R. v. White et al., (1970) 1 Nfld. & P.E.I.R. 193 (NFCA)

• Judge: Puddester and Mifflin, JJ.
• Court: Court of Appeal (Newfoundland)
• Case Date: October 27, 1970
• Jurisdiction: Newfoundland and Labrador
• Citations: (1970), 1 Nfld. & P.E.I.R. 193 (NFCA)

R. v. White (1970), 1 Nfld. & P.E.I.R. 193 (NFCA)

MLB headnote and full text

R. v. White et al.

Indexed As: R. v. White et al.

Newfoundland Supreme Court

Appeal Division

Puddester and Mifflin, JJ.

October 27, 1970.

Summary:

Appeal Court allowed the appeal in part and refused to allow accuseds to change their plea of "guilty" to "not guilty" on a charge of break and enter and theft and reduced sentence from 18 months to 7 days. Appeal Court also quashed convictions on a charge of break and entry with intent to commit an indictable offence. Accuseds had entered a house they believed was abandoned to live in it for the winter and also removed an organ from another house similarly believed to be abandoned. Accuseds pleaded guilty to the theft of the organ and the Appeal Court found that they understood the nature of the charge and the consequences of pleading "guilty" and accordingly refused to allow a change of plea. Their sentences were reduced in view of the circumstances of the case and in view of the accused being under 21 and having no prior record. While the house was entered to live in it, Appeal Court found that there was no intent on the part of the accuseds to break and enter it with the intention of committing an indictable offence therein and accordingly quashed their conviction on that charge.

Criminal Law - Topic 1801

Offences against property - Breaking and entering (burglary) - Intention - Appeal from conviction - Break and enter with intent to commit indictable offence - Accused entered house he believed was abandoned to live in it for winter - No intent to commit offence - Conviction quashed by the Newfoundland Court of Appeal.

Criminal Law - Topic 4227

Procedure - Pleas - Change of plea from guilty to not guilty - Appeal - Power of appeal court to allow change of plea of "guilty" to "not guilty" - The Newfoundland Court of Appeal refused change of plea where accused understood nature of charge and consequences of plea.

Criminal Law - Topic 5851

Sentencing - Particular sentence - Break and enter - Appeal from sentence - The Newfoundland Court of Appeal reduced sentence for break, entry and theft from 18 months to 7 days where there were unusual circumstances and accused was under 21 and had no prior record.

Cases Noticed:

R. v. Hand, [1946] 1 W.W.R. 421, refd to.

R. v. Forde, [1923] 2 K.B. 400, refd to.

R. v. Bamsey (1960), 125 C.C.C. 329, refd to.

Tennen v. The Queen (1960), 125 C.C.C. 336, refd to.

Brosseau v. The Queen, [1969] S.C.R. 181, folld.

CASES CITED IN ARGUMENT, BUT NOT NOTICED:

R. v. Bell (1946), 19 M.P.R. 171 (P.E.I.).

R. v. Wendel (1966), 57 W.W.R. 684 (B.C.C.A.).

R. v. Kerr, [1965] 4 C.C.C. 37 (Man. C.A.).

McCormick v. The Queen (1968), 3 C.R.N.S. 150 (Que. Q.B., Appeal Side).

R. v. Sutherland (1967), 58 W.W.R. 441 (B.C.C.A.).

R. v. Wilkins, [1965] 2 C.C.C. 184 (Ont. C.A.).

Cooper v. The King (1949), 93 C.C.C. 286 (N.S.S.C. en Banc).

Lamoue v. The King (1951), 103 C.C.C. 235 (Que. K.B.).

Handfield v. The Queen (1953), 109 C.C.C. 53 (Que. Q.B., Appeal Side).

R. v. Wudrick (1959), 123 C.C.C. 109 (Sask. C.A.).

Regina v. Inwaniw; Regina v. Overton (1959), 127 C.C.C. 40.

Statutes Noticed:

Criminal Code of Canada, S.C. 1953-54, c. 51, sect. 292(1)(a), sect. 292(1)(b).

Counsel:

Leo D. Barry, for the appellants, White, Doucette and Carlin;

Mrs. Edward P. Noonan, for the respondent, Crown.