38 was, as it seems to me, to affix a new and precise punishment to this particular species of the misdemeanor of attempting to commit a felony, viz. imprisonment with a maximum limit of seven years and a minimum limit of two years. Therefore nothing contained in this section 38 took this particular species of offence out of the category of attempts to commit felonies in which it was obviously before included at common law, so as to make it a new statutory misdemeanor in which there could not be a conviction upon an indictment for the felony ; on the contrary the whole object of the section manifestly was to define the punishment for an offence which always constituted a misdemeanor at common law, and for which the 183rd section of the Procedure Act had provided there might be a conviction on an indictment for the felony.

[Page 389]

Then if this is so the 24th section, sub-section 2, of the Punishments Act, chap. 181, can have no bearing on the question of the validity of the conviction. As already shown it provides for the punishment, by a lesser degree of imprisonment than is affixed to the offence of an assault with intent to commit rape, of misdemeanors for which no punishment is specially provided.

But a different punishment is specially provided for the offence of an assault with intent to commit rape, and according to section 183, if the case comes within that section, the punishment so specially affixed is that which is to be awarded when a party is convicted on an indictment for the distinct and substantive offence of attempting to commit the felony. The question, therefore, really comes back to this: Is an assault with intent an attempt within the meaning of section 183, of which a party can be convicted on an indictment for rape ? And having regard to the older authorities and precedents, to the definitions given by Mr. Justice Stephens, and to what seems to me to be an incontrovertible proposition requiring no demonstration that an assault with intent to commit rape is ex necessitate an attempt to commit that offence, I must hold that sec. 38 of ch. 162 and section 183 of the Procedure Act both apply and that the conviction must be, therefore, affirmed.

Appeal dismissed with costs.

Solicitor for appellant: Theodore Davie.

Solicitor for respondent: Paulus Emilius Irving.