T ^ih ^'iimfmt'' : I Im J I dnrttfU ICam ^rljool SItbrarg Digitized by Microsoft® tiUHBELL, TAYLOR. GOODWIN. NIXON '^ HARGKAVE 31 EXCHANGE ST., ROCHESTER, IV, Y. Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® A DIGEST OF CASES EELATINa TO CRIMINAL LAW From 1756 to 1883 inclusive. JOHN MEWS, ASSISTED BY C. M. CHAPMAN, HAREY H. W. SPARHAM, AND A. H. TODD, BAREISTEES-AT-LAW. LONDON : H. SWEET, 3, CHANCERY LANE; STEVENS AND SONS, 119, CHANCEEY LANE; MAXWELL AND SON, 8, BELL YARD, TEMPLE BAR. 1884. Digitized by Microsoft® y^^^^' LONDON : BBADBURY, AONEW, & CO., PRINTERS, WHITEFRIARS. Digitized by Microsoft© TABLE OF CASES. A. OOL. Adams v. Masters 589 — V. Moore 831 Allen V. England 218 — V. Thompson ... .... 586 — . V. "Wright 831 Alleyne v. Eeg. 819, 820 Allison, Sx parte 508 Anglo-American Telegiaph Co. v. Speerling 296 Anon. . 15, 17, 101, 186, 282, 284, 296, 327, 437, 490, 494, 499, 503, 509, 521, 555, 644, 647, 672, 683, 707, 712, 721, 754, 808, 841 Arnold v. Cheque Bank 294 — V. City Bank 294 — V. Dimsdale 510 Ashton's Case 461, 465 Ashtou or Aston, In, re . 838 Athea's Case .... 574 Atkinson v. Rex 807 Att. -Gen. D. Good 792 — V. Parsons . .... 720 Attwood V. Joliffe 220 Aylett V. Hex . 656 B. Bahia AND San Fkancisco Rt. Co., In re 293, 296 Ball, Exparte 216 Bank of Ireland ». Evan's Charities Trustees 294 Barker v. Davis 592, 793 Barnett v. Blake 214 ■ — -!). London and North-Western Ry. Co 217 Barronet, In re 839, 840 Barthelemy, In re 840 Batemau, In re 212 Beattie v. Mair 221 Beatty v. Gillbanks 603 Beckwith v. Philby 830 Beddall v. Maitland 222 Bengough v. Rossiter 699 Bermondsey Vestry o. Brown 711 Bevan v. Hopkinson 575 Binnsu. Pigot 391 Bimie v. Marshall . 589 Bishop V. Curtis 212 Blackburn v. Hargreave 775 Blake v. Barnard 494 — 1/. Barnett 213 •—v. Beech 822 Blues, J» re Digitized t^ . COI;. Booth V. Hanley 498, 829 Bounty Case 709 Bourn v. Rex 821 Bowditch V. Balohin 829 Bradlaugh, Ex parte 530 — V. Reg 631, 665 Brittain v. Bank of London . ... 240 Brook V. Hook 296 Brooks V. "Warwick 225, 278 Broom v. Reg. ... ... 676 Broome v. Reg. . . . 656, 661 Broughton v. Wilkerson . . ... 500 Browne v. Cummings 799 Bullock V. Dodds 810 Burling v. Read .219 Bury V. Levy . 217 Butter V. Turley 831 Buttu. Conant 841 552, Caddy v. Barlow . Campbell v. Reg. . Cartwright v. Green Castro V. Murray . — V. Reg. . . Cattell V. Ireson . Caudle v. Seymour Chaddock v. "Wilbrahara Champney's Case . . Chichester ■«. Hill . Chowne v. Baylis . Church, Inrc . . . Clarke v. Newsam .... Coates V. London and South' Co Codd V. Cabe .... Coleman v. Bathurst . ... Collins V. Thomas .... Commonwealth v. Yorkes . Connolly's Case .... Cook v. Field Coombes v. Queen's Proctor Cooper, In re — V. Vesey .... Cornwell v. Sanders . . . Cortis V. Kent Waterworks Co, Costar V. Hetlierington . . Coupey V. Henley .... Cowles V. Dunbar . . . Cox ■». Reid .... ... 655 361, 723, 808 . . 306 821 ,' 809, 810 591, 771 . . 832 . . 510 561 . . 388 213, 215 215, 828 265, 268 ■Western Ry. . 295 587, 833 . 585 . 219 . 336 . 16 . 709 212, 377 244, 293 244, 293 590, 591 . 699 . 507 . 828 . 830 688 . 834 A 2 vu TABLE OF CASES. Crozier v. Cundy . Cundy v. Lindsay . Cureton v. Eeg. COL. . . 835 . 211 582, 684 D. Dalrymplb v. Dalrymple ... . 67 Daniel ■». James . 417 Davies v. Kex . 681 Davis, Ex parte ■ • 510 — Inre 212 — V. Russell 830 Davy, Expa/rti . 219 Denby's Case . . 714 Denny v. Thwaites ... . . 419 Dereconrt v. CortisMey . . . 829 Dixon's Case 278 Dudley and West Bromwioli Banking Co. V. Spittle 215 Dugdale v. Eeg. . . 421, ^29, 821, 822 Dunk, Exparte 705 Dunn's Case . . 241 Dunn V. Reg 814, 836 Dui'kin's Case 845 E. Edeidge v. Hawker 218, 222 Eduljee Byramjee, Ex parte 822 Edwick V. Hawks 218, 222 Elmsley's Case .... .... 417 Elsee V. Smith 834 Elsmore v. St. Briavels . . . . 49, 50 Elworthy v. Bird 672 Entick V. Carrington 835 Errington's Case 431, 464, 679 Evans v. Philips ... 655 Eeebns v. O'Brien Fielder v. Marshall Fissingtou v. Hutchinson Fleming v. Smith . Fletcher, Ex parte. — V. Calthorp Flower v. Shaw Forde v. Skinner Fox V. Gaunt . — V. Hawks . Franconia (The) Fridlington, In re . . 334 . . 232 . . 216 . 212, 214 754, 756, 763 ... 584 . 241, 285 497 831 293 643 702 Graves, Ex parte . . ■ Gray v. Eeg Gregory!). Reg Griffith V. Harries .... Griffith or Griffiths v. Taylor Guerrier, Inre VIU COL. ... 215 ... 718 669, 808, 809 ... 593 . . 831 . 216 H. Hall v. Fuller . . Hamilton v. Reg. . Hancock v. Somes Hanway v. Boulthee Harding v. King Hardy v. Murphy Harper v. Hayton Harrington, In n Harris, In re Harrison's Case Harrison'!). Hodgson Harrod v. Worship Harrop, Inre . . Hart, Inre . . . — V. Frontino, &o., Gold Mining Co, Hartley v. Hindmarsh Haylocke v. Sparke Haynes v. Hayton . Hays V. Bryant Headley (Lord), In re Hegarty v. Shine . Henshall's Case . Herman v. Seneschal Heymann v. Reg. . Higgins, Ex parte . Hilary v. Gay . . Hilton's Case . . Hilton V. Eckersley Hobbs V. Brandscomb Hodge's Case . . Hodgson, Ex parte Holden u King Holloway v. Eeg. . . 40, 657 Holt V. Reg. . . Horridge ■;;. Hawkins Howard v. Reg. Hoye V. Bush . . Hulse, Ex parte Humphreys, Ex parte Hyde, Ex parte. Imbson v. Cope Isaacs V. Brand . 292 205, 676 . 507 . 831 . 508 . 829 . 705 . 215 . 215 . 106 . 498 . 410 . -213 389, 391 . 296 . 507 839, 841 703 491 . 712 502 483 111 . 660 . 702 . 219 . 429 . 125 . 830 . 456 . 703 . 507 809, 827 . 817 . 699 . 819 . 447 . 836 . 764 . 593 501 830 G. Galliaed v. Laxton . . 832 GiSoii (Loxi), Ex parte 837 Glj'nn V. Thorpe ... ... 706 Gogarty v. Reg 603 Goldsmith's Case 515 Gough V. Davies .... 214, 828 Graham's Case . . 67 Jenkin v. King .... .... 594 Jenning's Case .... 483 Johnston v. Renton . ... 293 — V. Parsey . . .293 Jones V. Dicker .... . . . 594 — V. Orchard .... . . . 705, 843 — " V. Williams .... . 586, 592 Josephs V. Atkins . .... 388 Digitized by Microsoft® IX TABLE OF CASES. OOL. Kbate v. Phillips . . .... 293 Keen v. Reg 699 Kenyon v. Hart 585, 586 King V. Keg 124, 126, 127, 543, 806, 814, 817 Kingston (Countess) i). O'Neill .... 592 Kingston's (Duchess) Case 72 Kinnersley v. Orpe 342 Knights V. Wiffen 296 Knowlden 1). Eeg 654 Latham v. Eeg. . Lavey v. Eeg. . . . Lawler v. Kelly Lawrence v. Hedger Laws V. Eltringham Leach v. Simpson . Leatt V. Vine . . Legg D. Pardee Leggatt V. ToUervey Leitrim (Earl) v. Steward Leslie, Ex parte — V. Brown Leverson v. Eeg. Levi V. Levi Levy V. Edwards Lewen's Case . Linford u Fitzroy Lord, Ex parte . Lort V. Hutton Lost v. Hutton Lovesy v. Stallard Lowe V. Horworth Lows V. Telford M. MaoDouglas, Inre . . M'Kenzie v. British Linen Macnaghten's Case Maden v. Catanach . Mainprice v. Pearson . Maw V. Owen . Manning v. Gell Mansellt;. Eeg. Marsh v. Keating — V. Loader Martin v. Eeg. . Masper v. Brown Mayhew v. Parker — V. "Wardley Mead v. Young Mellor 11. Dennam Merry v. Green Meynell's Case . . Middleton v. Gale . Midland In.suranoe Co. v. Midland Ey. Co. v. Taylor Migotti V. Colville Mildrone's Case Miller v. Paget Milner i>. Maclean Money v. Leach Moran v. Pitt . . Morden v. Porter . 126, 135, 657, 818 . 545 . 508 . 830 . 419 . 755 . 590 589 . 799 . 704 . 216 . 342 644, 707 . 119 . 829 . 845 . 842 . 840 . 836 . 771 . 589 . 504 218, 222 Co. Smith 719, 31 Morewood v. Wilkes 214 Moriarty v. Brooks 482 Morris, Ex parte 705 — V. "Wise 832 Morrison i>. Kelly 655 Moyoe v. Newington 211, 392 MulcahyuEeg. .... 116,639,714,717 Mullins V. Surrey (Treasurer) 834 Munday v. Maiden 509 Mure V. Kay 830 Murray v. Reg 71, 807, 819 Musgrave v. Medex n 534 N. Nash v. Eeg 659 Newton, Inn 819 — V. Harland 219, 221, 222 Nicholson's Case 606 Nicholson v. Hardwick ... . . 830 Nishett, Ex parte . . 832 Norris v. Chambres ... . 213 North V. Jackson . . 392 0, . 706 . 293 22, 23 . 776 . 214 . 298 . 214 723, 820 . 292 . 21 . 810 . 507 . 832 685, 586 . 233 . 823 . 306 . 742 . 586 . 216 . 292 . 817 . 776 . 284 . 218 . 832 . 388 ■Digitize^by^fi^i O'Beien 1). Eeg. O'Connell v. Reg. . O'KeUy v. Harvey Omealy v. Newell . O'Neill V. Eeg. Osbond V. Meadows Osborn v. Gillett . Overton, Ex parte . — V. Reg. . Padwiok v. King Parker v. Green Patteson's Case . Pearson's Case . Peat's Case . . Peddell v. Eutter Pellero, In re . Fellow, Ex parte Perkin's Case . Perkins v. Bradley Peto V. Eeynolds . Phillips i>. Wimbum Pickering v. Budd Pi^ott, Inre . . Pollen v. Brewer . Porter v. Cooper . Price V. Seeley . . Prickett v. Gratrex Prosser v. Eowe Purcell V. M'Namara Queen's Case (The) . Barber . . 707 116, 126, 135, 690, 728, 730, 801, 808, 837 605 534 723 685 217 534 64S P. . 586 . 771 . 730 20, 436 72, 773, 774 . 565 . 701 . 701 291, 681 . 213 . 232 . 751 . 574 . 817 219, 222 . 556 . 831 . 838 . 709 . 567 132 216 XI TABLE OF CASES. Xll R. EAFPETy's Case 614 Eawlins v. Ellis 833 Eeave v. Wood 774 Eeg. V. — . . . . 94, 116, 533, 671, 849 — V. Abbott 188 — 11. Abratam . .^ . . . 381, 746 — V. Absolon . 118 — V. Adams . . . 275,, 309, 401, 650, 666 — 1). Adamson . . 209 — V. Aden 355 — V. Adey 146, 156, 159 — V. Aheame ... 136 — V. Albert 677 — V. Aldridge 282, 370 — D. Allan 827 — V. Allday 354, 716 — V. AUen .... 64, 448, 519, 520, 620, 621, 643, 672 — V. Alleyne 820 — 0. Alison 431 — -o. Almey 827 — V. Alsop 539 — V. Ambury 813 — V. Amos 1 50 — <7. Anderson . . . 262, 265, 642, 644, 760 — u. Andrews 87, 677, 840 — i>. Archer 176, 445 — V. Ardley 184 — u. Arlett 707 — V. Annan . 145 — 1). Armstrong 642, 643 — V. Amall 746 ■ — V. Arnold 742, 759 — V. Arundel 773 — V. Ashby 241 — V. Ashley 361 — V. Ashman .... .... 484 — V. Aspinall 120 — V. Asplin .... 252 — V. Aston 165, 700 — V. Atkinson . . . 152, 268, 373, 602 — V. Austin 680, 649, 759 — V. Aiitey 264 — V. Avery 272, 273, 322, 78f. — V. Aylett 764 — 11. Azzopardi 469, 645 — V. Backler 241 — V. Bacon . . 588 — V. Badger 839 — V. Bailey . . . 58, 82, 149, 304, 3?8, 778, 789 — -0. BaiUie 43, 45 — V. Bain . 59, 60 — V. Baker 81, 478 — V. Balcombe 646 — V. Baldook .... .... 55 — V. Baldry . . .... 748 — V. Ball ..... .62, 185, 539 — V. Balls 142 — V. Banks 117, 134 — V. Bannen ... .... 14 — V. Barber 243, 272, 726 — V. Barker 58, 794 — V. Barnard 824 — V. Barnard Castle 849 — V. Barnes . 137, 145, 192, 310, 372, 659 — V. Barnet 765 — v. Bamett 31, 615 — u Barratt . . . 42,46,512,516,791 — V. Barrett .... 454, 549, 684, 846 — V. Barrow. . • 516, 731 — V. Barry ,-..•... . 134, 676 Eeg, 11. Bartholomew — V, Bartlett . — V. Barton — 11. Bass . . — V. Bate . — V. Bateman — V. Bates . — V. Batstone — V. Batty . — V. Bauld . — 11. Bayley . — V. Baylis . . — V. Beale . — V. Beaman . — V. Beard . •. — V. Beardmore — 11. BeardsaU . — V. Beaumont — 11. Beckwith . — V. Bedingfield — V. Beecham . — V. Beere . . — V. Beeston . — V. Beeton. . — V. Bell . . — V. Bell and Jordan — V. Belton. . — V. Benge . . — V. Bennett . V. Bent . . V. Berens . . V. Bemadotte V. Bernard . V. Berriman . V. Berry . . V. Bertrand . ■». Besant . . V. Best . . V. Betts . . V. Biokerstaff V. Birch . . 11. Birchall . COL. . 649 231, 726 . 22 . 710 . 113 . 767 175, 758 . 61 . UO . 123 . 157 689, 776 . 526 . 324 236, 726 766, 840 . 239 . 144 . 731 469, 466 . 334 714, 718 785 399, 674 113, 698 . 374 . 726 . 429 15, 69, 79, 429, 502, 326, 558 . 568, 573 . . . 724, 729 467 42, 473, 479, 686, 708, 728, 770, 791 114, 737, 744, 747 20, 322, 537, 640 786, 802 . 850 . 218 141, 325 . 352 . 615 442, 446 V. Bird . 34, 74, 83, 115, 369, 694) 824 V. Birket 233 V. Birmingham and Gloucester Ry. Co. 19, 650 V. Biswell 43 V. Bishop 14, 643, 849 V. Bjornsen . 469 f. Blackburn . . . 158, 709, 734, 784 V. Blackbume ... . . 730 ■»■ Blake 124, 129 V. Blakeman 718 V. Bleasdale . . ... 14, 363, 674, 789 V. Blenkinsop . . 235 V. !l3liss 454 V. Bloomfield X81 V. Boardman ... ... 269 u Boden . . gjy 1). Bodkin ... 747 •o- Bolam \ ' 687, 689 ''• Bond 368, 665, 742 V. Booker 16 31 V. Booth '45 V. Boreham 240 V. Borrett . 154 V. Boswell 734^ 745 V. Botfield §03 V. Boucher 416, 727, 795 «■ Boult 274, 288 V. Boulter 562 Digitized by Microsoft® XIU TABLE OF CASES. XIV Eeg. 1). •^ V. — V. — V. — V. V. V. — V. V. V. — V. V. V. — v. — V. V. — V. Boulten 123, 130, 182 Bourdon 501, 799 Bowdon 361 Bowen . 33, 65, 200, 252, 688, 850, 852 Bowers, or Bower 149 Bowler 566, 567 Bowray 598 Bowser 221 Box 314, 315 Boyes 768,781 Boynes 568, 569 Brackenridge ... ... 227 Bradford 288, 600 Bradlaugh 658, 709, 772 Bradshaw .... . • . . 426 Braithwaite 563 Bramley 317 Brannon 674 Braun .... . . . . 675 Brawn . . 35, 64 Bray 503, 544, 654 Braynell 628, 633, 757 Bren 152 Brenan ... 810 Brettell 365, 673 Bridgman 704 Briggs 69, 505, 730, 787 Brimilow 21 Bristy . . 648 Brittain ... . . 129, 637 Britton 614 Brockett 325 Brooke 579 Brookes 87, 661 Brooks 16, 180, 314 Broome 820 V. Brown Browne Browning Brownlow Bruce . Brumby Brummitt Bryan . Bubb . Buchanan Buckley Bull . Bullard Bullock Bulmer Bunce . Bunkall Bunn . Burch . Burgess Burgon Burke . Burnby Bumsides Burraston Burrell Burridge Burrows Burton 177, 53, 112, 120, 128, 129, 132, 133, 201, 282, 316, 475, 569, 596, 605, 660, 691, 783, 784, 797 . 684 . 669 . 170 . 426 . 349 346, 825 178, 186 . 428 .... 647 . . 459, 755 433, 450, 761, 778 ... 756 . 125, 418 . 199, 206 ... 315 . . 355 . 117, 123 ... 121 376, 479, 621 ... 181 . 635, 718 . 650 190, 207 548, 560 . 44, 46, 826 ... 629 . . . 188, 727 24, 34, 204, 383, 731 Bury Improvement Commissioners . 704 Butcher 15, 189, 726, 730 Butler 325, 741, 840 Butterfield 39 Butterwick . . . -. .^. .^.232,, 844 Digitized by . V. Butterworth 366- 1). Buttle 561 V. Button 132, 420 tJ. Byrne 96, 207, 403 v. Cain 305, 375 V. Caldecott 849 «■ Caley 374, 664 V. Calverte ■. 510 r. Campbell 4-45, 453 V. Camplin 519 V. Canwell 512 V. Carlile 629 V. Carlisle 118 V. Carpenter 156, 747 ". CaiT 365, 557, 642 ■0. Carrol 764 ■0. Carruthers 624, 632 ■0. Carter 84, 261, 309, 808 V. Casbolt 680 ■w. Case 496, 618 V. Casey 603, 717 V. Caspar » . . 41 V. Cassidy 778 V. Castle 250 V. Castro . . 565, 714 V. CatheraU 627 V. Caton . 31 V. Caudwell 805 V. Cavendish 455, 684 V. Central Criminal Court Judges . . 646 V. Chadwiok 223 ■0. Chadwicke 64 V. ChaUicombe 802 V. Chalmers 624 V. Chamberlain 433 V. Chambers 266, 742 V. Chandler 428 V. Chapman . 60, 139, 422, 534,554, 687, 840 V. Chappie 39 ■u. Charlesworth 697, 722 V. Chater 146 V. Cheafor 333, 370 V. Cheeseman 61 V. Cheverton 466, 738, 743 V. Chidley 757 V. ChUd 61, 653, 560 V. Christian .... 170, 535, 557, 608 V. Christie 731 V. Christopher . . . ■. . 307, 766 V. Chugg 637 V. ClaiDton 165, 794 V. Clark 65, 800, 824 V. Clarke . 88, 113, 420, 467, 617, 753 V. Clay 523 V. Clayton . . 36 V. Cleary 467, 466 V. Clegg 639 V. Clegs 405 V. Clements 755, 760 V. Clifford 14, 239 V. Clinton 332 V. Closs 198, 199, 224 V. Clouter .... .... 692 V. Clube 794 V. Cluderay 474, 475 V. Cludroy 826 V. Coady 724 V. Cobden V. Cockburn V. Coelho V. Coggins . V. Coghlan . Microsoft 90, 786 516, 761 ... 264 ... 403 ... 627 17, 297, 315 XV TABLE OF CASES. xvj. COL. Reg. V. Colclough ... . . 290 — V. Cole 313, 315 — V. Coley ... 736 — V. Colley 49 — V. Collier 732, 744 - — V. Collins . ... 60, 61, 223, 245 — V. Colmer 112, 757 — V. Colucoi 209, 797 — V. Conde 439 — V. Coney 34, 495, 596 — V. Conming 760 — V. Connell 96, 693 — V. Connor 48, 49, 56, 57 — V. Cook 112, 844 — V. Cooke . . 210, 233, 279, 282, 288, 324, 637, 683, 713 — V. Cooper . 168, 187, 208, 268, 384, 420, 493, 606, 628, 632, 788, 789 — V. Coote 756, 782 — V. Coots . . ... 90, 386 — V. Copeland . 187 — V. Copley . . . . 727, 731 — V. Cornish. 328 — V. Cornwall (Justices) 594 — V. Cory . . . . ... 333 — v. Cosser 168, 357 — V. Cotton 460 — V. Coulson 195, 196, 665 — V. Court 598 — D. Courtenay . 87 — V. Courtney . 642 — V. Courvoisier 725 — V. Cox . . 369, 400, 478, 483, 669 — V. Coxhead 115, 116 — V. Crab 188 — V. Craoknell 627, 632 — V. Craddock 398, 801 — V. Oradock 66 — V. Ci-amp 614, 769 — V. Crane 706 — V. Crawford 489, 833 — V. Crawsliaw 801 — V. Creed 139 — 11. Crespin 603 — V. Cresswell 66 _ V. Crick 432 — V. Cridland 588, 693 ■ — V. Crishane . 520 — V. Crispin . . 662 — V. Critchlow ... ... 689 — V. Crofts , . . 799 — V. Crook - 432 — V. Cropper 714 — V. Cross 68, 69 — V. Crossley . . ... . 648 — u Crouch ... . . 796 — V. Croucher 762 — V. Crowe 618 — V. Crowhurst 385 — V. Crumpton 465, 616 — V. Cruse 33, 477 — V. Cruttenden- 384 — V. Cryer 399, 683 _ V. Cuddy 27, 434 — V. CuUen 69 — 'u. Cullum 143 — '0. Cumpton 499, 833 — V. Cunningham . . 678 — V. Curgenven 69 — V. Curnook 581 — V. Curry 231 — V. Curtis 765 — V. Cutts 849 OOL. eg. V. Dadson 480 830 — -Dale 475,700 — V. Dalloway *" — ^. Daly 217 — 1/. Dane °- — 0. Danger f^ — -Dant ^f — «.Dark Ill — V. Dartnell ^^* — ,.. Davies 22, 58, 245, 356, 402, 520, 663 — ■■.. Davis ... 14, 20, 26, 75, 190, 354, 424, 601, 675 — i). Davison • ■ '^^ — V. Dawson ^^^ — V.Day . ,526,583,736,759,760,801 — V. Daynes . .... • 357 — V. Dean 126, 523 — V. Deane 722, 811 — V. Deaves .... .... 307 — V. Debruiel 365, 379, 399 — V. Deeley .... 772 — J!. Deer ' 404 — V. Deering 304 — V. Denmour . 358 — V. Dennis 780 — V. Denslow 774 — ,;. Dent 201, 206, 662 — V. Deny or Totnes (Justices). . . 606 — V. Desmond . 129 — V. Derbyshire (Justices) 690 — V. De Videl 758 — V. Dewitt 569 — V. Dibley 381 — V. Dichen 525 — V. Dignam 816 — V. Dillon 561, 795 — V. Dilworth 497 — V. Dingley 734, 749 — V. Diprose 158 — V. Dixon 24, 157, 270, 308 — 41. Dobson 850, S54 — V. Dodd 275 — V. Doddridge 578 — V. Dodson 414 — V. Dodsworth 567 — V. Dolan 396, 826 — V. Donovan 480 — V. Doody 20, 621 — V. Dossett 58, 789, 791 — V. Douglas 699, 708, 792 — V. Dovey .... 400 — V. Dowey 15, 197 — V. Dowing 452 — V. Dowlmg 708, 714 — V. Downer 209, 785 — V. Downes 425 — V. Downham 795 — V. Downing 377 — V. Dowse 730 — V. Drage 401 — V. Dring 395 — V. DriscoH 494 — V. Drury 692, 773 — V. Duffield 122, 129 — t. Duffy 618, 691 — V. Dunboyne (Lord) 570 — V. Duncan 803 — V. Dungey 520 — V. Dunn 223, 636, 566, 652, 672, 684, 768, 820, 835, 837, 838, 851 — V. Dmming 547, 846 — V. Dwerryhouse 25 — V. Dyke ... 769 Digitized by Microsoft® xvu TABLE OF CASES. XVIU Keg. V. ' — V — ■I). — V — V — V — V — V — V COL. e 436 Eagleton 62, 183 East Stoke 847 Eaton E6, 574, 5Y6, 621 Edgell 49 Edmundson 363 Edwards . . . 332, 429, 459, 612, 778 Elliot 531 Ellis . . .69, 260, 262, 271, 452, 454, 567, 676 Elrington 506 Elworthy 561, 793 Ely (Justices) 702 England 49 Entrehman 776 Epps 235 Esdaile .... 120, 128, 129, 132, 133 784 Essex 163, 190, 196', 310 Evans .... 80, 189, 197, 250, 319 323, 385, 453 Ewington 536 Exall 90, 385 Eyre 522 Faderman 618, 650, 824 Fairtie 539 Falkingham 493 Fallon 40 Fanning 67 Farlar 769 Farley 273, 784 Farnham . ... ... 114 Farr 384, 793 Farrell 531, 532, 762 Farron . . . . ... 514 Fanlkner . 47 Fay 684 Featherstone 322, 825 Feist 619 Fennell 732 Fenwick 649, 661 Ferguson 617, 657, 673 Fielding 583 Finney 441, 813 Firth 380 Fisher 40, 436, 437 Fitch 266, 323 Fitchie ; 260, 286 Fitzgerald 272 Fitzsimons 281 Flaherty 71 Flatman 321 Flattery 518 Fletcher . 48, 171, 516, 517, 537, 823 Fogarty 726 Folkes 496, 527 Fontaine. Moreau 503 Forbes 501 Ford 765, 806 Forrester 463 Forster 97, 721, 788 Foster 184 Foulkes 150, 851 Fox 473, 811 Frampton 155, 400 France 759 Frances . . 23 Francis 208, 789 Frankland 142, 156 Franklin 179, 439 Franz • . . . . 456 Frazer 42 Freakley 704 Digitized by Microsoft® 001. Reg. V. French 266, 470, 681 — V. Fretwell 36, 431, 484 — V. Frompton 330 — V. Frost . . . 634, 635, 636, 637, 638, 664, 669, 670, 717 — V. Frowen 85, 87 — V. Fry . . . ... 176 — 1. Fuidge . . ... 654 — V. FxiUagar . . 169 — V. Fullarton . . . . 377, 669, 671 — 11. Fursey . . 605 — V. Fu.ssell 618 — V. Gadbury . . 782 — V. Gale . . . . . 143 — V. Gallagher . 130, 205, 640, 769 — V. Gallant . . 678 — V. Gallears . . .... 370 — V. Gamble . . . 365, 476, 481 — V. Gamlen . ... 20 — V. Garbett . ... 781 — V. Gardener . .... 353 — u. Gardiner . . . . . 551, 563 — v. Gai'dner . 179 , 308, 456, 725, 731, 844 — V. Garland . . .... 811 — V. Garner . . . . . 460, 745 — V. Garnham . 333, 577 — V. Garrett . . . . . 180, 358 — V. Garside . . ... 472 — V. Gate Fulford ... 826 — V. Gavaron . . ... 844 — V. Gaylor . . . ... 37, 446 — V. Gazard . . ... 560 — V. Geach . . . . 236, 717, 718 — V. Geering . . .... 460 — V. George . . . . 113, 773 — V. Gerber . . .... 772 — V. Gerraus . . .... 756 — V. Gerrish . . .... 95 — V. Gibbon . . . . 541, 542 — V. Gibbons . . ... 69 — V. Gibbs . . . ... 152 — V. Gibson . . . 147, 580, 779 — V. Giddins . . . . 614 — V. Gilbert . . . . 78 — V. Gilchrist . . . 264, 354 — V. Giles . . 176, 181 — 1). Gill 141 — V. Gillings . . 317 — V. Gilmore . . 695 — u. Georgetti . . 717 — -0. Gisson . . 694 — u. Glass . . . 352 — V. Glover . . . 157 — V. Glyde . . . 306 — V. Goddard . . . . 463, 542 — V. Godfrey . . . . 203, 302, 658 — V. Golde . . . . . 169, 170 — V. Goldsmith . 205, 387, 676 — V, Goldthorpe . .... 114 — V. Gomm . . . .... 169 — V. Gompertz. . 126, 130, 133, 135, ]36, 677, 793, 805 — V. Gooch 346 — V. Good . . . .... 18 — V. Goodbody . . . . 148, 326 — V. Goode .... . 26, 114, 324 — V. Gooden . . . .... 266 — v. Goodenough . . .... 139 — V. Goodfellow . . . 545, 551, 557, 577, 582, 762 — V. Goodhall or Goodchild . . . 515 — V. Gooding ... 70 — V. Goodman , . . • 568 XIX TABLE OF. CASES. XX Eeg. Goodwin Gorbutt Gordon Goss Gould . Graham Grant . Gray . Greathead Green . 45, Greenacre . Greenhalgh Greenslade Greenwood Gregoiy . 192, Grey . Griffin . Griffiths Grimwade Grover Grundy Guelder Guernsey Gumble Gumey Guthrie Guttridge Hadfield Hagan Hagell Hagiie Haigh . Haines Hale . Halford Hall HaUett Halliday Hamilton Hammond Hancock . Handley , Hannon . Hansell . Hanson . Hapgood . Hardy Hare . . Hargreaves Harland . Harley . . Harmer Harper Han'ington Harris OOIi. ... 109 ... 155 655, 689, 778 . 185 . 693, 744 . 154 59 59, 406, 407, 442, 484, 660, 790, 809 192 290,'310, 3'74,'5o'l, 695 764 182 767 . 33, 35, 95, 615 ), 441, 645, 662, 679, 711, 729, 842 ... 632 427, 438, 736 266, 482, 524 . 624, 629 104 . 679 140 . . 300 . 367, 672 . 121, 724 . 496, 527 . . 521, 524 ... 600 . 449, 458 ... 761 ... . 702 ... 359 442, 446, 846 ... 340 . 303 149, 281, 302 496, 618, 536 130, 205, 774 . 360, 626 ... 128 . 396 , 302, 427, 430 . 230 . . 40, 633 488, 497, 844 35, 521 . 600 564, 792 . 655 237 43 422, Eeg. . 221 . 353 . 386 . 232 32, 436 52, 69, 144, 263, 386, 631, 608, 609, 669, 762, 790, 826 Harrison 322, 560 Harrod . 828 Hartshorn . 224 Harvey . . 105, 282, 326, 560, 653 Harwood 402 Haslam 163 Hassell .358 Hastie . . 147 Hatson 256 Hawdon 847, 850 Hawes 66, 71 Hawkes 232 Hawkins .... 138, 141, 326, 331 Hay 786 Hayes 523 OOL. Hayne 573 Haynes 22, 781 Hayward . . . 138, 273, 331, 785, 845 Hazard 846 Hazell 319, 726 Hazelton 19* Head 333 Heam 740,749 Heame 535 Heath 325, 369 Heaton 69 Heeson .... 460, 689, 712, 762 Hemming 613 Henderson 200, 356 Hendy . .• 618, 633 Hennah .... . . . 488 Henshaw 202 Hensler 61, 177 Heuwood 380 Herman . . 92 Herefordshire (Justices) .... 764 Heslop 587 Hesseltine 57, 58 Hetherington ... ... 805 Hewett 112 Hewgell 201 Hewins ... 663 Hewitt 123, 743 Hewlett 484 Hey 320, 326, 356 Heywood 248, 286, 673 Hibbert 45 Hicklin 630 Hicks 453, 471 Higginson . 22 Higgs 79, 583 Higson 742 HiU . . 84, 267, 279, 393, 629, 772 Hillman 514 Hills 853, 854 Hilton 403, 800, 825 Hind 462 Hinks . . 773 Hinley 675 Hoare 147, 355 Hobson 394 Hodges 25, 713 Hodgkiss 422, 534, 662 Hodgson . . 224, 278, 279, 288, 836, 850 Hogan 493 Hogg 453, 472 Holden 456, 678, 685 HoU 823 Holland 425, 627 HoUis 37, 514 Holloway 40, 61, 177, 300, 713, 826, 827 Holman .... 161, 380, 675, 726 Holmes . 210, 523, 629, 531, 532, 736 Holroyd 600 Holt 208, 789 Hook 563 Hooper 383 Hopkins 456 Hopley 437 Horan 389 Hoi'e 321 Horn 811 Hornby 30 Home 813 Hornsea 826 Horsey 426 Horton 70 Digitized by Microsoft® XXI TABLE OF CASES. xxii 001/. Eeg. V. Hounsell 115 — V. Houseman 267 — 0. Howarth 180 — V. Howell 31, 117, 462, 602, 607, 608, 661 — V. Howie 231, 262 — V. Hubbard 466 — 1). Hudson 122, 559 — V. Hughes . 40, 195, 359, 374, 386, 439, 443, 519, 537, 538, 560, 564, 611, 655, 718 Hull 580 Humphreys 649, 712 Hunt . . 142, 359, 467, 472, 603, 679 Hunter .... 177, 631 Huntley . . . . 398, 511 Hurley . 239 Hurrell 557 Hm-se 27, 30, 94 Hursfield . Hutchinson Huxley Hyde . . Illidge . . Inder . . Ingham . Ion . Isaacs . 724 . 430 617 593 . 269 192, 287 . 450 . 287 . . 513 Israel 685 Jackson .33, 138, 326, 359, 421, 470, 709 Jacobs . 741 Jacobsou James Janowski Janson . Jarman Jarrald Jarvis Jeans JefiFries Jellyman Jenkins Jennings Jennison Jepson . Jessop . Jewell . Jewett . John . Johnson 620 202, 260, 282, 408, 476, 494, 647, 662, 777 746 ... 314 . . 198 ... 82 326 106, 735 . 417 . 28 621, 768 465, 524 366, 378 175, 187 . 629 . 196 . 847 . 371 17, 625 62, 291, 317, 361, 376, 380, 421, 459, 495, 525, 535, 689, 753, 758, 803, 841, 842 . Johnston 186, 747 . Jones or Janes . . .... 50 . Jones ... 27, 30, 36, 68, 74, 83, 94, 95, 96, 175, 179, 210, 273, 301, 319, 323, 326, 345, 388, 401, 409, 444, 445, 446, 482, 494, 511, 517, 519, 576, 629, 630, 643, 647, 675, 682, 725, 737, 785, 812 . Jordan ... 21, 516, 519, 525, 730 . Joyce 265 . Kain 633 . Kay 258, 317 . Kayley . . 691 . Kealey 206 . Keane 651 . Kebble 500 . Keena 164 . Keighley 177, 186 . Keith 228 . Kelleher 202 — V. Kelley . Di^itited tfy\ COL. V. Kelly 30 V. Kendall . 377 V. Kendrick .... 118, 135, 188, 711 V. Kenny 304, 395 V. Kerr 306, 748 v. Kerrigan 770 v. Kew . . . 446 V. Key 717, 718 ■V. Keyn 643, 644 V. Keys 663 V. Kilham 179 V. King . . 125, 164, 339, 377, 497, 820 v. Kinglake 782, 815 V. Kiuneai- . . 231 1). Kipps .... 43 V. Kirkham 437 V. Kitson • 58, 794 V. Knight 308, 385, 697 V. Knights 431 V. Knock 450 V. Kolin 412 V. Lacey 717, 778 V. Lake 572 V. Lamb 814 V. Langford 608 V. Langhurst . 688 V. Langmead 385, 404 V. Langridge or Langbridge'. . . . 753 V. Langton 374, 796 V. Larkin • 398, 670, 671 V. Lamer ... 178 V. Laugher 16, 740 Lavey 542, 820 V. Law u. Lawes . . ■V. Lawlor ■V. Lawrence . ■u. Layton V. Ledbetter . V. Leddington V. Ledger. . V. Lee . . 24, 676 . 88 . 545 175, 687 23, 24 . 755 119, V. Leech . V. Lees V. Leggett V. Leigh . V. Leng . V, Leonard V. Leppard V. Lesley . V. Leverson V. Levine V. Levey . V. Lewis . V. Light . V. Lince . V. Lines . V. Lister . v. Little . V. Littlechild ■V. Littleton V. Lock . V. London V. London (Corporation) V. London (Mayor) . V. London (Lord Mayor, &c V. Longbbttom V. Lonsdale V. Loose . .449 33, 175, 183, 186, 204, 238 210, 682 , . 819 438, 443 . . 25 . 799 191, 202 . . 326 494, 642 . 785 . . 186 . . 799 470, 476, 495, 826 . 500, 829 . 201 . 525 . 140 316, 781 . . 587 724 — V. Lopez . — u Lovell . 'icrosbkW . . 495 543, 548 387, 710 754, 755, 763 . . 389 . . 446 , 263, 380 171, 357, 375 . . 642 . . 319 . 389, 708 XXIU TABLE OF CASES. Reg. Lovibond Low Lowe . Lowi'ie . Luck . Luck or Burdett Luckhurst Lucy . Lwmlej Lunuy Lynn . Lyons . Mabbett Mabel . M'Athey M'Cafferty M'Carthy M'Connell M'CuUey . M 'Donald M'Donnell M'Ga varan M'Ginnes . MoGovem M'Goweu McGrath M'Gregor McKale Mackay M'Keever Maokliu Macleod M'Loughlin McMahou MacMiUan McNaughten M'Pbane . M'Pberson Macpberson MoKue . Madge . Mabony Major . Malins . Mallam MalUnson Maloney Manchester (Mayor, &c. ) Mankletow or Manktelow . 324 441, 796 335, 367 32 727 740 566 68 459 619 51 428 500 395 637 28, 393, 687 261, 287 . 371 . 151 632, 788 528, 791 . 18 . 750 . 719 53, 318 . 411 . 318 . 463 . 54 . 388 . 431 . 482 . 403 . 106 602, 842 426. ■ . 27 60, 83 . 497 . 519 365, 379 223, 232 . 848 . 727 . 532 835, 836, 837 622, 765, 801 19, 699, 847 ... 43 Manning . . .17, 20, 37, 40, 51, 303 Mansfield . . . 369, 402, 665, 732 Mauwaring 66 Manzano . 728 March . . .... 496 Marcus 279 Marks 160, 670 Markuss . 432 Marriott 440 Marsden 600 Mar.sh . . 62, 151, 201, 349, 355, 357 MarshaU 149, 763 Martin. . . 60, 109, 182, 188, 189, 194, 203, 206, 241, 399, 421, 441, 484, 495, 525, 527, 533, 721, 726, 803, 826 Mason 569 Masters . ' 141, 823 Mattheson 350 Matthews ... 16, 320, 359, 393, 409, 410, 766 May 113, 147, 577, 582 Mayers 518 Mayle 148 Reg Mayne . Mazeau Meadham Meadows Meakin Meal . Meaney Meany . Mears . Medlaiid Meek . Megson Meigh . Mellor . Mence Menham Menhom Mercer . Meredith Merry . Metcalf Miard . Michael Mick . Middleditch Middleship Middleton Miles . Millard Miller 44, Mills . Milner . Milnes . Milton Mitchel MitcheU Moah . Mockford Moir Moland Mole . Monaghau Money . Moody . Mooney Moore Mopsey Morby . Moreau Morgan Morris . Morrison Morse . Mortlock Morton Moseley Moss . Most . MuUany Mullen MuUer. MuUins Munday Munson Murdook Murphy Murray , Murtou Mutters , Mycock 46, 142,158, 117 577, 395,511 114, XXIV COL. 714 . 230 . 578 43, 726 . 181 . 75 . 639 . 802 421, 529 . 301 . 542 464, 521 . 260 716, 804, 806, 824 . 627 . 354 455 . 824 521, 523 . 494 584 325 624, 625 . 15 . 747 627 427 . 312 . 496 . 538 740, 753 . 177 . 680 561,795 268 . 672 234, 262, 265, 617, 650, 655, 679, 691, 795 165, 274, 351 . 383 .. 765 . 35 . 307 . 599 . 339 276, 288 . 462 20, 70, 291, 308, 738, 767 ... 232 ... 457 559 313,' 466, 560 337, 366, 506, 581, 694 ... 334 . . 760 . 648, 794 244, 824, 826 . 206 199, 203 ... 473 ... 541 . 753 ... 765 . 770, 783 . . 36, 39 49, 50, 51, 55 . 162, 682 28, 123, 134, 196, 362, 674, 777, 802 444 ... 424 322 .... 45, 46 Digitized by Microsoft® XXV TABLE OF CASES. XXTl Reg. Myott . Nash . Nattrass Naylor Neale . Need . Nesbitt Neville Newall Newboult Newhouse Newland Newman Newton V. Nezzel . V. Nicholas V. Nioholls V. Nicholson 'I/. Niokless ■;;. Noake . V. Noakes V. Norman V. Norris . V. North . V. North of England By. V. Norton V. Nott . I. Oastler V. Oates . t. 'Brian V. O'Brien V. O'Callaghan V. O'Connor V. Oddy V. Odgers . V. Oldham V. Olifier V. Oliver . V. O'Neill V. Opie V, Orchard V. Orgill . V. Orman . V. Ortou . V. Osborn'e V. Osman V. Oswestry (Treasurer) V. Overton V. Owen . V. Oxenham V. Oxford . V. Oxley . ■u. Packard V. Page V. Paice . V. Painter V. Palmer V. Pardenton V. Parfitt . V. Pargeter V. Parish . V. Parker Co. 76, 290. OOL. . -250 224, 256 . 52 179 539 495, 526, 602^ 604 . . 265 . . 149 . 206 ... 553 ... 557 . . 56, 57 . . 853 379 168, 556, 805 71, 259, 462, 555, 649, 708, 712, 721, 7S3, 766, 818, 819 31 . . . 462, 528, 689, 777 61, 402, 427, 482, 527, 528 ... 715 30, 574, 576 161 433 138 410 311 19 203, 628 568, 569, 814 . . 848 202, 203 ... 452 :, 297, 695, 812 . 670 . 199, 677 382, 402, 787 481, 649, 650 . 82 44, 45 . 511 . 603 . 113 660, 672 . 67 . 119 . 597 522, 754 . 463 845, 854 542 793 21, 540, 564, 709,' 756 ... 366 21, 478, 634 547 427 455, 531, 533 94, 95, 96, 724 48 752 646 599 464 236, 715, 727 48,- 124, 204, 558, 562, 568, 580, 701, 740, 754 Parkinson 806 Parnell 116, 717 Parr 397, 690 Parratt 737 Parsons 800 Pascoe 391 Patent Eurika and Sanitary Manure Co 684 447, 448, 21, 512, Payne . Peacock Pearce . Pearson Peck . Peel . Pembliton Perkins Perry . Fetch . Peters . Phelan Phelps Phetheon PhUips Phillips Phillpott Phillpotts Philpotts Pierce . Pike . Pikesley Pilling . Pitts . Platts . Plummer Pocock PoUman Polly . Pook . Poole . Porter . Potter . Povey . Powell . Powner Poynton Poyser . Pratt . Pressy . Prestney Preston Price 54, 482, 486, Pries . Priest . Primclt Prince . Pringle Pritchard Privett Probert Proud . Puddick Pulbrook Pulham Purchase Quail . Qualter Quigley Quin . Radclifl'e Radford Radley . Ramsden Eansford Ratclifife Rathbone Rawlins Rea Read Reany . Rearden 364 470, 516 25, :, 379, 33, 114, I, 605, 309, 374, coi. 773, 827 . 759 535, 773 508, 543 124, 126 463, 765 . 418 461, 466 336, 513 331 . 308 . 685 650, 691 . 301 . 756 649, 716 . 490 540 . 197 680, 710 271, 281 750, 767 . 262 425, 664 424, 801 427 441 . 118 304, 400, . 419. 578, 648; 45, 159, 373, . 458 . 302 447, 491 . 84 67, 71 333, 665 . 250 329, 351 . 330 576, 585 524 579, 587 . 306 700, 843 . 260 . 748 . 46 312, 378 151, 168, 164. 267, 269 377, 670 . 302 . 851 539. 790 729 . . 259 . 40 160, 650 36, 40 462, 464 759 134, 137, 90, 666 285 . . 368 . . 183 . . 614 422, 473 . . 525 353 . 546 . . 63 495, 617 . 466 523, 787 Digitized by Microsoft® XXVll TABLE OF CASES. XXVIU . Reardon or Rearden 396 . Keason 352, 736 . Bedford 158 . Redman . . .' 628 . Reed 308 . Reeve . 735 . Reeves 327, 358 . Regan 57, 59, 737, 789 . Reid 138, 331, 615, 617 . R«ndle 756 . Renshaw .... 480, 493, 496 . Rice 345 . Richards 22, 23, 39, 303, 627, 726, 764 . Richardson . . . 163, 190, 313, 475, 790, 815 . Richmond . . . 104, 250, 356, 692 . Rider 727 . Ridgway 183 . Rigby 652 . Rigg 758 . Riley 581, 761, 765 , Rinaldi 229 , Ritson 244 . Roadley 526 , Roake 264 Robb 44 Roberts 92, 104, 233, 271, 324, 554, 562 Robertson 625 Robins . ... 43, 315, 523, 621 Robinson . . 96, 182, 333, 397, 400, 624, 794 Robson . . . 269, 305, 358, 359, 690 Rodeu .460 Rodvvay 314 Roe 333 Roebuck . ' 185 Rogers . . 106, 162, 234, 261, 270, 353, 378, 896, 682 Reg. Rooke . . , Rosenberg . Rowe , Rowed . Rowlands Bowton Roxburgh Royce . Rudick Rudlaud Rue Riigg . Rundle Russell Russen Ruxton Ryan . Rycroft Ryland Rymes St. fieorge St. John Sallement Salmon Salt . Salvi . Samways Sanders Sanderson Sansome Sargent Sarsfield Satchwell 47, 713^ 598 . . 322 . . 372 . . «21 124, 137 . 782 . 513 33 155 . 613 . 518 7-13, 745 . 428 . 491 760, 803 . 519 . 646 . 475 . 128 . 490, 527 . 211, 400, 669 476, 494, 512, 708 . 677 . 478 . 445 . 291 . 693 . 329 84, 499 579, 598 . 452 . 741 . 266 . 397 . 54 Sattler Saunders . COL. .... 470, 642 . 421, 517, 532, 842 . . 66, 71, 687, 688 Saward 311 Sawyer 426 Scaife .... 760, 763, 802, 814, 839 Schlesinger 542, 550, 555 Schleter 686 Schmidt 396 Scott ... . 551, 555, 660, 796 Scotton 538, 587 Selbe 691 Selten 435 Selway 359 Serva 469, 666, 776 Sharman . * : 289, 422 Sharpe .... 252, 603, 619, 680 Shaw 547 Shelburn 766 Sheldon 684, 721 Shellard 131, 787 Shepherd 30, 53, 325 Sheppard .... 122, 347, 354, 440 Sherlock 501 Sherwood 183 Shickle 333 Shimmiu 728, 730 Shott 527 Shrimpton 782 Shuttleworth 800 Sills 774 Simmonds 209, 791 Simmons 537 Simmonsto 71 Simpson . 327, 331, 608, 609, 683, 764 Sinclair . 502 Skeen 173, 691 Skeet 32, 445 Skelton ... . . 34, 115 Slator 561 Sleeman . 735, 738 Sleep 113, 297 Slingsby 382 Slowly 313 Smith . 16, 39, 70, 185, 197, 224, 230, 239, 255, 263, 270, 274, 276, 287, 323, 330, 336, 349, 354, 384, 385, 387, 394, 395, 405, 434, 436, 440, 441, 454, 461, 477, 482, 490, 491, 494, 550, 557, 570, 623, 652, 754, 767, 825 Smythies Snelling Southey Southwood ling Spanner Sparks SpaiTOW Spencer Spicer . Spilling Spooner Stack , Stafford Stainer Stanhury Stanclifi'e Stanhope Stanton Stear . Steel . 70, 283, 645 . 261, 271 25, 686, 729 542 550 566 61 769 511 174 54, 433, 579 . 371 432 482 702 707 142, 275 210, 683 387 835 495, 518 316, 825 134, 822 Digitized by Microsoft® XXIX TABLE OF CASES. XXX ,eg. V. Steels , . — V. Stenson . — V. Stephens . — V. Stephenson — ■ V. Stewart . — V. Stockley . — • V. Stoke . — V. Stokes . . — V. Stolads — V. Stone . . — • V- Stowell — V. Strahan . — V. Strange — ■ V. Stranger — V. Stringer . — V. Stripps — V. Striner — V. Stroud — V. Stubbs — V. Stndd . — V. Sullivan . — • V. Summers . — V. Sunley — . V. Sutclitfe . — V. Suter — ■ V. Sutton . — V. Swain . . — ■ V. Sweenie — V. Swindajl . — V. Swinnerton — • V. Sydsertf . — V. Taffs . — V. Tait . . — o. Talfourd — V. Tancock ^ V. Tate . . — V. Tatlook — V. Taunton — V. Taylor . . 181, 625, — V. Telicote — • V. Tempest — •.;. Teste . — .,. Tew . — V. Thallman . — V. Thomas — V. Thompson — V. Thorley . — V. Thorn . . — V. Thornhill . — V. Thornton . — V. Thorpe — I,. Thristle — 17. Thuvborn . — V. Tideleman — v._ Tllson . — V. Timmins — V. Timothy — v. Tinkler — ■ V. Tippin _ V. Tite . — V. Titley .* — V. Tiyey ■ — V. Toakley — V. ToUemaohe — V. Tollett — V. Tolsoji — V. Tojalinson — u. Tongue , OOL. ... 193 131, 208, 788 15, 728, 806, 822 685, 762 . 760 . 651 . 366 23, 451, 659, 680, 747, 819 547, 549 207, 264, 536, 637, 657 . 651 . 691 . 339 . 611 . 616 . 741 . 522 . 453 767, 824 221, 825 483, 498, 716, 804 . 811 . 297 745, 812 . 185 345, 577, 582 . 717 , 517 31, 439, 444, 44o , 748 , 701 . 158 , 762 42 693 , 540 . 169 . 614 38, 55, 58,62, 118, 135,18(1, 242, 262, 322, 443, 466, 512, 651, 688, 728, 731, 738, 740, 765, 790 . 749 . 690 . 728 . 777 . 532 109, 148, 309, 419, 559, 641, 726, 826 34, 82, 88, 117, 135, 192, 310, 322, 323, 612, 763, 774 . 145 262, 265 . 560 705, 854 . 144 . 319 . 307 . 631 . 66 44, 459 . 132 . 45 . 376 . 147 515, 671 . 417 . 731 . 837 321, 323 . 71 . 536 . 146 Reg. V. TQnkinson . . • 353 — V. Toole 641, 662 — v. Topping 67 Torpey 17 Toshaok 274 Towers 425 Townley 22, 332 Townsend 154, 157 Trainer 442 Treadgold 162, 682 Treasury, Lords of the .... 853 Trebeloook . 301 Trebiloock ....... .824 Tremaine 716 Trenfield .... 245, 278 Trevelli 731 Trevenner 363 Trilloe 430 Truelove 530, 711 V. V. V. V. V. V. V. V. V. V. V. Trueman . Truman . Tryddyn . Tuberfield Tuokwell . Tufts . . Tulby . . 675 . . 152 . . 650 . . 783 . 36, 305 272, 784 . . 201 — V. Turberville 271 — V. Turner . 100, 115, 150, 437, 555, 558, 583, 656, 662 — V. Turpin 240 — V. Turton 26 — V. Twist . 369 — V. Twose .... 14 — V. Tyler 19, 29, 41 — V. Tylney .... 272, 273, 281, 784 — V. Tymons ... 671 — V, Tyrie . 151 — V. Tyson 540 — V. Uezzell 576, 581 — V. Upton .... . . . 599 — V. Vaile 572 — V. Vamplew . . 21 — 1/. Vanderstein 264, 289 — V. Vann 421 — V. Vaughan 268, 269 — V. Vincent . 132, 367, 372, 602, 670, 778 — V. Verrier or Viirier . . ... 544 — D. Virrier 802 — V. Vivian . . 263 — V. Vodden 802 — V. Von Seberg . . ... 643 — ■ V. Vyse ... 24 — V. Wade ... ... 303, 394 — V. Wadsworth . 382 — V. Wagstaffe 439 — V. Wainwright . . 458 — ». Waldegravo (ICarl) . . . . 848,851 — V. Walford . 764 — V. Walkden 497 — D.Walker . 148,382,423,486,622,694 _ V. Walking 727 — V. Wall .592 — V. Wallace 412, 645 — V. Waller 315, 321 — „. Wallis 329 — „. Walne 194 — V. Walsh 758 — V. Walters 260, 440 — V. Waltham 482 — 0. Walton 625 — V. Warburtou 121 _ V. Ward 367, 371, 377, 398, 632, 722, 766 Digitized by Microsoft® XXXI TABLE OF CASES. XXXll Reg. V. Wardell — V. "Wardle — 11. "Wardroper — V. 'Warinau ■ — V. Warren — V. Warriugham — V. "Waters — V. Watkins — V. Watson — V. Watts . — V. Waverton — V. Wetb . V. Webster V. Weeks . V. Weil . V. Welch . V, Weller . V. Welliugs 11. Wells . V. VVelman ■11. 'V{e\sh . V. Welton V. Weumoutli u Wesley V. West 11. Western V. Westley V. Westou v. Whalley 11. Wheater ■u. Wheatland ■u. Wheeldon ■(/. Wheeley . V. Whelan . u. Whlley V. Whitohui'oh ■u. White 94, COL. 240 . 722 '. 18 . 457 . 349 739, 745 429, 454, 663, 827, 845 615 . 188, 531, 741, 749 . 305, 333, 758, 759 660 . 316, 531, 532, 729, 773, 824 305, 376, 548, 563, 672 105, 790 . 823 143, 157, 163, 417 . 752 762 ... 355 ... 207 435, 436, 746 671, 761 . . 83, 84 ... 578 27, 94, 175, 265, 268, 307, 368, 430, 665 . . 554, 585, 671 508, 553, 659, 671 445, 450, 458, 727 . 721 281, 757 . 564 . 75 . 750 780 70 823 140, 156, 159, 234,236, 239, V. Whitehead V. Whitehouse V. Whiteman V. Whitfield . V. Whittaker V. Whittingham V. Whitworth V. Whybrow V. Wicker V. Wickham 11. Wiggins V. Wildnian V. Wiley . V. Wilkes V. Wilkins 11. Wilkinson V. Wilks . . V. Williams . 260, 325, 328, 334, 401, 493, 729, 747, 764, 767 , 83, 377, 461, 772 133, 548, 804, 806 . 415 ... 686 26, 574, 676, 833 . "409 . 465 . 557 . 761 . 195 751, 779 706 . 394 . 512 487, 614 751 . 851 106, 113, 262, 270, 282, V. Williamson V. Willis . . 11. Willmott . 11. Willot . . i>. Willoughby V. Willshire . V. Willson . V. Wilahaw . V. Wilson . 514, 327, 335, 381, 414, 474, 496, 617, 677, 632, 765, 760, 761, 766, 774, 815, 82.5, 841, 848 . 72, 241, 274, 651, 663, 690, 187, 201 463, 812 297, 298 . . 178 . 435 . 68 . . 309 760, 767 384, 398, 766, 761, 845, 849 Eeg. V. Wilton — V. Winbow — i>. Windsor — V. Winnall — V. Winslow — V. Winsor V. Winterbottom OOL. 264, 761 355, 373 . . 739 141, 146 , . 460 . 772 . 233 V. Withers 651 V. WoUaston 495 V. Wolstenliolme 164 V. Wolverhampton (Recorder) . . . 530 V. Wood 307, 404, 522, 678, 583, 679, 727 V. Wood Ditton 648 V. Woodhead 778 V. Woodhurst' 526 11. Woodman '203 V. Woodward 18, 395 V. WooUey . 158, 160, 161, 174, 178, 826 V. WooUez 389, 391 V. Worcester (Justices) 700 V. Woi-ley ...... . 550 V. Wortley 81, 88, 151, 373 V. Wright 115, 332, 381, 383, 430, 524, 671 V. Wycherley 615, 715 V. Wynn 302, 351, 354 ■V. Yates 128, 641, 662, 631 11. Yeadon . 512 V. Yorke .306 V. Yorkshire (Justices) 703 V. Young 27, 136, 353, 433, 518, 597, 753, 774 Rex ■u. Yscuado •f. Zeigert V. Zulneta v. Abgood 11. Abraham Abrahat Adams Addis . Adey . Aickles Airey . Allen . Allison Amey . Anderson Andrews Antrobus V. Appleby V. Archer V. Aris V. Arscott V. Ashburn V. Ashton V. Askew . V. Aslett . V. Ast . . V. Asterley V. Astley . V. Athea . V. Atkins. V. Atkinson V. Ayes . v. Aylett . V. Ayres . 11. Badcock V. Bailey . V. Baker . ■V. Baldwin ■u. Ball . ... 726 282, 732, 787 ... 708 . . 60, 660 ... 631 ... 653 372 309, 371,' 384, 704 . . 449 179, 782 234, 314, 384, 796 182 339, 443, 644 ... 63 ... 340 . . 434 30, 576, 581 ... 472 . . 748 . 17 54 264, 266, 286 ... 566 ... 406 . . 805 137, 336 . . 774 . 176 610 . . 85 . . 646 234, 481 . . 434 534, 548 . 703 29 75, 85, 468 259, 610 . . 41 56, 290, 448, 570 Digitized by Microsoft® XKXlll TABLE OF CASES. XXXIT OOIi. OOi. Eex V. Balls . 290 Kex V. Bright ... .... S9Q — V. Bamfield ... ... 261 V. Brinklett . . . ... 663 — V. Bangor (B shop) ... 602 — V. Brisac . . . . . . 135, 681 V. Banks . . 320 — V. Brittou . . . V. Brodribb .... . ... 674 . . 570. 571 — V. Barham 575 — . V. Barker. 523 — V. Brooke .... . 84i; 846 — i>. Barnard . . 177, 768 — V. Brooker ' 842 — V. Barnes. . . 846 — V. Brooks 333 — V. Barnett 667, 710 — V. Brown . 74, 75, 77, 78, 438, 572, 610, — V. Barrett . . . 691, 852 660, 661, 777 — V. Bartlett 407, 746, 747 — V. Browne 555, 557 __ V. Barton 269 — V. Brunswick 372 — V. Bartruni ■ .... 852 — V. Bruntou 773 — ■0. Bass 324 — ■!). Bullock . .... 700 — V. Batt . 607 — V. Bunts . . . 815 — . V. Baxter .397 — V. Burbon . . 805 V. Beacall . . . . 142, 159, 161, 163 — V. Burfield . . . 506 — V. Beaidmore 688 — V. Burgess . . 713 — V. Beavan 219 — ■u. Burgiss ■u. Burke . . . . 230 V. Beckett .482 — . . 237 — V. Beechey 145 — V. Burrows . . . 79, 511 — V. Beezlen 778 — V. Burton ... 140 — V. Bell . . . . 104, 748 — V. Bush . . ■* 49 — u. Belstead ... ... 372 — V. Butler . . .60, 527 ■u. Benesech 541 — V. Butteris . . . 28 V. Benson .559 — V. Butterworth 89 V. Bentley . . 750 — V. Buttery .... 182, 211, 272, 683 V. Bigg . .225 — V. Bykerdyke ... . 123, 133 V. Billinghan 1 . . .... 596 — u. Cabbage . . . ... 302 V. Bingham . . 702, 703 — V. Cadman ... . 474, 515 V. Bin^ey 29, 612 — V. Callan ... 75 272 — V. Callanan 546, 552 V. Birdseye . . . • . 382, 787 ~ — ■0. Camfield . . ... 86 V. Birkett . 230, 233, 285, 768, 769 — u Campbell . .... 313 V. Birminglia m . . . . . 66 — V. Cannon ... ... 611 V. Birt . .602 -- V. Capewell 575 V. Bispham .... .783 - V. CarlUe 818, 841 V. Bitton . 685 — V. Carney . . ... 259 V. Blackham 610 — V. Carr . . 150, 442, 476 ■u. Blackson . . 41 — V. Carradice .... ... 342 V. Blick . 346, 400 — ■V. Carrell ... 77, 86 V. Bobey . . . 844 — V. Carroll 360 V. Bodle . 778 — V. Carson. . ... 161 V. Bolland . . -234 — V. Carter . . . . 237, 278 V. Boltz . 805, 815 — V. Carfcwright .195 V. Bomaster 842 — V. Case . . . 100 1;. Bonner 465 — V. Cass . . ... 737 V. Bontien .234 — V. Catapode . 230 V, Booth .492 — V. Cave . . ... 519 V. Bootyman 163 — V. Chadwick. . 209, 795 V. Boucher 630 — V. Chalking . ... 79 V. Boultbee 594 — 1). Chalkley . ... 417 V, Boultou 376 — V. Chamberlain . 652, 698 V. Bourne 435 — V. Chamberlayn e . . . . 851 V. Bowditch 805 — V. Chappel . 749 V. Bower 185 — V. Chappie . ... 417 V. Bowes . 836 — V. Chard . . 368 V. Bowman . . . 697, 698 — V. Charlewood . 312, 319, 320 V. Bowyer- v. Box 413 — v. Chatburn . ... 667 233 — V. Checketts . . . 660 V. Boyce . V. Bradbury 486 — j;.' Cheese . . . .'498 750 — V. Cheeseman ... 438 V. Brady . . .... 471 — u Cherry. . . ... 328 V. Braithwait e 842 — V. Child . . . ... 601 .— V. Bramley . V. Brangan . 305, 375 655 z V. Chipchase V. Christie . . . . . 324 ... 464 V. Brannan . 283 — V. Chubb. . . ... 407 1} Brasier 528, 776 — ■u.' Cirwan . . ... 97 V. Brazier ... 329 — V. Clark . 335, 452, 453, 662, 663, 693, v. Brewer . . 237, 784 701 1). Brice . . .. 73, 75, 724, 802 — V. Clark, alias Jones ... . . 690 — V. Briggs . . . . 483, 484 — V. Clarke . . . • • • . 622, 737 B Digitized by Microsoft® XXXV TABLE OF CASES. Rex Clay .. Clayburn Clement Clewes Clinch. Coates . Cochrane (Lord) Codrington Cohen . Cole . Coleman Collett CoUey . CoUloott Collier Collins Collison Comer . Compton Conner Constable Coogan Cook . Cooke . Cooper . Corden. Cornwall Coslet . County Court . Coven ey Cowell . Cox . Coxon . Cozins . Cramp. Crayen Crespigny Crick . Crisp . Crocker Crockett Crookes Crossley Crowther Crump Grunden Crutchley Culkin Cullen. Cundick Curling Curran Curvan Dade . Dale . Daman Dann . Dannelly Davis COL. ... 344 ... 78 ... 710 4.58, 734, 746 . . 258 ... 477 . . 805' . 188 . 542, 803 . 621, 787 ... 182 ... 85 ... 777 . 254, 286 ... 250 635, 636, 638 ... 32 439 815 272 371 658, 690, 691, 776, 807 37, 47, 743 343 115 328 29 736 762 397 481, 547, 605 . . 710 . 519, 620 . 615, 572 . 542 ... 581 ... 217 223, 279 ... 464 ... 651 196, 636, 543 . 241, 270 . . 304 . 532 19, 408 . 451 259, 269 . 619 . 364 . 448 . 447 . 29 . 180 . 343 399, 696 . 81 28, 75, 77, 78, 115, 346, 449, 485, 678, 666, 659, 724, 767 Dawher 768 Dawson 225, 277, 527 Deakin 371 De Berenger 120, 121, 124 Deeley 70 Deering 784 Delamotte 535 Delaval 117 DeLondo 412 Densley 400 Deparrio 468 Eex V. Derrington — u Despard — V. De Veaux — V. Dewhurst — V. Dewsuap — V. De Yonge — V. Dickenson — V. Dicks . — V. Dillon . — V. Dingier — V. Dixon . — V. Dobbs . — V. Dodd . — V. Doherty — V. Dolby . . — V. Donnally . — V. Donnelly . — V. Donnevan Doran . . Douglas . Dover (Mayor, &c. ) Dowlin . Downey . Dowsell . Doyle . . Drummond Duffin. 362 — V. — V. — ■». V. V. — V. — u V. V. V. V. — V. — V. ■ — V. Dunkley Dunn . Dunnage Dunnett Dunstan Dunston Dyer . Dyson . Ealing . Eastall. Eecles . Edmeads Edmunds Edward Edwards Egerton Eggintou Eldershaw Eldridge Eliot . Ellicombe Elliot . Ellis . Ellison EUor . Elmstead Else . Elsworth Emden Emmons England Enoch Esop . Esser . Etherington Evans Fagent Fagg . Fallows Farrell Farrington Fauntleroy Fawcett . Fearnley . 544 237, 402, XXXVl COL. . 741 717, 815 . 387 . 847 848 . 102 303, 713 . 16 . 221 . 463 450, 570 486, I, 550, 27, 770 836 720 611 270 49 58, 673, 793 115, 202 ... 704 545, 651, 564 . 834 26, 576 . 471 . 461 619, 620 . 631 698, 739 . 188 . 246 . 541 . 542 . 28 431, 486 . 468 374 . 127 . 31 717, 718, 761 ... 611 63, 330, 343, 370, 542, 611, 616, 714, 718 . 612 80, 327 21, 516 . 744 . 225 58, 794 . 223 811, 816 . 50 . 261 . 612 . 95 . 237 . 695 . 813 754, 771 430, 739 . . 21 631, 681 . . 361 191, 260, 425, 634 461, 464 . 754 612, 752 . 328 . 57 243, 257 . 249 649, 656 747. 786, Digitized by Microsoft® XXXVll TABLE OF CASES. XXXVIU Eex V. Ferguson — V. Fidler . — V. Field . ■ — V. Fielder — V. Fieldhouse — V. Filewood — V. Finch . — V. Finmore — V. Finuoane — V. Fisher . — u. Fitzpatriok — V. Flanagan — V. Flannagan — V. Fletcher — V. Flint — V. Flower — V. Folkes — V. Forbes — 1). Ford — V. Forsgate — V. Forsyth — V. Foster — V. Fouseea — V. Fowler — V. Francis — V. Franks — V. Fraser . — V. Fray . — V. Freeman — V. Freeth . — V. French — V. Friend . — V. Frond . — r. Fry. . — V. Fuller , — V. Furnival — V. Fursey — V. Gaby . ^ ii. Gade . — V. Gahagan — -u. Gainer . — V. Gardener — V. Gardner — V. Garratt — V. Garside — V. Gascoigne — V. Gay — v. Gibbons — V. Gibson — V. Gidwood — 11. Gilbert — V. GDbie . — V. Gilchrist — V.' Giles . — V. Gilham — V. Gilkes . — V. Gill . — V. Gillbrass — V. Gilles — V. Gillow . — V. Girdwood ■ — V. Glandfield — V. Glenn . — • V. Glover . — V. Gnosil . — V. Gogerly — V. Goldstein — V. Goodhall — V. Gordon V. Gordon (Lord V. Gotley . . . 105, 459, 534 OOL. 134, 432 . 407 . 254 . 805 606, 649 . 846 . 846 . 850 503, 582 . 406 . 812 . 349 . 77 471, 798 . 197 . 841 . 520, 674 236, 281, 792 448, 666, 830 374 329 Rex 552, 750 . . 705 . 807 . . 235 95 '. 70, 486 436 . . 146 . . 196 . . 85 427, 455, 492 . . 248 368, 577 76, 107, 612, 673, 752 . . 89 601, 602 . . 376 256 . . 638 . . 575 . . 486 . . 611 . 595 . . 472 611, 724 . . 467 77, 739 79, 251, 272, 650, 691 ... 681 ... 315 852 . 237 . 15 711, 736 . . 648 ... 124 338 . . 619 ... 485 623, 631, 632 55 . 652 595 611 28 . . 230, 237 ... 181 18, 41, 46, 70, 449, 456, 634 George) . . 634, 635, 636 218 V. Gough . V. Gourlay V. Gowan V. Grady . V. Graham V. Grainger V. Gray . V. Green . V. Greenacre V. Grey (Lord) V. Grice ■0. Griffin V. Grimes V. Groomhridge V. Grote . V. Grounsell V. Grout . V. Grove. . V. Hailey . V. Haines V. Hake . V. Hall . V. Halloway V, Halton V. Hamilton V. Hammon V. Hammond V. Hampton V. Hancock V. Handley V. Hanks . V. Harding V. Hardy . v. Hargrave V. Harley V. Harm . V. Harmwood v.. Harrie . V. Harris . 74, 139 158, 448, 160, COL. . 674 . 26 . 47 . 752 248, 663 . 691 . 520 733, 742 39, 455 . 117 . 577 744 . '368 . 21 . 705 . 451 . 444 161, 165 535, 559 74, 564 . 221 471, 612 . 370 . 685 . 128 140, 300 324, 631 . 239 78 674 536 . 325 636 . 768 474 V. Harrison . . V. Hart . V. Hartel . r. Hartley . V. Harvey . . V. Hassell . . V. Hastings . . V. Haswell . . V. Haughton V. Hawkeswood . V. Hawkins V. Haworth V. Haydon ■I). Haynes I!. Hayward V. Haywood V. Headge V. Healey V. Hearne V. Heath . 521 . 632 47, 76, 100, 238, 248, 286, 289, 290, 476, 483, 547, 666, 676, 684, 750 .... 266, 321 233, 291, 330, 336, 659 . . . 724. ... 149 266, 309, 744 ... 851 . 411, 768 . . 827 . 49, 50, 417 233, 281, 792 , 30, 86, 612 280, 281, 757, 794, 795 349, 807 . '. 652 437, 463 . 417 V. Helsham V. Heming V. Hemming V. Hemp . V. Hempstead V. Hems . V, Hench . -!>. Hensey V. Hevey . V. Heydon . 141 . 658 746, 748 . . 107 . 346 470 624 524 . 560 . . 673 ... 449 •. . . 316 . 634, 796 239, 285, 792 . . 846 , B 2 Digitized by Microsoft® XXXIX TABLE OF CASES. Eex COL. Hickman .... 345, 457, 611, 628 Higgius 747 Higley 114 Hill .... 182, 207, 406, 519, 720 Hind 63 Hindmarsh 456 Hipper . . 652 Hoare 221 Hobson 162, 681 Hodges 101, 347, 348 Hodgkiss 78a Hodgson ..... 140, 163, 426, 522 Holden 280, 285, 705 HoUingterry . . . 119,128,804,805 HoUingshead 751 HoUis 647 HoUoway 836 Holt 477, 478, 805, 837 Hood 447, 774 Hooper 698 Hope 255, 267 Hopes ... 749 Horne-Tooke 636 Horner 316 HorweU 237 Hough .290 Howard .... . . 554 Howe . 414, 632 Howell 329 Howes 742, 820 Hewlett 483 Howorth 200, 481, 485 Hutson ... . . 425 Huoks 461 Hudson 370 Huet 281, 791 Hughes . . 16, 73, 147, 417, 478, 605 HugOl . 36'2 Hungerford 89 Hunt . . . 131, 481, 602, 603, 684, 720, 788, 804, 831 Hunter 277, 280, 795 Hutchins 407 Hutchinson 375, 462 Ingleton . . 847 Isaac 47 Isaacs 41 Jackson . . 193,311,517,611 Jacobs 65, 620 Jagger 773 James 278, 280, 284, 605 Jarvis 39, 87, 477 Jellias .638 Jenkins . . ... 86, 744 Jenks 88 Jennings 619 Jenson . 168 Jervis . . ... 397 Jobling . .... 86 John . . . 337, 461, 466, 751 Johnson . ... 73, 161, 660, 847 Johnston 651 Jones . . 77, 86, 166, 223, .230, 259, 267, 328, 360, 564, 611, 659, 673, 690, 710, 737, 746, 749, 768, 776, 797, 842, 846 Jordan . 29 Joyce 101 Judd ... ... 66 Kelly 28, 95, 451 Kelsey 844 Kendrick 574 Rex V. Kennett — V. Kenworthy — v. Kernon — V. Kessel . — V. Kilminster — V. Kinder — V. King . — V. Kingston — V. Kinnear — V. Kinsey — V. Kirkwood — V. Kirwan — V. Kitchen — V. Knewland — V. Knight — V. Knill . — V. Kroehl. — V. Lad — V. Lafone . — V. Lamb - — V. Lambe . — V. Lapitr . — v. Lara . — V. Lavey — V. Lawrence . — V. Lea . . . — u Leadbetter — V. Lee . . — V. Leech — V. Leefe — V. Leigh — V. Lennard . — V. Levy . . — V. Lewis . . — ■!). Littigo . — V. Lloyd . . — V. Locker — V. Lockett . — V. Long . . — V. Longden . — V. Longstreeth — V. Lovel . . — V. Lovelass . — V. Lovell . — V. Lynch . — V. Lynn . — V. Lyon . . — V. Lyons . . — V. Macarty . — V. Macaulay . — V. M'Carther — V. Macdaniel — V. Macdonald — V. M'Gregor — V. M 'Growth er — V. M'Intosh — V. Macherel — V. McKern — y. M'Makin — V. M'Nainie — V. Madan . — V. Madox . — V. Major . — V. Mallinson — V. Mariners — V. March — V. Margetts — V. Marks — V. Marsden — V. Marsh . — V. Marshall xl OOL. ... 604 . 810, 841 ... 398 ... 434 . . 580 923 38,' '239, 684 649, 662, 733 721, 804 . 710 29, 291 . 136 . 477 610 16, 17, 81 662 709 451 130 720 . 749 609, 610 193, 200 . . 100 74,75 . 698 . 390 39, 561, 770 ... 156 554, 567 . 320, 368 ... 104 . 134, 319 74, 257, 414, 674 79 0, 462, 619, 623, 614, 631, 733, 788, 814 . 130, 774 30, 240, 576 . . 587 . . 450 316 . . 477 . 570 166, 277 . . 436 . . 674 244, 267 . . 76 198 . . 610 648, 668 425 . . 651 ... 169 18, 634 231, 263, 276 407 651 28 326 813 328 628 343 27, 94 55 86 571 731 198, 656, 712, 713 . . 235, 669 Digitized by Microsoft® xli TABLE OF CASES. xlii Kex V. Martin — V. Mason . — V. Mastin — V. Mathews — V. Mattos — V. Mawbey Mayhew Maynard Mazagora Mead . Meakin Meilheim Mellor Mercier Meredith Messingham Middlesex (Justices) MiUar Millard MUler MiUs . Milton MitcheU Mitton Moate . Moffatt COL. 76, 267, 269, 279, 333, 445, 452, 622, 572, 826 168, 200, 437, 610 . . 31, 444 ... 667 ... 469 124, 802, 804 . 277, 659 ... 562 Moore . Morfit . Morgan Morris Morrison Morton Mosley Mott Mountford Moyle Mucklow Mnlreaty Monday Munton Murphy Murray Muirow Mytton Napper Nash . Neal . Nettleton !Newell Nibbs . Mchol . NichoU NichoUs Nicholson Nixon . Noakes Noon . Norris . North . Norton Nottingham Oakley O'Donnell Offord . Ogden . Ogilvie Gorman Mahon Oldfleld . . . 104. 198, 17, 279 137, 336, 462, 560 ... 20 311 . . 592 ... 685 ... 492 . . 396 . . 656 ... 645 . 290 . 812, 828 . . 733 . . 501, 835 191, 259, 261 . 501, 835 ... 852 ... 231 418, 788 571, 610, 791, 793 302 776 36, 559, 658, 666 458 233, 281, 792 744 . 451 120, 417 . 477 . 417 . 354 620 . 346 . 558 . 31 139, 161 483 . 649 660, 661 47, 576 . 769 . 146 56, 57 . 369 . 496 . 549 123, 711 309, 454 80 OOL. Rex V. Oliver 314 — V. Orrell 724 — V. Osbom 646, 688 — V. Osborne ... 852 — 0. Osmer ... 503 — V. Owen 28, 360, 581 — 11. Owens 417 — V. Oxford 105 — V. Paddle 624 — V. Paine 79, 844 — V. Palmer . . . 101, 225, 287, 350, 677 — V. Parfait 616 — u. Parker 78, 107, 194, 345, 371 — V. Parkes 234, 311 — V. Parkin 378, 801 — V. Parkins 728 — V. Parnell 836 — V. Parr .572 — V. Parrott .... . . .50 — V. Parry 697, 698, 719 — V. Partridge 384, 738 — V. Pasman 847 — V. Passey 27, 576 — V. Patch 198 — V. Pateman 232 — V. Patience 447 — V. Patrick . 414, 711 — V. Patty 417 — V. Paul 704 — V. Payne 483, 578 — V Peacock .... . 235 — V. Pear 313 — V. Pearce 351, 503 — V. Pearson 351, 352, 765 — V. Peat 609 — V. Pedley 542 — V. Pelfryman . . 613 — V. Pelham 492 — V. Penpraze . 684 — V. Penson . 63 — V. Pepys . . 542 — V. Perkes 74 — V. Perkins 34, 378, 596 — V. Perry 46, 773 — V. Phillips . . 136, 301, 515, 669, 696 — V. Philp 411 — V. Phipoe 330 — V. Pickford .623 Pike 364, 461 678 255, 667 603, 604 . . 304 . . 696 V. Piller . e. Pine . V. Pinney V. Pitman u. Plant . V. Piatt 707 ■,;. Plumer 792, 797 V. Pose .225 V. Potts 27, 572 V. Poulton 430, 453 768 — V. Powell . . . 268, 278, 521, 776, 844 435 — V. Powles 476 78, 119 — V. Pratley 329 67 — V. Pratt 315 662 — V. Pressly ' 749 847 — V. Price 16, 567, 578, 607 219 — V. Prince 167 710 — V. Pringle 243, 257, 572 21 — V. Pritchard .... .... 686 255 — V. Probert 47 V. Prosser 86 816 — V. Prowes . 365, 379 799 — V. Puckering 370 Digitized by Microsoft® xliii TABLE OF CASES. xliv Rex V. Randall OOL. 1 233 Kex ■u. Searle . . COL; . . 23 — V. Rankin . . . . ... 435 — -..Sears »"» — V. Ratoliffe 685, 718, 731 — ■.. Sefton . ... ■ ■ ■ ,ln — V. Ravenscroft . . . . . . 261 — ..Self ... -440 — V. RawlingS . ... 85 — ■u. Sellers . . . ■ ■ ■ f ?1 — V. Rawlins ... 338 — ■u. Sellis . ... . . iOs, Warehouses, or Countvng- 10. Indictment, 84. 11. Evidence a/ad Trial, 89 Coining. 1. Statute, 91. 2. Counteifeiting and Uttering Gold and Silver Coin, 91. 3. Counterfeiting and Zfttering Cop- per Coin, 97. 4. Counterfeiting and Uttering Foreign Coin, 98. 5. Colouring, 99. 6. Impairing or Lightening Gold or Silrer Coin, 100. 7. Buying or Selling Counterfeit Coin, 100. 8. Exchanging Coin at higher than its Value, 101. 9. Importing or Exporting Counter- feit Coin, 102. 10. Defacing Gold, Silver, or Copper Coin, 102. 11. Testing Genuineness of . Gold or Si'h-er Coin, 102. 12. Implements for Coining, 103. 13. Unlawful Possession of Base Coin Filings, or Clippings, 106. 14. When Offence Complete, 107. 15. Conveying Coining Tools or Coin from tlie Mint without Autho- rity, 107. 16. Evidence, 107. 17. Previous Conriction, 108. 18. Validity of Convictions and Com- mitments, 109. 19. Power to Seize Counterfeit Coin and Coining Tools, 109. 20. Apprehension of Offenders, 109. 21. Prosecution and Trial of Offen- ders, 109. 22. Punishment, 110. 23. Costs of Prosecution, 110. 24. Actions against Persons acting in Pursuance of the Statute, 111. CEIMINAL LAW. XI. Concealment op the Bieth of Childben. 1. Statute, 111. 2. Cases Decided thereon, 112. 3. Cases Decided tefore the Passing of the Statute, 113. i. Indictment, 115. XII. CONSPIEACy. 1. What -a, 116. 2. For what Indictment lies. a. Generally, 116. b. Trade Combinations, 122. 3. iTidiotment. a. "Who Indictable, 123. b. Form of, 123. 4. Particulars of Ofert Acts, 128. 5. Bvidence, 128. 6. Trial and Verdict, 135. 7. New Trial, 136. XIII. Duelling, 136. XIV. Embezzlement by Clerks and Servants. 1. Statute, 137. 2. Wliat may be Embezzled, 137. 8. What 'is Embezzlement, 138. i. Clerh or Ser-cant, who is, 145. 5. Prisoner not to be Acquitted if Larceny Proved, 154. 6. Indictment. u. Averment as to -vrhose Service, 155. b. Averment as to whose Money or Goods, 159. c. Other Points, 160. 7. Trial and Evidence, 161. XV. Embezzlement and Feauds by Agents, Bankees, Tedstees, AND Othees. 1. Agents a/rtd Banhers, 166. 2. Trustees, 170. 3. Directors, Members, and Officers of Companies, 171. 4. Disclosure of Circumstances, 172. 14. Clieafs, 198. 15. Amounting to Larceny, 199. 16. Indictment. a. Parties Indictable, 199. b. Form and Contents of, 200. n. Evidence, 205. 18. Venue, 209. 19. Receiving Property obtained by False Pretences, 210. 20. Effect of False Pretences on Con- tracts, 211. XVII. Felony and Felons. 1. Rights of the Crown, 211. 2. Validity of Assignments by Felons, 213. 3. Effect of Pardon, 214. 4. Other Points relating to, 215. 5. Compounding Felonies and Infor- mations, 217. XVIIT. FOECIBLB ENTEY AND DETAINEE, 218. XVI. False Peetences and Cheats. 1. Statute, 174. 2. General Principles, 174. 3. In respect of what Chattels or Securities, 182. 4. As to Quantity or Weight of Ar- ticles of Merchandize, 183. 5. As to Quality or Value of Articles of Merchandize, 184. 6. By Promises of Marriage, 186. 7. Representations as to Business, 187. 8. Arising out of Contracts, 188. 9. By Means of False Orders, 189. 10. By Means of False Accounts, 191. 11. By Means of Chegues, Bills of Exchange, Promissory Notes, 193. 12. Inducing Persons by Fraud to Execute or Destroy Valuable Securities, 195. 13. By Passing off' Flash or Worth- less Bank Notes,_ 196. Digitized by Microsoft® XIX. FOEGBEY AND UTTEEING Insteuments. Foeged A. 'Forgery. 1. Statute, 223. 2. General Principles, 223. 3. Particular Offences. a. Bank Notes, 224. b. Bills of Exchange and Pro- missory Notes. i. The Offence, 230. ii. Indictment, 236. iii. Evidence, 238. c. Cheques, 240. d. Documents Purporting to be made Abroad, 242. e. Court Rolls, 243. /. Debentures, 243. g. Deeds or Bonds, 243. h. Evidence, Instruments of, 245. i. Exchequer Bills or Bonds, 246. j. India Bonds, Stock, or Certi- ficates, 247. li. Marriage Licences or Certifi- cates, 247. I. Orders and Proceedings of Magistrates, 248. 7«. Records, Judicial and Curial Process, 248. n. Registers of Births, Marriages, and Deaths, 251, 0. Registry of Deeds, 252. Seals of the Kingdom, 253. Stamps and Marks on Plate, 253. Stock Ceitificates and Coupons, 255. Trade Marks, 255. Transfer of Stocks, &c., and Powers of Attorney, 255. Warrants, Orders, Under- takings, Requests, and Re- im- t. V. ceipts for Goods or for Money. i. Statutes, 257. ii. In respect of 258. Goods, CEIMINAL LAW. iii. In respect of Money, 260. iv. ■ Indictment and Bvi- ■ dence, 268. V. Wills, 271. w. Other Instruments, 273. i. Ohtaining Property upon Forged Instrttments, 274. 5. Indictment, Evidence, and Prac- tice, a. Parties Indictable, 275. h. Form and Contents of Indict- ment, 276. f. Proof of Possession, 277. (/. Allegation and Proof of In- tent to Defraud, 278. e. Evidence generally, 280. /. Witnesses, 282. g. Jurisdiction to Try, 283. h. Election of Forgeries, 284. •;. Punishment, 284. j. Costs of Prosecution, 284. k. Power to Seize Forged Instru- ments, 284. B. Uttering Forged Instruments. 1. Wliat is an Uttering, 285. 2. Evidence and Trial, 285. C. Effect of Forgery, 292. XX. GOVBENMBNT StOBES, 296. XXI. GUNPOWDBE, 298. XXII. Laeckmy and Ebcbivbes. A. Larceny. 1. The Offence. a. Felonious Intent, 300. *. The Taking, 304. e. Where Delivery by Owner passes Possession and Kight of Property, 309. d. Where Possession obtained animo furandi, 312. e. Where Possession originally ob- tained bonS, fide — Subse- quent Felonious Intent, 319. /. Where Delivery does not Alter the Possession in Law, 323. g. Against Will of the Owner, 326. A. Carrying Away — Asportation, 327. i. Possession of Owner, what Sufficient, 330. 2. Wliat are the Subject of Larceny, a. Generally, 332. h. In Particular Cases. i. Documents, Bills, Secu- rities, &c., 334. ii. Horses, Cattle, &c. ,838. iii. Deer, 338. iv. Doves or Pigeons, 340. V. Fish, 340. vi. Dogs, 343. vii. Birds and other Animals, 344. viii. Carcases or Skins, 344. ix. Fixtures, 345. X. Trees, Shrubs, Vege- tables, and Fences, 346. 3. Persons who may Commit Offence. a. Clerks or Servants, 349. J. Tenants or Lodgers, 349. c. Persons in the Queen's Service, or the Police, 350. d. Post Office Servants and Others, 361. e. Fraudulent Bailees, 354. 4. Taking in Particular Places. a. From the Person, 359. 1>. In a Dwelling-house, 360. c. In Manufactories, 362. d. From Mines, 363. e. From Ships in Ports, or on Navi- gable Rivers or Wharves, 364. /. Abroad, or on the High Seas, 364. 5. Indictment. a. Generally, 365. i. Description of Thing Stolen, 367. u. Allegation and Proof of Owner- ship of Property, 371. 6. Trial. a. Jurisdiction to Try, 378. b. Practice, 379. c. Evidence, 381. d. Recent Possession of Stolen Property, 384. e. Punishment, 386. 7. Restitution and Beeovery of Stolen Property, 386. 8. Effect of Larceny on Ownership of Property, 391. B. Receivers of Stolen Property. 1. Statutory Pro'dsimis, 392. 2. Wliat is a Receiving, 393. 3. What is Stolen Property, 395. 4. Joint Receivers, 396. 5. I}idictment, 397. 6. Trial. a. Jurisdiction, 398. 6. Practice, 399. c. Evidence, 400. XXIII. LiBBL. — See Dbfamatiojt — Fisher's " Digest." XXIV. Malicious Injuey to Peopbety, Cattlb, and othbe Animals. 1. Houses or Buildings, iy Tenants, 404. 2. Mamifactures and Materials, 404. 3. Machinery, 406. 4. Mines, 408. 5. Sea and River Banlis, 410. 6. Ships and Sea Signals, 411. 7. Fish Ponds, 413. 8. Trees, Shrubs, Fences, and Vege- tables, 413. 9. Sop-binds, 415. 10. Worhsof Art, 416. 11. Killing or Maiming Cattle or other Animals, 416. 12. Real or Personal Property to Amount of 61., ^c, 418. Digitized by Microsoft® 13. Indictment, 419. 14. Arson and Burning Aeson. CEIMINAL LAW. , — See ante, 8 XXV. MiSDBMEANOKS. 1. Where Mvidenoe Proves a Felony, 420. 2. At Common Law, 420. 3. Practice, 423. 4. Attempts to Commit. — See ante, Attempts to Commit Of- fences. XXVI. MUEDEE, MANSLATTGHTEE, AND OF- FENCES AGAINST THE PERSON. A. Murder and Manslaughter. 1. Statute, 424. 2. Unlawful Killiiig, 424. 3. Reasonable Creature in Beijig, 430. 4. Malice, Express or Implied. a. . By Poison or Operations, 431. 0. By Fighting, 433. d. Upon Provocation, 435. ('. By Correction, 437. /. In Defence of Property, 438. g. Killing without Intention whilst doing another Act. i. Blow Intended for Another, 438. ii. Negligence by Omission or Commission, 439. li. Killing Officers of Justice, 446. i. Killing by Officers of Justice, 449. ./. Killing in Self- Defence, 450. 5. Indictment, 450. 6. Evidence. a. Generally, 455. T>. What Admissible, 458. c. Dying Declarations, 461. 7. Trial, Sentence, and Punisliment, 467. 8. Conspiring or Soliciting to Com- mit Murder, 472. 9. Attempts to Murder. a. By Administering Poison, 474. b. By Shooting, Wounding, Drown- ing, Suffocating, or Strang- ling, 475. (•. By the Explosion of Gunpowder, &c., 478. • d. By Setting Fire to or Casting away Ships, 479. e. PreTenting Rescue from' Ship- wreck, 479. /. By other Means, 479. B. Assault, Battery, Wounding, &o. 1. Shooting, Wounding, ^-c, with Intent to Maim, ^c, 480. 2. Administering Chloroform to commit Indictable Ojfence, 487. 3. Administering Poison with In- tent to Endanger Life, Aggrieve or Aimoy, 487. 4. Injuring Persons by Explosive or Corrosive Substances, 488. 5. By Spring Guns, 489. 6. Injuring Persons by Wanton or Furious Driving, 489. 7. Ill-treatment of Helpless Persons, 490. 8. False Imprismiment, 493. 9. Assault. a. Common Assaults, 494. b. On Clergymen or Ministers of Religion, 498. u. On Magistrates or other Per- sons preserving Wrecks, 498. d. On Peace and other Officers in Execution of Duty, 499. e. On Seamen, Keelmen, or Casters, 501. /. On Obstructing Sale of Grain or its Free Passage, 502. g. Arising from Trade Combina- tions or Conspiracies, 502. /(•. Occasioning Actual Bodily Harm, 502. '/. Indictment and Evidence, 502. j. Punishment, 503. li. Costs of Prosecution, 503. I. Summary Convictions, i. In what Cases, 504. ii. Hearing and Certificate, 506. Trial, 510. 10, C. Abortion, Attempts to Procure, 513. D. Bape, and Assault on Women and Children. 1. Rape. a. Statute, 515. b. Who Capable of Committing, 516. c. Upon whom Committed, 516. d. The Offence, 516. ('. Indictment, 520. /. Trial, 520. g. Evidence, 521. 2. Carnally Abusing Children, 524. 3. Indecent Assaults on Females, 528. 4. Procuring Defilement of Oirl under Twenty-one, 529. XXVII. Obscenity and Indecency. 1. Obscene Prints and Pictures, 529. 2. Indecent Exposure, 531. XXVIII. Pbejuky, False Oaths, and False Declarations. 1. Perjury. a. The Offence. i. General Principles, 533. ii. Judicial Proceedings, 534. iii. Court of Competent Juris- diction, 536. iv. Matter must be Material, 539. Digitized by Microsoft® CEIMINAL LAW of Statement, 10 V. Falsity 542. Ti. Deliberate Intention, 543. h. Indictment. i. Averments, Form of, 543. ii. Amendment of Variances, 553. c. Evidence. i. Generally, 554. ii. Number of Witnesses and Corroboration, 561. d. Trial, 564. 2. False Declarations, a. Customs, 566. J. On Eegistration of Voters, and at Parliamentary Elections, 566. c. Municipal Elections, 567. d. Before Magistrates, 568. e. On Eegistration of Births, Deaths, or Marriages, 569. 8. Unlawful Oaths, 570. XXIX. Personation. 1. StocTtholders, 571. 2. Seamen and Soldiers, 572. 3. Voters, 572. 4. In other Cases, 573. XXX. POACHINO, AND OFFENCES RE- LATING- TO Game, Hakes, and Eabbits. 1. Sy Night. a. The Offence, 574. T). Apprehension of Offenders, 577. c. Limitation of Time for Pro- secution, 579. d. Indictment, 580. e. Evidence, 583. f. Convictions and Commitments, 584. g. Informations, 584. 2. In Day-time. a. The Offence, 585. J. Information and Complaint, 586. c. Apprehension of Offenders, 587. d. Ousting Jurisdiction of Justices, 588. e. Evidence, 591. /. Convictions, 592. 3. Unlawful Possession of Game, 594. 4. Hares and Raliits, 595. XXXI. POISONINS. 1. Placing Poison in Plantations, 59o. 2. llurdet: ty. — See ante, Mtjeder, and Offences against the Peeson. 3. Administering Poison with Intent to Murder. — See lb. 4. To Procure AT)07-tion. — See Ih. XXXIII. Eailways and Telegraphs. 1. Endangering Safety of Persons on Railways, 597. 2. Ohetruoting Engines or Carnages, 599. 3. Injuring Telegraphs, 600. XXXIV. RAPE, Abuse, and Defilement OF Women and Children. — See Murder and Offences against the Person. XXXV. Riots and Unlawful Assem- blies. 1. The Offence, 601. 2. Duties of the Magistracy, 603. 8. Aiding and As.sisting the Con- stabulary, 605. 4. Indictment, 605. 5. Evidence, 606. 6. Injuries to Property by Rioters, 606. XXXVI. Robbery. 1. The Offence, 609. 2. Oarotting, 618. 8. Indictment, 613. 4. Evidence, 614. 5. Trial, 614. 6. Assault with Intent to Rob — Vio- lence, 616. 7. Punishment of Whipping, 617. XXXVII. Sanitary Laws. — See Hbalth — Fisher's " Digest." XXXVIII. Sedition, 618. XXXIX. Sepulture, 618. Desecration of, XXXII. Prkb Fights, 596. XL. Sodomy and Bestiality, 620. XLI. Suicides and Self-Maiming, 621. XLI I. Threats and Menaces, Obtain- ing Money, &c., by. 1. Demanding Money or Valuables with Menaces, 622. 2. Threatening to Accuse of Crime, or Obtaining by Violence, 626. 3. Letters Threatening to Burn or Destroy, 628. 4. Letters Threatening to Mwrder. 629. 5. Tliredtening to Sue for Penalties, 630. 6. Tlireatening to Publish Defama- tory Matter, 630. 7. Indictment, 631. 8. Trial and Ecidence, 631. XLIII. Treason and Tebason-Fblony. 1. Treason. a. The Offence, 633. h. Indictment, Practice, and Evidence, 635. 2. Treason-Felony, 639. XLIV. Treasure Trove, 641. Digitized by Microsoft® 11 CEIMINAL LAW. 12 C. PROCEDUKE AND PRACTICE. I. JUBISDICTION. 1. Admiralty Jurisdiction, 641. 2. Quarter Sessions, 643. 3. Central Criminal Cowt, 644. II. Indictment. 1. When it Lies, 646. 2. Grand Jury, Powers of, 649. 3. Demurrer and Quashing Indict- ment, 649. 4. Trial when Indictment is not Good, 652. 5. Binding over Prosecutor to Pro- secute, 653. 6. Copy of Indictment, SfC, 655. 7. Caption, 656. 8. Several Counts, 657. 9. j1« roof of the insanity is incumbent on his counsel. Reg. v. Turtmi, 6 Cox, C. C. 385. Commitment.] — ^A commitment of an insane person, under 39 & 40 Geo. 3, c. 94, s. 3, is not a commitment in execution, and is not to be con- strued with the same strictness. Rex v. Gomr- lay, 7 B. & C. 669 ; 1 M. & R. 619. Rut see 1 & 2 Vict. u. 14. 10. PEERSk (4 4- 5 Viet. c. 22.) II. DBGKEES OF CRIMINALITY. 1. Priucipals. 2. Accessories, 35. 3. Practice relating thereto, 39. 1. Principals. When Act Committed by Means of Innocent Agent.] — See ante, col. 14. Presence at Time of Committing Offence.] — If all the prisoners on an indictment for poaching are associated together for that common purpose, and some of the party actually enter a field to efEect that purpose, while the others remain near enough to aid and assist, they may all be con- victed under an indictment charging them with being in such place for such purpose. Reg. v. Whittaher, 2 C. & K. 636 ; 1 Den. C. C. 310 ; 3 Cox, C. C. 50 ; 17 L. J., M. C. 127. On a charge of poaching it is not necessaiy to prove that all the prisoners were within the same close if they all were of one party with the same purpose in the place described in the indictment. Reg. V. Eaton, 2 Den. C. C. 274 ; T. & M. 598. To support an indictment for night-poaching by three or more, it is riot suificient to prove that one of the prisoners was in the place laid in the indictment and that the rest of the party was in another wood which was separated from the place mentioned in the indictment by a turnpike road. Rete v. Dowsell, 6 C. & P. 398. Digitized by Microsoft® 27 CRIMINAL LAW — Degrees of Criminality. Tiose who are watching at the outside of a preserve for the purpose of giving the alaim, on the approach of the gamekeeper, to others who are in the preserve, and who afterwards go into the preserve for that purpose, are equally guilty with those who enter the preserve at first. Rex y. Passeij, 7 C. & P. 282. On a charge of personating a seaman, all persons aiding and abetting are principals, and the offence is not confined to the person only who pei-sonates the seaman. Sex v. Potts, R. & B., C. C. 353. ■ Where two persons go out to fight a deliberate duel and death ensues, all persons who arc pre- .sent encouraging and promoting that death will be guilty of murder. Reg. v. Cuddy, 1 C. & K. 210. Mere presence at a duel is not sufiicient to make spectators principals in the combat ; if, however, they sustain the principals either by advice or assistance, or go to the ground for the purpose of encouraging and forwarding the un- lawful conflict, although they do not say or do anything, yet if they are present assisting and encouraging by their presence at the moment when the fatal shot is fired, they are, in law, guilty of murder. Reg. v. Young, 8 0. & P. 644. If two utterers of counterfeit coin, with a general community of purpose, go different ways, and utter coin apart from each other, and not near enough to assist each other, their respective utterings are not joint utterings by both. Rex V. Manners, 7 C. & P. 801. See R^g. v. Iliirse, 2 M. & Eob. 360. On an indictment for a joint uttering of counterfeit coin where both are not present at the time of the uttering, the true question seems to be whether the one was so near the other as to help the other to get rid of the counterfeit coin. Reg. V. Jones, 9 C. & P. 761 ; 2 M. C. C. 85 ; 2 Lewin, C. C. 119, 297. Two prisoners together uttered counterfeit coin ; they separated and one of them uttered on two occasions two counterfeit coins, but at the last utterings the former was not proved to have been near the other : — Held, that the proof of previous concert would not sustain a count of joint uttering in either the second or third utterings. Reg. v. West, 2 Cox, C. 0. 237. If a man encourages another to murder him- self, and is present abetting him while he does so, such person is guilty of murder as principal. Rex V. Dyson, R. & R., C. C. 523. Where three persons were indicted jointly for cutting and wounding, and the third of them did not come up to the spot until after one of the first two had got away, and then kicked the prosecutor while he was on the ground struggling- with the other : — Held, that the two who jointly assaulted the prosecutor, and wounded him at first, might be found guilty either of the felony, or of the assault only, but that the third must, under the circumstances, be acquitted altogether. Reg. V. M'PUane, Car. & M. 212. Where a prosecutor left his goods in a cart jStanSing in the street, and M. came and led the cart away, and having taken it a short distance, delivered it to another man with directions to take it to his, M.'s, house. Upon the cart arriving at the house, S., who was at work in the cellar, having directed a companion to blow out the light, came up and assisted in removing the goods irom Ijhe cart : — Held, that S. could not be in- 2a dieted as a principal. Rex v. M-MaUn, E. & R. 0. C. 333, n. And see Rex v. Diier, 2 East, P. C. 767. In order to constitute the offence of stealing in a dwelling-house, and by menaces and threats putting persons being therein in bodily fear, it is not necessary that all the persons engaged in the crime should be actually in the house ; and if one remains outside, he may be equally guilty of using menaces and threats, if there was a com- mon purpose to inspire teiTor. Req. v. Mwrphii, 6 Cox, C. C. 340. -I X J^ A. and B. were indicted for larceny as princi- pals ; A. had been sent by his master to deliver goods to C. He only delivered part, and the rest was stolen, and found in the possession of B. :— ^• Held, that it was a question for the jury whethcF B. was present at the time when A. separated the stolen portion fi-om the bulk ; for that if he was, both were rightly charged as principals. Rex v: Butteris, 6 C. & P. 147. J. had employed M. to load sacks of oats, the property of J., from a vessel in the trams of K., who was to cany them on the trams to the ware- house of K. By previous concert between. M. and K., oats were taken by M. from two of the sacks and put into a nose-bag in the absence of K., and hidden under a tram. K. returned in a few minutes, and took the nose-bag, and its con- tents, from under the tram, and took them away, M. being then within three or four yards of him : — ;Held, that, as it was all one transaction, and both had concurred in it, and both had been present at some part of the transaction, both , could be convicted as principals in the larceny, Reg. v. 3PCartliy, 2 C. & K. 379. Where, on an indictment for privately stealing in a shop, it appeared that there were several acting together, some in the shop and some out, for the purpose of assisting those in the shop, and the property was stolen by the hands of one of those who were in the shop : — Held, that those who were on the outside were equally guilty as principals. Rex v. Gogerly,'S.. & R. C. C. 343. Going towards a place where a felony is to be committed in order to assist in carrying off the property, and assisting accordingly, will not make a man a principal, if he was at such a distance at the time of the felonious taking as not to be able to assist in it. Rex v. Kelly, R. & R. C. C. 421. A person waiting outside of a house to receive goods, which a confederate is stealing in the house, is a principal in the theft. Rex v. Owen, 1 M. C. C. 96. It is not sufficient to make a man a principal in uttering a forged note, that he came with the utterer to the town where it was uttered, went out with him from the inn where they put up, joined him again in the street after the uttering at a little distance, and ran away when the ut- terer was apprehended. Rex v. Davis, E. & E, C. C. 113. If A. unlocks a door of a room of which he has the key, in order to allow B. to commit a larceny in it, and A. then goes away, and B., in his absence, enters the room and removes articles out of it, A. is not a principal in the larceny. Reg. V. Jeffries, 3 Cox, C. C. 85. A room door was latched, and one person lifted the latch and entered the room and concealed himself, for the purpose of committing a robbery there, which he afterwards accomplished. Two other persons were present with him at the time Digitized by Microsoft® GEIMINAL 'LA^R— Degrees of Oriminality. 29 he lifted the latch, for the purpose of assisting him to enter, and screened him from observation by opening an umbrella : — Held, that the two were in law parties to the breaking and entering and were answerable for the robbery which took place afterwards, though they were not near the spot at the time when it was perpetrated. Hex V. Jordan, 7 Gar. & P. 432. If several plan the uttering of a forged order for payment of money, and it is uttered accord- ingly by one in the absence of the others, the actual utterer is alone the principal. Hex v. Sadcoch, E. & E. C. C. 249. If several combine to forge Bank of Kngland notes, and each executes by himself a distinct part of the forgery, but they are not together when the notes are completed, they are neverthe- less all guilty as principals. Bex v. Bingley, K. & E. C. C. 446. If several make distinct parts of a forged instru- ment, each is a principal, though he does not know by whom the other parts are executed, and though it is finished by one alone in the absence df the others. Rex v. Kirliwood, 1 M. C. C. 304. The makers of the paper and plate respectively, for the purpose of forging a note afterwards filled up by a third peraon, are principals in the forgery with that person, though each executed his part in the absence of the others, and without knowing by whom the other parts were executed. Bex V. Dade, 1 M. C. C. 807. Persons not present, nor sufficiently near to give assistance at the time of uttering forged notes, are not principals, although they may be accessories before the fact. Bex v. Stewart, E. & K. C. C. 363. Where Frincipal Insane.] — A count in an indictment charged A. with the murder of B., and also charged C. and D. with being present, aiding and abetting A. in the commission of the murder. A. was an insane person : — Held, therefore, that C. and D. could not be con- victed on this count. Beg. v. Tyler, 8 C. & P. 616. When , Common Purpose Exists between the Parties. ]^If several are out for the purpose of committing a felony, and upon an alarm run difierent ways, and one of them maims a pur- suer to avoid being taken, the others are not to be considered principals in such act. Bex V. White, E. & E. C. C. 99. If several act in concert to steal a man's goods, and he is induced by fraud to trust one of them in the presence of the others with the possession of the goods, and then another of the party entices the owner away, in order that the party who has obtained possession of the goods may carry them off, all will be guilty of the felony ; the receipt by one, under such circum- stances, being a felonious taking by all. Bex v. atandley, E. & E. C. C. 305. Where two planned to rob the prosecutrix of some coats, and one got her to go with Bim that he might get some money to buy them of her, and she left the coats with the other, who imme- diately absconded vrith them : — Held, that the receipt by the one amounted to a felonious taking of the coats by both. Bex v. Cimnty, 2 Euss. C. & M. 230, 329. Where the evidence against two, indicted for stealing oats, was that one of them took the oats from the prosecutor's sacks, and -placed m them under a cait, and the other came up a few minutes after, and said, " It is all nght, and put the oats in a cart and took them to ms house ; on an objection that there was no evi- dence to connect the latter with the original taking :— Held, that the evidence shewed one transaction in which both concurred. Beg. v. Kelly, 2 Cox, C. C. 171. A. received goods from B. (who was the servant of C.) under colour of a pretended sale : —Held, that the fact of his having received such goods with knowledge that E. had no authority to sell, and that he was in fact defrauding his master, was sufficient evidence to support an indictment for larceny against A. jointly with B. Beg. v. Hornby, 1 C. & K. 305. If two jointly prepare counterfeit com, and utter it in different shops apart from each other, but in concert, and intending to share the proceeds, the utterings of each are the joint utterings of both, and they may be convicted jointly. Beg. v. Hurae, 2 M. & Eob. 360. A., who intended to sell his mare, sent his servant to M. fair, his servant having no autho- rity either to seU the mare or deal with her in any way. The prisoner asked the servant the price, and desired the servant to trot her out ; and the prisoner then went to two men, and; having talked to them, walked away. These two men then came up and pei-suaded the servant to exchange the mare for a horse they had, and they would give 2il. for the chop. They changed the saddles, and, without giving any money, rode away with the mare, leaving the servant with a horse of little value. Four days after the prisoner sold the mare at B., stating that he had got her in a chop at M. fair : — Held, that the prisoner ought to be convicted, of stealing her, provided that the jury was satis- fied that the prisoner was in league with the two other men, and that the three, by a fraud in which each of them was to take his part and did take his part, induced' the servant to part with possession of the mare under colour of exchange, but intending all the while to steal the mare. Beg. V. Slieppard, 9 C. & P. 121. If three persons go out together poaching and two of them stand in the road and send their dog into a field to drive out hares, and after this the third leaves them in the road and goes poaching on his own account, this will not support an indictment against the three, as the third prisoner's poaching was not the joint act of the three. Beg. v. Mcklegs, 8 C. & P. 757. If one of a party of poachers is found in the land specified, the rest co-operating in the pur- suit in adjoining land, aU may be alleged to be found in the land specified. Bex v. Andrews, 2 M. & Bob. 87 ; S. P., Bex v. Lochett, 7 C. & P. 300. But if a gang of poachers attacks a game- keeper and leaves him senseless on the ground, and one of them returns and steals his money t — Held, that one only can be convicted of the robbery, as it was not in pursuance of any common intent. Bex v. Hawkins, 3 C. & P. 392. Two of the prisoners were seen together run" uing out of a coppice, one of them with a gun. The third immediately afterwards came out of it alone with a gun and a pheasant : — Held, insuf- ficient evidence of concert. Beg. v. Janes, 2 Cox, C. C. 185. The offence of poaching is complete if three persons are in one common party unlawfully Digitized by Microsoft® 31 CRIMINAL IjAW— Degrees of Criminality. 32 upon any land for the common purpose of illegally destroying game. Dcg. v. Nezzall, 3 C. & K. 150 ; 2 Den. C. C. 27i ; 5 Oox, C. C. 188 ; 20 L. J., M. C. 192 J 15 Jur. 434. A., B. and C. were indicted for having robbed and beaten D. A. knocked D. down and it was imputed that B. and 0. stole the property from his pockets: — Held,"that if ,B. and G. stole the property and A. did not participate in the robbery, A. could not be convicted of an assault, as the assault committed by him was an inde- pendent assault unconnected with the robbery ; but that if the jury thought that D. was not robbed by any of the prisoners, but had been assaulted by all of them, they might find all guilty of the assault. Beg. v. Barnett, 2 C. & K. 594 ; 3 Cox, C. C. 432. If gamekeepers attempt to apprehend a gang of night poachers, and one of the gamekeepers is shot by one of the poachers, this will be murder in all the poachers, unless it can be proved that either of them separated himself from the rest, so as to shew that he did not join in the act. MeiB v. Edmeads, 3 C. & P. 390. Where gamekeepers had secured two poachera, and they, having surrendered, called to a third, who came up and killed one of the gamekeepers, this is murder in all, though the two struck no blow, and though the gamekeepers had not an- nounced in what capacity they had apprehended them. Bex v. WliitJiorne, 3 C. & P. 394. All persons who even by their presence en- courage a fight, from which death ensues to one of the combatants, although they neither say nor do anything, are guilty of manslaughter. But if the death is caused, not by blows given in the fight itself, but by other parties breaking the ring and striking the deceased with blud- geons, the persons who merely encouraged the fight by their presence are not answerable. Bex T. Murphy, 6 C. & P. 103. If A. and B. agree together to assault C. with their fists, and C. is killed by a chance blow of the fists from either of them, both are guilty of manslaughter. But should A., of his own im- pulse, kill C. with a weapon suddenly caught up, B. would not be responsible for the death, he being only liable for acts done in pursuance of the common design of himself and A. Beg. v. Caton, 12 Cox, C. C. 624. All those who assemble themselves together, with an intent even to commit a trespass, the execution whereof causes a felony to be com- mitted ; and continue together, abetting one another, till they have actually put their design into execution ; and also all those who are present when a felony is committed, and abet the doing of it, are principals in felony. Beg. v. Howell, 9 C. & P. 437. Where two persons are jointly engaged in an unlawful act, they may be severally convicted thereof. Mayhew v. Wardley, 14 0. B., N. S. 550 ; 8 L. T. 504. If each of two persons is driving a cart af a dangerous rate and they are inviting each other to drive at a dangerous rate, and one of the carts runs over a man and kills him, each of the two is guilty of manslaughter. Beg. v. Swindall, 2 C. & K. 230 ; 2 Cox, C. C. 141. If A. and B. are riding fast along a highway as if racing, and A. rides by without doing any mischief, but B. rides against the horse of C, whereby C. is thrown and killed, this is not man- slaughter in A. Bex; v. Mastm, 6 C. & P. 396. If two or more persons go out together with a purpose to commit a breach of the peace, and, in the course of the accomplishment of that common design, one of them kills a man, the other also is guilty of manslaughter. Beg. v. Harrington, 5 Cox, C. C. 231. Two private watchmen, seeing the prisoner and another person with two carts laden with apples, went up to them, intending, as soon as they could get assistance, to secure them ; one of the watch- men walked beside the prisoner, and the other watchman beside the other person, at some dis- tance from the prisoner. The other person wounded the watchman who was near him : — Held, that the prisoner could not be convicted of this wounding, unless the juiy should be satis- fied that the prisoner and the other person had not only gone out with a common purpose of stealing apples, but also had the common purpose of resisting, with extreme violence, any person who might attempt to apprehend them. Bex v. ColUson, 4 C. & P. 565. The doctrine of constructive homicide, as regards offenders not actually present at, or parties to, an act of homicide, but sought to be made liable for it, by reason of their being engaged in a common purpose, in the course of carrying out which the act of homicide occurs, only applies (there being no evidence of a com- mon intent to carry out the purpose at all hazards, and by all means) where the common purpose is felonious ; not where it is merely unlawful, as in the case of a misdemeanor, such as night-poach- ing. Beg. V. Sliect, 4 F. & F. 931. Therefore, where several men were engaged at night-poaching, and in a scuffle with a game- keeper, he was killed by a shot from the gun of one of them : — Held, that whether or not the gun was fired, there being no evidence to shew that the other prisoners were parties to the act of firing it, they were not guilty even of manslaughter, merely by reason of the act of homicide ocoun-ing in the course of poaching. li. More than nine men, of whom seven were armed- with guns, being out at night in pursuit of game, were met, as they passed through a field from one wood to another, by a party of gamekeepers with- out firearms, but who at once assaulted them with sticks ; and one of them with a dangerous weapon, a flail, likely to inflict deadly injury, with which he struck one of the poachers, upon which another of them fired and killed him. The grand juiy was directed to throw out bills for murder against two of the men, one of whom was supposed to have fired the fatal shot, and the whole nine were indicted for manslaughter. There was evidence that they all stood in a row and cried " Shoot " : — Held, that whether or not the man who fired the shot could be identified, none of the prisoners would be guilty unless parties to the act of firing; and that though their being in a row and crying out "Shoot" was evidence that they were parties to the act, it was only evidence, and its effect would depend upon how far all the circumstances shewed that the firing was in pursuance of a com- mon design to shoot, or only in consequence of a particular personal encounter. Beg. v. Liwh, 3 F. & F. 483." On an indictment of A. and B. for murder, it appeared that both followed the deceased out at night, and that A., who was the first to overtake him, threw him down a steep bank into a wet ditch, and then tried to rob him, and not being able, owing to his resistance, called to B,, who Digitized by Microsoft® 33 CRIMINAL LAW— Decrees of Criminality. 84 then was on the top of the bank, to come and help, which he did, and they both forcibly committed the robbery. It did not appear that there was any serious injuiy, except that caused by the fall, and the deceased died three weeks afterwards of pneumonia, or inflammation of the lungs, which might either be caused by cold or violence : — Held, that though there was evidence against both for murder, there was not sufficient to con- vict, unless the jury was satisfied that there was a joint design to commit the violence, nor to convict either, unless satisfied that it caused the death, neg. v. Zee, 4 F. & F. 63. Where two persous go out with the common object of robbing a third person, and one of them, in pursuit of that common object, does an act which causes the death of that third person, under such circumstauces as to be murder in him who does the act, it is murder iu the other also. Jleg. V. Jachson, 7 Cox, C. C. 357. On an indictment for wounding, with intent to do some grievous bodily harm, it appeared that two persons, one of whom was the prisoner, attacked and wounded the prosecutor and robbed him ; it was not proved which of the persons inflicted the wound : — Held, that if the prisoner inflicted the wound on the prosecutor, with intent to rob him, he having at the same time an intent to do him some grievous bodily harm to efEectuate such his intention of robbing, he ought to be con- victed on this indictment. Heg. v. Boioen, Car. & M. 149. Held, also, that even if the prisoner's was not the hand that inflicted the wound, he ought to l5e Convicted, if the jury was satisfied that the two persons were engaged in the common purpose of robbing the prosecutor, and that the other person's was the hand which inflicted the wound. IK If A. is charged with the offence of inflicting an injury dangerous to life, with intent to mur- dei', and B. is charged with aiding and abetting him, it is essential, to make out the charge as against B., that B. should have been aware of A.'s intention to commit murder. Reg. v. Cruse, 8 C. & P. 541. Persons present, aiding and abetting, are prin- cipals in the second degree, and are within the Riot Act. Rex v. Royae, 4 Burr. 2073. Cannot be Treated as Beceiver.] — A principal in the second degree cannot at the same time be treated as a receiver. Reg. v. Perldns, 2 Den. C. C. 459 ; 5 Cox, C. C. 554 ; 21 L. J., M. C. 152 ; 16 Jur. 481. In Misdemeanors.] — By 24 & 25 Vict. c. 94, s. •8, wliosoever shall aid, alet, counsel, or procure tile commUsion of any misdemeanor, lolwther the same be a misdemeanor at common law or by virtue of any act passed or to be passed, shall l>e liable to be tried, indicted, and punished as a principal offender, (^Former provision, 7 & 8 Geo. 4, c. 30, s. 26.) In misdemeanors aU guilty participators are principals. Reg. v. Greenwood, 2 Den. C. C. 453 ; 5 Cox, C. C. 521 ; 21 L. J., M. C. 127 ; 16 Jur. 390. Two men fought with each other in a ring, formed by ropes supported by posts, in the pre- sence of a large crowd. Amongst that crowd were the prisoners. It did not appear that the prisoners took any active part in the manage- ment of the fight, or that they said or did any- thing. They were tried and convicted of assault, as being principals in the second degree. The- jury wore directed that prize-fights are illegal, and that all persons who go to a prize-fight to_ see the combatants strike each other and who are present when they do so, are guilty in law of an assault, and that if the pereons charged were not casually passing by, but stayed at the place, they encS'uraged the fight by their presence, although they did not do or say anything. Upon this direction the jury found the prisoners guilty ; but added, that they did so in consequence of such direction of law, as they found that the pri- soners did not aid or abet ;— Held, by Denman, J., Huddleston, B., Manisty, Hawkins, Lopes, Stephen, Cave, and North, J J. (Lord Coleridge, C. J., Pollock, B., and Mathew, J., dissenting), that the above direction was not correct, that mere voluntary presence at a fight does not as a matter of law necessarily render persons so pre- sent guilty of an assault as aiding and abetting in such fight, and that the conviction could not be sustained. Reg. v. Coney, 8 Q. B. D. 534 ; 15 Cox, C. C. 46 ; 5l' L. J., M. C. 66 ; 46 L. T. 307 ; 30 W. K. 678 ; 46 J. P. 404. Held, by Lord Coleridge, C. J., Pollock, B., and Mathew, J., that the conviction could be sustained, that the legal inference to be drawn from mere presence, as a voluntary spectator, at a prize-fight is, in the absence of other evidence to rebut such inference, that the person so pre- sent is encouraging, aiding, and abetting such fight, and consequently guilty of assault. Tb. Semble, that mere presence of a person, unex- plained, at a prize-fight afiords some evidence for the consideration of a jury of an aiding or abetting in such fight. lb. Persons who are present at a prize-fight and who have gone thither with the purpose of see- ing the persons strike each other, are all prin- cipals in the breach of the peace, and indictable for an assault, as well as the actual combatants, and it is not at all material which of the com- batants struck the first blow. Rex v. Perkins, 4 C. & P. 537. A woman was delivered of a child, which died shortly after its birth ; she concurred with her paramour in endeavouring to conceal the birth, and he, in consequence of her persuasion, she remaining in bed, took the body and buried it in a field, intending thereby to conceal the birth : — Held, that he could be convicted of counselling, aiding, and abetting her in the offence. Reg. x. Bird, 2 C. & K. 817 ; S. P., Reg. v. Skelton, 3 C. & K. 119. B. was summoned before justices for aiding and abetting S. to obtain money by false pre- tences, and both were committed for trial, S. on the charge of attempting to obtain money by false pretences, and B. on the charge of aiding and abetting S. to commit that offence. B. was found guilty and S. acquitted : — Held, that B. was rightly convicted, as' in misdemeanors all are principals. Reg. v. Burton, 32 L. T. 539. When several persons are found out together by night for the common purpose of housebreak- ing, and one only is iu possession of the house- breaking implements, all may be found gdilty of the misdemeanor of being found by night in possession of implements of housebreaking, with- out lawful excuse, under 24 & 25 Vict. c. 96, s. 58; for the possession of one is in such case the pos- session of all. Reg. v. Thompson, 11 Cox, G. 0. 362 ; 21 L. T. 897. Digitized by Microsoft® ^5 CRIMINAL hAW— Degrees of Ciiminality. 36 The prisoner and J. were indicted for a mis- demeanor in uttering counterfeit coin. The uttering was effected by J. in the absence of the prisoner, but the jury found that they were both engaged on the evening on which the utter- ing took place, in the common purpose of utter- ing counterfeit shillings, and that in pursuance of that common purpose J. uttered the coin in question : — Held, that the prisoner was rightly convicted as a principal, there being no acces- sories in a misdemeanor. lieg. v. Greenwood, 2 Den. C. C. 453 ; 5 Cox, C. C. 521 ; 21 L. J., M. C. 127 ; 16 Jur. 390. On an indictment for obtaining money under false pretences, a party who has concurred and assisted in the fraud may be convicted as prin- cipal, though not present at the time of inakmg the pretence and obtaining the money. Iteg. v. Moland, 2 M. C. C. 276. An indictment against H. and W. charged H. with rape, and W. with aiding and abetting the rape. They were found not guilty, but the jury found H. guilty of attempting to commit the rape charged, and W. of aiding and abetting H. in the attempt : — Held, that H. was rightly' con- victed of a misdemeanor. Reg. v. IIapgood\ 1 L. K., C. 0. 221 ; 39 L. J., M. C. 82 ; 21 L. T. 678 ; 18 W. R. 356. If A. counsels and encourages B. to set fire to a malthouse, and B. attempts to set it on fire, both may be jointly indicted as principals for the misdemeanor of attempting to set the malt- house on fire, although A. was not present at the time of the attempt. K. 128. Reg. V. Clayton, 1 C. & 2. ACCKSSOEIES. Before the Fact.]— By 24 & 25 Vict. c. 94, s. 1, whosoever sluill become an aecessory 'before the Jiact to any felony, whether the same be a felony at common law or by virtue of any act passed or to he passed, may be indicted, tried, coiwicted aiul punished in all respects as if he were a jpriTwipal felon. (^Former provision, H & 12 Vict. c. 46, s. 1.) By s. 2, whosoever shall counsel, procure or eommand any other person to commit any felony, loJtetlicr the same be a felony at com>iio?i law or by virtue of ar^y act passed or to be passed, shall be guilty of felony, and may be indicted and ■convicted cither ^as an accessory before the fact to the principal felony, together with the prin- cipal felon, or after the conviction of the prin- cipal felon, or may be indicted and convicted of .a substantive felony ivhether the principal felon ■shall or sImU not have been previously convicted, or shall or shall not be amenable to justice, and may tlicreupon be jiunislwd in the same manner as any accessory before the fact to the same felony, if comi-ieted as an accessory, may be jmv/ished. (Former provision, 7 Geo. 4, c. 64, s. 9.) A., a married woman, in the lifetime of her husband, married B., a widower : — Held, that if B. knew at the time of his marriage with A. that she was a married woman, he might be convicted of the felony of counselling A', to commit bigamy. Beg: v. Brawn, 1 C. & K. 144 ; 1 Cox, C. C. 33. A servant pretended to concur with two per- sons who proposed to him to unite with him in robbing his master's house. The servant acting under instructions fi-om the police let one of them into the house, who was immediately placed in confinement. After this the servant fetched the other prisoner and let him into the house in the same way. This person was seized with a basket of plate in his hand : — Held, that the former pri- soner might be indicted as an accessory before the fact to the stealing. Beg. v. Jones, Car. & M. 218. No Felony Committed.] — A person can- not be indicted under the 24 & 25 Vict. c. 94, s. 2, for counselling another to commit a felony, unless a felony is actually committed by such other person. Reg. v. Gregory, 1 L. B., C. C. 77 ; 36 L. J., M. C. 60 ; 16 L. T. 388 ; 15 W. R. 774 ; 10 Cox, C. C. 459. A soliciting and inciting a person to comiliit an offence where no other act is done except the soliciting and inciting, is a misdemeanor only. lb. To incite a servant to rob his master is a mis- demeanor at common law, and it is no defence that the servant purposely submitted himself to the incitement with intent to betray the master. Reg. v. Quails, 4 F. & F. 1076. In what Cases.] — A person is not to be convicted of larceny if doubtful whether an accessoiy before or after the fact. Rei/. v. Mun- day, 2 F. & F. 170. A servant let a person into his master's house on a Saturday afternoon, and concealed him there all night in order that he might rob the house ; and on the Sunday morning left the premises in pursuance of the previous arrangement. The man, in the sei'vant's absence, broke into the bed- room of the master, and stole the contents of the cash-box : — Held, that the man who took the property from the cash-box was rightly charged as a thief, and the servant who let him into, the house as an accessory before the fact. Beg. v. Tuohwell, Car. t M. 215. If a wife, by the incitement of her husband, knowingly uttered in his absence a forged order and certificate for the reception of prize-money, under 43 Geo. 3, c. 123, they might be indicted together, she as a principal on the statute, and he as an accessoiy, before the fact, at common law. Ben V. Morris, 2 Leach, C. C. 1096. Persons privy to the uttering of a forged note by previous concert with the utterer, but who were not present at the time of uttering, or so near as to be able to afEord any aid or assistance, are not principals, but accessories before the fact. Rex V. Soares, R. & R. C. C. 25 ; 2 East, P. C. 974. The deceased woman became pregnant by the prisoner, and died from the effects of corrosive sublimate taken by her for the pui'pose of pro- ducing abortion. The prisoner knowingly pro- cured it for the deceased, at her instigation, and under the influence of threats of self-destruction, if the means of producing abortion were not supplied to her. The jury negatived the fact of his having administered it, or caused it to be taken by her :— Held, that he was not guilty of murder as an accessory before the fact. Reg. v. Fretwell, 9 Cox, C. C. 153 ; L. & C. 161 ; 31 L. J M. 0. 145 ; 8 Jur., N. S. 466 ; 6 L. T. 383 ; 10 W. R. 545. But sec 24 & 25 Vict. c. 100, ss. 58, 59. ' M. had the charge of the prosecutor s ware- house, in which bags were kept ; S. for some years had been in the habit of supplying the prosecutor with bags, which were Usually placed outside the warehouse, and shortly after so leaving them Digitized by Microsoft® 37 CRIMINAL IjAW— Degrees of Criminality. 38 eitber S. or his wife called and received payment for them. M. went into his master's warehouse, and clandestinely removed twenty-four bags which had been marked by his master, and placed them outside the warehouse, in the place where S. used to deposit the bags, before payment for them. Soon afterwards the wife of S. came and claimed payment for these bags. The pro- secutor then sent for S., who, upon being asked respecting the twenty-four bags, said they had been placed there an hour previously by him, Sad demanded payment for them. The jury found that the bags had been so removed in pur- suance of a previous arrangement between the prisoners : — Held, that S. was an accessory before the fact to the larceny. Reg. v. Manning, Dears. C. C. 21 ; 5 Cox, C. C. 86 ; 22 L. J., M. C. 21 ; 17 Jur. 28. A man and woman were jointly indicted for feloniously administering to C. a noxious thing to the jui'ors unkno-ivn, with intent to procure miscarriage. C. being in the family way, went to the male prisoner, who said he would give her some stuff to put her right, and gave her a light- coloured medicine, and told her to take doses of it till she became in pain. She did so, and it made her ill. She then went to him again, and he said the safest course would be to get her a place to go to. He told her that he had found a place for her at L., and gave her some more of the stuff, which he said would take effect when she got there. They went together to L. and met the female prisoner, who said she had been down to the station several times the day before to meet them. C. then began to feel pain, and told the female prisoner of it, whereupon the male prisoner told the latter what he had given C. They all went home to the female piisoner's, and the male prisoner then gave C. another bottle of similar stuff in the female prisoner's presence, and told her to take it like the other. She did so, and became very ill, and next day had a miscarriage, the female prisoner attending on her : — Held, that there was evidence of the female being an accessory before the fact, and a party, therefore, to the administration of the noxious thing. Reg. v. Hollis, 28 L. T. 455. If a person knowingly invites another to a certain place, in order that he may be murdered, and he is murdered accordingly, that would con- stitute such person an accessory before the fact to the murder. Reg. v. Manning, 2 C. & K. 903. It is not essential that there should have been any direct communication between an accessory before the fact and the principal felon. It is enough if the accessory directs an intermediate agent to procure another to commit a felony ; and it will be sufficient even if the accessory doe's not name the person to be procured, but merely directs the agent to employ some person. Rem V, Coo])er, 5 C. & P. 535. The prisoner had procured certain drugs and gave them to his wife, with intent that she should take them in order to procure abortion. She took them in his absence and died fi'om their effects. On an indictment against him for man- slaughter, it was objected that he was only an accessory before the fact, and that in law there cannot be an accessory before the fact to man- slaughter : — Held, that he was properly found guilty of manslaughter. Reg. v. Gaylor, 7 Cox^ C. C. 253 ; Deai-s. & B. C. C. 288. Two men, having quaiTcUed, agreed to fight with their fists, and to bind themselves to fight ; each put down 11., so that 21. might be paid to the winner. The prisoner consented to hold the 21. and pay it over to the winner. Otherwise he had nothing to do with the fight, and he was not present at it. There was no reason to suppose that the life of either man would be endangered. The men fought, and one of them received injuries of which he afterwards died. The prisoner having been informed who was the winner, but not knowing of the other man's danger, paid over the 21. to the winner : — Held, that the prisoner was not an accessory before the fact to the manslaughter of the man killed. Rea. V. Taylor, 2 L. E., C. C. 147 ; 44 L. J., M. C. 67 ; 32 L. T. 409 ; 23 W. R. 616. Effect of 24 & 25 Vict. c. 94, s. 2.]— The 2nd section of 24 & 25 Vict. c. 94, only applies where the accessory might at common law have been indicted with or after the conviction of the principal. A person therefore cannot be tried for inciting another to commit suicide, although that other commits suicide. Reg. v. RiisscU, 1 M. C. C. 356 ; S. P., Reg. v. Leddington, 9 C. & P. 79. After the Fact.]— By 24 & 25 Tict. c. 94, s. 3, whosoever shall become an accessory after the fact to any felony, whether the same be a felony at common law or by rirtne of any act passed or to be glassed, may be indicted and convicted either as an accessory after the fact to the prin- cipal felony, togetlier with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substan- tive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in lihe manner as any accessory after the fact to the same felony, rf convicted as an accessory, may be punished. (Former provision, 11 & 12 Vict. c. 46; s. 2.) By s. 4, every accessory after the fact to any felony {eoecept where it is otherwise specially enacted), whether the same be a felony at common law or by virtue of any act passed or to be passed, shall be liable, at the discretion of the court, to be imprisoned in the common gaol or house of correction for any term not exceeding two years, with or without hard labour, and it shall be lawful for the court, if it shall thinh fit, to re- quire the offender to enter into his mv?t recogni- zances and to find sureties, both or either, for hecping the peace, in addition to such punish- ment ; provided that no person shall be impri- soned wider this clause, for not finding sureties, for any period cvcccding one year. In what Cases.] — H. & S. broke open a ware- house, and stole thereout thirteen firkins of butter, which they carried along the street thirty yards ; they then fetched the prisoner, who was apprised of the robbery, and he assisted in carry- ing away the property ; he was indicted for theft : — Held, that he was only an accessory, and not a principal. Rex v. King, R. & E. C. C. 332. Where three pei-sons agreed to utter a forged note, and one uttered it at Gosport, and the other two, by previous concert, waited at Portsmouth, they were held to be accessories. Rex v. Scares, 2 East, P. C. 974 ; E. & E. C. C. 25. Several persons were tried upon one indict- ment, some as principals in murder, others as Digitized by Microsoft® 39 CRIMINAL LAW — Degrees of Criminality. accessories after the fact. The principals were convicted of manslaughter :— Held, that those charged as accessories might rightly be convicted as accessories to manslaughter. Men. v. Bieliards, 2 Q. B. D, 311 ; 46 L. J., M. C. 200 ; 36 L. T. 377: A. & B. were in partnership, and B., in fraud of the partnership disposed of - the goods of the firm to the prisoner, who knowingly received the same. Semble, that the prisoner might have been indicted and convicted as an accessory to or after the fact to the felony, either at common law or under 24 & 25 Vict. e. 94, ss. 1, 3. Req. y. Smith, 1 L. R., C. 0. 266 ; 39 L. J., M. C. 112 ; 18 W. E. 932. A. was indicted for the wilful murder of B., and 0. was indicted for receiving, harbouring, and assisting A., well knowing that he had committed the felony and mui-der aforesaid : — Held, that if the ofEence of A. was reduced to manslaughter, C. might, notwithstanding, be found guilty, as accessory after the fact.. Hex V. Greenacre, 8 C. & P. 35. ■ Where a person is charged as accessory aiter the fact to a murder, the question for the jury is, whether such person, knowing the ofEence had been committed, was either assisting the mur- derer to conceal the death, or in any way enabling him to evade the pursuit of justice. lb. To substantiate the charge of harbouring a felon, it must be shewn that the party charged did some act to assist the felon personally. B^g. V. Chappie, 9 C. & P. 355. Upon an indictment against a party as an accessory after the fact in robbery, proof of the prisoner's knowledge of the felony, together with proof of his aiding the principal in disposing of the fruits of the robbery, is sufficient evidence of comforting and assisting, to support the indict- ment. Reg. V. Butterfield, 1 Cox, C. C. 39. A prisoner who employed another person to harbour the principal felons may be convicted as accessoiy after the fact, though he himself did no act of relieving, and the prisoner may be iound guilty on the uncorroborated testimony of the person who actually harboured. Rex v. Jarvis, 2 M. & Rob. 40. A., a lad who was a clerk in a banking-house, robbed his employers ; after doing so, he went to the lodgings of B., who was much older than himself, and who had relations in America. A. stayed twenty minutes at B.'s lodgings ; and after that, on the same night, A. and B. started together by the coach, and went from Reading to Liverpool, intending to embark for America : — Held, that B. might be convicted as an acces- sory after the fact, in harbouring, receiving, and maintaining A., the principal felon. Rex v. Lee, 6 C. & P. 536. . Although a statute which creates a new felony -will attach to that felony all the common-law incidents to felony, so that accessories thereto will be included, yet it will go no further. Rex V. Sadi, 1 Leach, C. C. 468 ; 2 East, P. C. 748. A person is not to be convicted of larceny if it be doubtful whether he is an accessory before or after the fact, Reg. v. Mwnday, 2 F. & F. 170,' 3. Peacticb kblating thehbto. Grand Jury — Different Findings.] — If a charge against an accessory is, that the principal felony was committed by persons unknown, it is no Digitized by Microsoft® 40 objection that the same grand juiy has found a bill imputing the principal felony to J. S. Resc V. Rush, R. & E. 0, C, 372. Trial.] — Where a principal and an accessoiy are indicted together, they will not be allowed to sever in their challenges so as to be tried separately. Reg. v. Fisher, 3 Cox, C. C. 68. An accessory after the fact indicted in the ordinary way with the principal felon, may, since 11 & 12 Vict. c. 46, s. 2, be tried before the principal. Reg. v. Hansell, 3 Cox, C. C. 597. The act of aiding and assisting being a felony by 4 Geo. 4, c. 64, s. 43, the defendant might be indicted before the principal had been tried ; and the prosecution need not be instituted within one year after the ofEence committed, as required by 16 Geo. 2, c. 31, s. 4. Reg. v. HoUoway, 15 Jur. 825 ; & .C.,nom. Holloway v. Reg. Qin error"), 2 Den., C. C. 287 ; 17 Q. B. 319. If two are indicted for jointly making a cor- rupt contract with a third person for the pro- curing- an East India cadetship, one may be convicted, though the other is acquitted. Rex v. Taggart, 1 C. & P. 201. Indictment — Form of.] — In indicting a person for felony, since 11 & 12 Vict. c. 46, it is im- material whether he is a principal in the first or the second degree, or an accessory before the fact, as in either case he is indictable as a prin- cipal. Reg. V. ManniTig, 2 C. & K. 903. An accessory after the fact to a felony cannot be convicted upon an indictment charging the commission of the felony only ; he should be ini- dieted as an accessory after the fact. Reg. v. Fallon, 9 Cox, C. C. 242 ; L. & C. 217 ; 32 L. J., M. C. 66 ; 8 Jur., N. S. 1217 : 7 L. T. 471 ; 11 W. R. 74. An indictment in two counts charged A. and B. jointly with stealing. A third count charged A. alone with receiving the stolen goods. At the trial no evidence was ofiered against B., and he was acquitted, in order that he might be called as a witness against A. A. was an accessory before the fact to the stealing by B., and he afterwards received the stolen goods. The jury returned a verdict of guilty against A., which was entered upon all the counts : — Held, that he was not entitled to an acquittal upon the first two counts by reason of the principal, B., having been acquitted, the 11 & 12 Vict. c. 46, s. 1, having made the crime of being an accessory before the fact a substantive felony. Reg. v. Hwqlies, Bell, C. C. 242 ; 8 Cox, C. C. 278 ; 29 L. 'j., M. C. 71 ; 6 Jur., N. S. 177 ; 1 L. T. 450 ; 8 W. E. 195. Held, also, that there was no inconsistency in the verdict foimd by the jury, and entered upon all the counts, and therefore the conviction could be supported. 76. Three persons were charged with a larceny, and two others as accessories in separately receiving portions of the stolen goods. The indictment also contained two other counts, one of them charging each of the receivers separately with a substantive felony, in separately receiving a portion of the stolen goods. The principals were acquitted :— Held, that the receivers might _ be convicted on the two last counts of the indict- ment. Reg. V. Pulham, 9 C. & P. 280. Inciting a servant to steal any silk that may be in the seiTant's care, without further defining the particular silk to be stolen, is sufficiently 41 CEIMINAL IjAW— Degrees of Criminality. 42 certain to support a conviction. Miy. v. Quail, 4 F. & F. 1076. If two persons are indicted for murder, the one as a principal in the fii-st degree, and the other as being present, aiding and assisting to commit it, the jury may find the principal in the first degree not guilty, and convict the principal fo the -second degree. Hex v. Taylor, 1 Leach, C. C. 360 ; S. a, nom Shatu's case, 1 East, P. C. 351. An indictment stated that a certain evil-dis- posed person stole certain goods ; that L. C. incited him to do so ; that E. C. did the same ; that E. M. received a portion of the property, knowing it to have been stolen ; it also charged A. and the before-mentioned E. C. as receivers. All these persons having been found guilty, the conviction was held good against all except L. C, who was merely charged as accessory before the fact, and judgment was given as to the charges of receiving only. Beg. v. Caspar, 9 C. & P. 289 ; 2 M. 0. C. 101. A count charged A. with the murder of B., and also C. and D. with being present, aiding and abetting A. in the commission of the murder. A. was an insane pereon : — Held, therefore, that C. and D. could not be convicted on this count. Meg. V. Tyler, 8 C. & P. 6i6. Joinder of Counts.] — A count charging a, person with being accessory before the fact, may be joined with a count charging him with being accessory after the fact to the same felony, and the prosecutor cannot be required to elect upon which he will proceed, as the party may be found guilty upon both. liex v. Blaeltson, 8 C. & P. 43. Evidence.] — A person indicted as an accessoiy before the fact cannot be convicted of that charge upon evidence proving him to have been present, aiding and abetting. Sex v. Gordon, 1 Leach, C. C. 515 ; 1 East, P. C. 352. An indictment against an accessory to a felony, committed by a person unltnown, cannot be sup- ported, if it appears that the principal felon acknowledged his guilt before the gi'and jury. Bex V. Walker, 3 Camp. 264. An accessoiy may controvert the guilt of the principal, notwithstanding the record of his con- viction. Bex V. Smitli, 1 Leach, C. C. 288. An averment of the conviction of the principal is supported by the production of the record, however erroneous the judgment may be. Bex V. Baldwin, 3 Camp. 265. On an indictment against an accessory, a con- f ession by the principal is not admissible in evi- dence to prove the guilt of the principal. Bex V. Turner, 1 M. C. 0. 347. It must be proved aliunde, especially if the principal is alive. Ifi. Sufficiency of.] — Proof that a man occa- sionally visited coiners ; that the rattling of money was occasionally heard with them ; that he was seen counting something, as if it was money, when he left them ; that on coming to their lodgings just after the apprehension he endeavoured to escape, and was found to have bad money aliout him ; is not sufficient evidence to implicate him as counselling, procuring, aiding, and abettingthe coiners. Mex v. Isaacs, 1 Euss. C. & M. 63. A statement by a prisoner that A. had pro- posed to him to murder B. on the following night, and that he (the prisoner) agieed to go^ but did not do so, is not of itself evidence that the prisoner was accessory before the fact to the murder of B. by A. on that night. Beg, v. Tal- fourd, 6 Cox, C. C. 383. Evidence that A. was privy to a plot to murder B. by explosive machines, is sufficient to go to the jury on counts charging A. with the murder of C. (accidentally killed by the explo- sion) — ^with conspiring to murder him, and as an accessory to, the fact. Beg. v. Bernard, 1 F. & F. 240. B. OFFENCES. I. ABDUCTION OF WOMEN AND CHILDKEN. 1. What is. 2. Indietment, 46. 3. Ecidence, 46. 1. What is. OfWomen — From Motives of lucre.] — By 24 & 25 Vict. c. 100, s. 53, where any looman of amy age sJiall liare any interest, whether legal or equdtaMe, present or future, absolute, condi,- tional or contingent, in any real or personal estate, or shall be a presumptive heiress or co- heiress, or presumptive next of hin, or one of tile presii/nxptivc next of hin, to any one having such interest, whosoever shall, from, motives of lucre, tahe away or detain such woman against lier will, u'ith intent to mamj or carnally hnow Iter, or to cause her to be married or carnally hnow-n by any other person, etc. On an indictment for abduction on 9 Geo. 4, c. 31, s. 19, the jury ought not to convict the prisoner, unless satisfied that he committed the offence from motives of lucre ; but evidence of expressions used by him respecting the property of the lady, such as his stating that he had seen the will of one of her relatives (naming him), and that she would have 2201. a year, are im- portant for the consideration of the jury, in coming to a conclusion whether he was actuated by motives of lucre or not. Beg. v. Barratt, 9 C. & P. 387. Of Girls — Unmarried Girl under Sixteen^] — By 24 & 25 Vict. c. 100, s. 55, whosoever shall unlawfully taJie or cause to be tahen any un- married girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any otlier person having the lawful care or charge of her, shall be guilty of a misdemeanor, and, beiny convicted thereof, shall be liable, at the discretion of the court, to be imprisoned for any term not exceed- ing two years, with or without hard labour, (iSim,ilar to 9 Geo. 4, c. 31, s. 20.) - — Taking out of Possession— What is.] It is not necessary to shew a trespass,- or any- thing of that nature, in the taking, other than the act of taking. Beg. v. Fraxer, 8 Cox, C. C. 446. A., a girl imder sixteen, who was in service, was, as she was returning fi-om an errand, asked by B. if she would go to London, as B.'s mother wanted a servant, and would give her' 5f. wages. A. and B. went away together to Bilston, where both were found, and B. apprehended ; — Held, that this was not such a taking, or causing to be taken, of A. as was sufficient to constitute the Digitized by Microsoft® 43 CRIMINAL LAW— Abduction of Women and Children. ■oSence of'abduction under 9 Geo. 4, c. 31, s. 20. Beg. y. Meadows, \ C. & K. 399 : Dears. C. C. 161, n. A girl undeJ sixteen having by persuasion been induced by the prisoner to leave her father's house, and go away with him without the consent of the father, left her home alone by a preconcerted arrangement between them, and went to a place appointed, where she was met by the prisoner, and then they went away to- gether some distance, without the intention of returning : — Held, first, that there was a taking of the girl out of the father's possession, within 9 Geo. 4, p. 31, s. 20, by the prisoner when he met ,the girl, and went away with her at the appointed place, as up to that moment she had not absolutely renounced her father's protection. Reg. V. MemJtletoia or 3/anJitelow, Dears. C. C. 159 ; 6 Cox, C. C.l-t3 ; 22 L. J., M. C. 115 : 17 Jur. 352. Held, secondly, such taking need not be by force, actual or constructive, and it is immaterial whether the girl consents or not. lb. The case of JReg. v. lleadows (jwpra) ex- plained, li. A. went in the night to the house of B., and ])laced a ladder against a window, and held it for J., the daughter of B., to descend, which she did, and then eloped with A. J. was a girl under sixteen, viz. fifteen years old : — Held, that this was a taking of J. out of the possession of her father within 9 Geo. 4. c. 31, s. 20, although J. had herself proposed to A. to bring the ladder, and'to elope with him. Reg. v. Roldns, 1 C. & K. 456. A girl, under sixteen, who was living in her father's house, was induced by the prisoner to go to a chapel and to be married to him. She was only away from her home for an hour or two, and after her return continued to live with her father as before, he being ignorant of what had taken place. The niarriage was never consum- mated : — Held, that there was sufficient evidence of her having been taken out of her father's pos- session to satisfy 9 Geo. 4, o. 31, s. 20. Beg. v. jBaillie, 8 Cox, C. C. 238. In order to constitute an offence within 9 Geo. 4, c. 31, s. 20, it is sufficient, IE, by moral force, a willingness on the part of the girl to go away with the prisoner is created ; but if her going away with him is entirely voluntary, no offence is committed. Beg. \. Handley, 1 F. & F. 648. It was no answer to an indictment under 9 Geo. 4, c. 31, s. 20, for taking away a girl under the age of sixteen yeara, to shew that the girl alleged to be abducted went voluntarily from her home in consequence of the persuasion of the pri- soner, to a place at some distance, where she met the prisoner, and whence she went away with him without any reluctance. Beg. v. Kipps, 4 Cox, C. 0. 167. On an indictment for taking an unmarried girl under the age of sixteen from the possession of her father : — Held, that the statute was satisfied, though the man and the girl quitted the house together in consequence of a proposition which emanated from the girl herself to that effect, and a statement by her to the man that she intended to leave her father's house. ■ Beg. v. Biawell, 2 Cox, C. C. 279. / A. was indicted under 24 & 25 Vict. c. 100, ». 53, for fraudulently alluring C. out of the posses- sion of her mother and stepfather, the latter Digitized by 44 having the lawful care of her ; and B. with being an accessory before the fact. C. was sent by her mother to live with her grandmother. ■ Instead of going theifi, she went to B.'s house, and did not return homo when desired to do so by her mother. After remaining with B. a mouth, she left with A., her paternal uncle, and was married to him without her mother's Ivnow- ledge : — Held, upon objection that there was no evidence that the alluring wag fraudulent, or that the girl was taken out of her mother's pos- session, that the facts did not support the indict- ment. Meg. V. Burrell, L. & C. 354 ; 9 Cox, C. C. 368 ; 33 L. J., M. C. 54 ; 9 L. T. 426 ; 12 W. B. 149. When a servant girl, under sixteen years of age, had permission from her master to go and see her parents from Sunday to Monday night, and went to see them on the Sunday for a few liours only, and then told them (by previous arrangement with the' prisoner) that she was going back to> her employment, instead of which she remained with him all night, and did not retui'n to her master's employment until some days afterwards : — Held, that the facts would not warrant a convic- tion for abduction under 24 & 25 Vict. c. 100, s. 55. Beg. v. 3IilUr, 13 Cox, C. C. 179. If a man, by previous promises to a girl under sixteen as to what he will do if she will leave her parents' house and go to live with him, induces her at length to do so, and then rec'eives and har- bours- her secretly, he is liable to be convicted for taking her out of the possession of her parents, even although he does not meet her by any pre- vious arrangement and is not otherwise actually a party to her act in leaving. Beg. v. BoM, 4- F. & F. 59. - raking not Intended to be Permanent.] A. was convicted for taking an unmari-ied girl, under sixteen, out of the possession of her father, and against his will. It was proved that A. (who had previously stayed out with the girl for a night), having met her by arrangement, stayed with her away from her father's house for three days, sleeping with her at night ; that he took her away without her father's consent, and against his will, in order to gratify his passions, and then allow her to return home, and not with a view of keeping her away from her home per- manently : — Held, that the evidence justified the conviction. Beg. v. Timmins, Bell, C. C. 276 ; 8 Cox, C. C. 401 ; 30 L. J., M. C. 45 ; 6- Jur., N. S. 1309 ; 3 L. T. 337 ; 9 W. K. 36. Disapproval Of Act of Girl.] — A man is. not bound to return to her father's custody a girl who, without any inducement on his part, has left her home, and has come to him ; but if, at any time, he has attempted to induce her to leave home without her ' parents' consent, and she afterwards does so, he is guilty of the abduction of the girl, even though he disapproves of the act at the particular time at which she gives effect to his previous persuasions. Beg. v. Olifier, 10 Cox, C. C. 402. Improper Motive — Question for Jury.] — "Where a person was indicted for the abduc- tion of a girl under sixteen, and it did not appear that he had any improper motive, the jury was directed that if they thought he merely wished to have the child to live with him, and honestly believed that he had a right to Microsoft® 45 CEIMINAL LAW — Abduction of Women and, Children. the custody of the child, although he had no such right, they ought to acquit him. Beg. v. Tinlder, I F. & F. 513. See Reg. v. Booth, infra. - When a girl, under sixteen, has been found in the streets by herself and seduced away, that is not a taking out of the possession of the father, even though he is living in the place and she lives with him. Beg. v. Green, 3 F. & F. 274. The prisoner met a girl under sixteen years of age in a street, and induced her to go with him to a place at some distance, where he seduced her, and detained her for some houi-s. He then took her back to the street where he had met her, and she returned home to her father's : — ^Held, in the ab- sence of any evidence that the prisoner knew or had reason for knowing, or that he believed that the girl was under the care of her father at the time, that a conviction under 24 & 25 Vict. c. 100, s. 55, could not be sustained. Beg. v. Hiblert, 1 L. B., C. C. 184 ; 38 L. J., M. C. 61 ; 19 L. T. 799 ; 17 W. E. 384 ; 11 Cox, C. C. 246. Prisoner's Knowledge as to Age of Girl.] — To support an indictment for the abduction of an immarried girl undef sixteen, it is not neces- sary to prove that the person -who abducted her knew her to be under sixteen, as the person who does so is bound to ascertain her age, and if she turns out to be under sixteen, he must take the consequences. Beg. v, Myeoch, 12 Cox, C. C. 28. One who takes an unmarried girl under the age of sixteen out of the possession and against the will of her father or mother, is guilty of an offence under 24 & 25 Vict. c. 100, s. 55, although he may not have had any bad motive in taking her away, nor means of ascertaining her age, and although she was willing to go. Beg. v. Booth, 12 Cox, 0. C. 321. A man was convicted under 24 & 25 Vict. c. 100, s. 55, of unlawfully taking an unmarried girl, under the age of sixteen, out of the possession and against the will of her father. It was proved that he did take the girl, and that she was under sixteen ; but that he bon§, fide believed and had reasonable ground for believing that she was over sixteen : — Held, that the latter fact afforded no defence, and that he was rightly convicted. Beg. V. Prince, 2 L. K., C. C. 154 ; 44 L. J., M. C. 122 ; 32 L. T. 700 ; 24 W. K. 76 ; 13 Cox, C. C. 138. A man dealing with an unmarried girl does so at his peril ; and if she turns out to be under sixteen, is liable to be indicted for unlawfully taking her away. Beq. v, Olifier, 10 Cox, C. C. 402 ■ It is no defence that the prisoner did not know that an unmarried girl was under sixteen, or that, from her appearance, he might have thought she was a greater age. Beg. v. Bobins, 1 C. & K. 456. Taking against Will of Parents — Fraud.] — ^Semble, that where a man by false and fraudu- lent representations induced the parents of a girl between ten and eleven years of age to allow him to take her away, such taking away of the girl was an abduction within 9 Geo. 4, c. 31, s. 20. Beg. y. HopMns, Car. & M. 254. On an indictment for unlawfully taking away a girl against the will of her parents, if they have encouraged her in a lax course of life, the case does not come within 9 Geo. 4, c. 31, s. 90, as it 1 46 cannot be said to be against their will. Reg. v. Prbiwlt, 1 F. & F. 50. Who has lawful Charge of Girl.] — A servant under sixteen years of age had permission from her master to go and see her parents from Sunday to Monday night, and went to sec them on Sunday for a few hours only ; she then told them (by previous arrangement with the prisoner) that she was going back to her employment, but instead of doing so, she remained with the pri- soner all night and did not return to her master until some days afterwards : — Held, that the girl was under the lawful charge of her master, and not of her father at the time of tlie alleged offence. Beg. v. Miller, 13 Cox, C. C. 179. A girl who is aVay from her home, is still in the custody or possession of her father, if she intends to return to her home. Reg. v, Myeoelt, 12 Cox, C. C. 28. 2. Indictment. Averment as to Possession. ]^A. was indicted under 24 & 25 Vict. c. 100, s. 53, for fraudulently alluring C. out of the possession of her mother and -stepfather, the latter having the lavrful care of her : — Held, that the averments that the girl was in the possession and under the care of her stepfather might be rejected as surplusage. Beg. V. Bnrrell, fl Cox, C. C. 368 ; L. & C. 354 ; 33 L. J., M. C. 54 ; 9 L. T. 426 ; 12 W. K. 149. 8. Evidence. Wife a Competent Witness.] — The wife is a witness as well for as against her husband, al- though she has cohabited with him from the day of the marriage. Bex v. Perry, 1 Euss. C. & M. 949 ; 1 East, P. C. 454. Where several defendants were indicted for a misdemeanor in conspiring to carry away a young lady, under the age of sixteen, from the custody appointed by her father, and to cause her to marry one of the defendants ; and, in another, for conspiring to take her away by force, being an heiress, and to marry her to one of the defendants : — Held, that, assuming the young lady to be at the time the lawful wife of one of the defendants, she was a competent wit- ness for the prosecution, although there was no evidence to support that part of the indictment which charged force. Mete v. WalteHeld, 2 Lewin, C. C. 279. What Admissible.] — A prisoner was taken into custody at the house of his brother on a charge of abduction ; when he was taken, a letter was found in a writing-desk in the room in which he and his brother were. The letter was directed to a person in the neighbourhood of the prisoner's late residence. The police-officer was going to open it, when the prisoner told him it had nothing to do with the business that he had come about : — Held, that the letter was receivable in evidence on the trial of the prisoner for the ab- duction. Beg. V. Barratt, 9 C. & P. 387. What must be Proved.]— On a prosecution on 3 Hen. 7, c. 2, it was essential that there should be a continuance of the force into the county where the deiilemeut took place. Rex v Gor~ don, 1 Euss. C. & M. 943. Digitized by Microsoft® 47 CHIMIN AL LAW — Arson and Burning. 48 II. ABORTION, PROCUREMENT OF. Sue post, MuKDER and Offences agad THE PEBSON. II [. ADULTERATION OF FOOD AND DRINK. See Health— Fisher's "Digest." IV. ARSON AND BURNING. 1. Generally. 2. Dwelling -houses with Persons therein, 48. 3. Houses or Buildings, 48. 4. Goods, Sfc, in Buildings, 51. 5. By Cfimpowdev and Explosive Sub- stanees, 52. 6. Crops, ^Voods, or Staejis, 53. 7. Indictment, 55. ^ 8. JEcidence, 58. i. Generally. -Statute.] — 24 & 25 Viot. c. 97 consolidates and ame^iAs the statute law in relation to this offence. Who may Commit.] — One put by overseers of the poor into a house to live there is merely a servant, and his possession is theirs, and there- fore he may commit arson" by burning it. Re.v V. Gowan, 2 East, P. C. 1027 ; 1 Leach, C. C. 246. One entitled to dower only out of a house, vrhich was leased to another, may commit arson by burning it. Eex v. Harris, 2 East, P. C. 1023. The Offence.] — Burning a man's own house contiguous to others is a misdemeanor at common law. Hex V. Probert, 2 East, P. C. 1080 ; S. P., Bex V. Isaac, 2 East, P. C. 1031. A sailor on board ship entered the spirit room and stole rum, and, while doing so, a lighted match held in his hand came into contact with the inflammable liquor, whence a conflagration ensued which destroyed the ship : — Held, that he was not rightly convicted of arson. Beg. v. Faulkner, 11 Ir. R., C. L. 8 ; 13 Cox, C. C. 550. The feloniously burning a dwelling-house is arson at common law ; but the burning of an out-house is a statutable felony. Bex v. Nash, 2 East, P. C. 1021, What is a Burning.] — ^A small faggot was set on iire on the boarded floor of a room, and the faggot was nearly consumed ; the boards of the floor were scorched black, but not burnt, and no part of the wood of the floor was consumed : — Held, not a sufficient burning to support an indictment for arson. Beg. v. Bussell, Car. & JVT. 541. If a person sets fire to a stack, the fire from which is likely to and does communicate to a bam, which is thereby burnt, the person is in- dictable for burning the barn. Bex v. Cooper, 5 C. & P. 535. To constitute a setting on fire it is not necessary that any flame should be visible. Bex v. Stallion, 1 M. C. C. 398. It was proved that the floor near the hearth was scorched. It was charred in a trifling way. It had been at a red heat, but not in a blaze : — Held, that this would be a sufficient burning to support an indictment for arson. Beq. v. Parker, 9 C. & P. 45. Setting fire to paper only in a drying loft be- longing to a paper-mill, no part of which was burnt, was not setting fire to an out-house, within 9 Geo. 1, c. 22. Bex v. Taylor, 1 Leach, C. C. 49 ; 2 Bast, P. C. 1820. 2. Dwelling-houses with Persons therein. Statute.]— By 24 & 25 Vict. c. 97, s. 2,wJwso- ever shall imlawfuUy and 'maliciously set fire to any dwelling-house, any person being thei'ein, slmll be guilty of felony, and, being convicted thereof, sliall be liable, at the discretion of the court, to be hei)t in penal servitude for life, or for any term not less than fine years (27 & 28 Vict. c. 47) ; or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under sixteen, with or without whipping. (^Previous enactment, 7 Will. 4 & 1 Vict. c. 89, s. 3, and was a capital offence by s. 2.) Person being therein.] — A. was indicted on this statute for the capital ofEence of setting fire to B.'s dwelling-house, B. being therein. A. had set fire to an out-house under the same roof as the dwelling-house, and the fire communicated to the dwelling-house and burnt it. At the time that A. set fire to the out-house, B. was in the dwelling-house, but had left it before the fire reached the dwelling-house : — Held, that the capital charge could not be sustained, as B. was not in the house at the time it was on fire. Beg. v. Fletclier, 2 C. & K. 215. Dwelling-house.] — The house set fire to must be a dwelling-house, and a common gaol occupied by none but prisoners is not a dwelling-house for this purpose. Beg. v. Connor, 2 Cox, G. C. 65. Finding Guilty on another Section.] — On an indictment on 7 Will. 4 & 1 Viot. c. 89, s. 2, for the capital offence of setting fire to a dwelling- house, some person being therein (the indict- ment not charging any intent to injure or defraud any person), the prisoner could be convicted of the transportable ofience of setting fire to the house, under s. 3 ; as an allegation of an intent to injure or defraud some person was essential to an indictment under that section. Reg. v. Paice, 1 C. & K. 73 ; S. P., Beg. v. Fletcher, 2 C. & K. 215. 3. Houses or Buildings. Statute.]— By 24 & 25 Vict. c. 97, s. 3, whoso- ever shall unlawfully and maliciously set fire to any house, stable, coach-house, out-house, ware- house, office, shop, mill, malthouse, hop-oast, barn, storehouse, granary, hovel, .^hed, or fold, or to any farm building, or to any building or erectimhused in farming land, or in carrying on any trade or manufacture, or any branch tlicreof, whether the same shall thenbe in the possession of the offender or in the possession of any otlier person, imth in- tent thereby to injure or defraud any person, shall he guilty of felony, and, being convict ed thereof, sliMl be liable, at the discretion of the couo't, to be Itept in penal servitude for life, ot fur any term not less than five years (27 & 28 Viot. c. 47) ; or to be imprisoned for any term not ex- Digitized by Microsoft® 49 CRIMINAL LAW— ^rsott and Burning. 50 ceeding two years, with or witlwut liard labour, and, with or without solitary confinement, and, if a male vmder the age of sixteen years, ■with or nyitlumt whip2}ing. {Former provisions, 7 Will. 4 & 1 Yict. c. 89, s. 3. and 7 & 8 Vict, c. 62, s. 1.) Section i applies to railway stations and build- ings, and s. 5 to public buildings. By 24 ' & 25 Vict. c. 97, s. 6, lolwsoever shall unlawfully and maliciously set jire to any huild- ing other than such as art in this act before mentioned shall be guilty of felony, and, being convicted tliereof, sluill be liable, at tlie discretion oftlie court, to be ke2)t in penal servitude for any term not exceeding fourteen years, and not less t/tan fire years (27 & 28 Viet. c. 47) ; or to be imprisonedfor any term not exceeding two years, witJi or without hard labour, and, if a male under sixteen, with or without whipinng. Honse, What is.] — An unfurnished structure intended to be used as a house, is not a house within the meaning of the 24 & 2.5 Vict. c. 97, s. 13. Bsg. V. Edgell, 11 Cox, C. C. 132. A building erected not for habitation, but for workmen to take their meals, and dry their clothes in, which has four walls, a roof, a door, but no window, but in which a person slept with the knowledge, but without the permission, of the owner, was not a house, the setting fire to which was felony, within 7 Will. 4 & 1 Vict. c. 89, s. 3. Beg. V. England, 1 C. & K. 533. A building which never had been inhabited, but was constructed as and intended for a dwel- ling-house, though only containing straw, boards and implements of husbandry, was not a house within 9 Geo. 4, c. 22, s. 7. Elsmore v. St. Briavels, 2 M. & R. 514 ; 8 B. & C. 461. A common gaol was a house within 9 Geo. 1, c. 22. Rex V. JDonnevan, 2 W. Bl. 682 ; 1 Leach, C. C. 69 ; 2 East, P. C. 1021. But see now Reg. V. Connor, 2 Cox, C. C. 65, supra. Stable — What is. ] — Burning a stable is not supported by proof of burning a shed, which has been built for and used as a stable originally, but has latterly been used as a lumber shed only. Reg. T. Colley, 2 M. & Bob. 475. A. was charged with setting fire to a stable : it was proved that some haulm had been carted from a field and stacked in a building originally intended for a stable, but it was afterwards divided into three parts by a wall, which reached only to the eaves. "One part was used as a stable, but that part was not the part fired : — Held, that the building was improperly described as a stable. Reg. V. 3Iu)ison, 2 Cox, C. C. 186. The prosecutor had built a place for an oven to bake bricks, but it was afterwards roofed and a door put to it. In this a cow was kept ; ad- joining to it but not under the same roof was a lean-to in which a horse was kept : — Held, that the building was not a stable and that if a person set fire to it (the lean-to not being burnt), he was not indictable for arson to a stable. Rex v. Jiaughton, 5 0. & P. 555. Out-house — What is.] — A. was indicted for set- ting fire to an out-house. The building set on fire was a thatched pigsty, situate in a yard in the possession of the prosecutor, into which yard the back door of his house opened, and which yard was bounded by fences and by other buildings of the prosecutor, and by a cottage and barn, which were let by him to a tenant, but which did not open into this yard :— Held, that the pigsty was an out-house within 7 Will. 4 &1 Vict. c. 89, s. 3. Reg. V. Jones or Janes, 1 C. & K. 303 ; 2 M. 0. C. 308. A building separated from the house by a pas- sage, used as a school-room, but within the curtilage, was an out-house within 9 Geo. 1, o. 22, H. 1, although not of the ordinary description of outhouses. Rex- v. Winter, B. & K. C. C. 295. A cart hovel, consisting of a stubble roof sup- ported by uprights, in a field at a distance from other buildings, was not an out-house vrithin 7 & 8 Geo. 4, c. 30, s. 2. Ra^ v. Parrott, 6 C. & P. 402. A building had been built for an oven to bake bricks, but afterwards was roofed and a door put to it. In this place the prosecutor kept a cow ; neither the prosecutor, nor the person of whom he rented this building, had any house or farm- yard near it, nor did any wall connect it with any dwelling-house ; the nearest dwelling being one hundred yards off, and not belonging to either the prosecutor or his landlord : — Held,.that the building was not an out-house, and that, if a person set it on fire he was not indictable for arson. Rea- v. Haughton, 5 C. & P. 555. An open building in a field at a distance from and out of sight of the owner's house, though boarded round and covered in, was not an out- house within 7 & 8 Geo. 4, c. 30, s. 2. Rex v. Ellison, 1 M. C. C. 336. An open shed in a farm-yard, composed of up- right posts supporting pieces of wood laid across them, and covered with straw as a roof, was an out-house, within 7 & 8 Geo. 4, c. 30, s. 2. Rex V. Stallion, 1 M. C. C. 398. A building which had never been inhabited, but which was constructed as and intended for a dwelling-house, although it only contained straw, boards, and agricultural implements, was not an out-house within 9 Geo. 4, c. 22, s. 7. Elsmore V. St. Briavels, 2 M. & B. 514 ; 8 B. & C. 461. A. was indicted for arson of an out-house ; it was proved that some haulm had been carted from a field and stacked in a building originally intended for a stable but which was afterwards divided into three parts by a wall. The fire was kindled in a part containing the haulm and a quantity of tiles of the prosecutor, who was a builder : — Held, that the building was impro- perly described as an out-house. Req. v. Munson, 2 Cox, C. C. 186. Barn— What is.] — A building which never had been inhabited, but which was constructed as and intended for a dwelling-house, but which contained straw, boards, and implements of husbandry, was not a barn within 9 Geo. 4, c. 22, s. 7. Elsmore v. St. Briavels, 2 M. & E 514-8 B. & C. 461. ' Shed — Building for carrying on Trade.] A was indicted for having set fire to a, building twenty-four feet square, the sides of which were composed of wood, with glass windows ; it was roofed, and was used by a gentleman, who built houses on his own property for the purpose of disposing of them, as a storehouse for seasoned timber, as a place of deposit for tools, and as a place where timber was prepared for use :— Held that this was a shed, and also an erection used m carrying on trade. Reg. v. Amos, T. & M Digitized by Microsoft® 51 CRIMINAL LAW — Arson and Burning. 52 423 ; 2 Den. C. C. 55 ; 5 Cox, C. C. 222 ; 20 L. J., M. C. 103 ; 15 Jur. 90. A first count charged the firing of a certain building used by 0. for carrying on his trade as a builder ; and other counts laid the arson as of ii stable, an out-house, and a stack of haulm. It ■vvas proved that some haulm had been carted from a field and stacked in a building originally intended for a stable, but afterwards divided into three parts by a wall, which reached only to the eaves. One part was used as a stable, and the part fired contained the haulm and a lot of tiles of the prosecutor, who was a builder. The fire had been kindled on the haulm : — Held, that the building was improperly described as a shed. Reg. v. Munson, 2 Cox, C. C. 186. Held, further, that it was a building used by the prosecutor in carrying on his trade. lb. Building — ^What is.] — ^An unfinished house, brick built, of which all the walls external and internal were built and finished, the roof on and finished, the flooring of a considerable part laid, and the internal walls and ceilings prepared for plastering, is a building within 24 & 25 Vict. c. 97, s. 6, the setting fire to which is a felony. Beg. V. Manning, 1 L. K., C. C. 338 ; 41 L. J., M. C. 11 ; 25 L. T. 573 ; 20 W. K. 102 ; 12 Cox, C. C. 106. 4. Goods, &c., in BaiLDiNos. Statute.] — By 24 & 25 Vict. c. 97, s. 7, wliosa- ever shall unlawfully and mdlicionsly set fire to any matter or thing, being in, against, or und,er any building, under snrli circumstances tliat if tJte building were thereby set fire to, tits o fence would amount to felony, shall be guilty of felony, and, being convicted tliereof, shall be liable at the discretion of the court, to be kept in penal servi- tude for any term not exceeding fourteen aiid not less than five years (27 & 28 Vict. c. 47); or to be imprisoned for any term not exceeding two years, loith or without hard labour, and, if a male under sixteen, ivith or without whipping. (^For- mer provisions, 7 & 8 Vict. c. 62, s. 2, and 14 & 15 Vict. c. 19, s. 8.) The Offence.] — A person who maliciously set fire to his own goods in his own house with intent, by burning the goods, to defraud an insurance company, but did not set fire to the house, might be convicted of felony under an indictment framed upon 14 & 15 Vict. c. 19, s. 8, and 7 Will. 4 & 1 Vict. c. 89, s. 3. Reg. v. Lyons, Bell, C. C. 38 ; 8 Cox, C. C. 84 ; 28 L. J., M. C. 33 ; 5 Jur., N. S. 23 ; 32 L. T., 0. S. 150 ; 7 "W. K. 58. No Intention to hum House.] — Wilfully throwing a light into a post-office letter-box in a house with the intention of burning the letters, but not the house, is not a felony within 24 & 25 Vict. c. 97, ss. 7, 8. Reg. v. Batstone, 10 Cox, C. C. 20: A person maliciously set fire to goods in a house, with intent to injure the owner of the goods, but he had no malicious intention to burn the house or to injure the owner of it. The house did not take fire : — Held, that if the house had thereby caught fire, the setting fire to it would not have been within 24 & 25 Vict. c. 97, s. 7, as under the circumstances it would not have amounted to felony. Reg. v. Child, 1 L. R., 0. C. 307 ; 40 L. J., M. C. 127 ; 24 L. T. 556 ; 19 W. E. 726 ; 12 Cox, C. C. 64. , • , The prisoner was indicted under 24 & 25 Vict. ^ c. 97, s. 7, for wilfully and malieio)isly setting fire to a picture frame in a building under such ' circumstances as if the building were thereby set fire to, would amount to a felony. The jury found that the prisoner did not set fii'e to the house apart from the frame, that he did set fire to the frame, that the probable result would be setting fire to the floor of the house, that he did not intend to set fire to the house, that he was not aware that what he did would probably set the house on fire, and so injure the owner, and that he was not reckless or indifferent whether the house was set on fire or not. Upon these findings a verdict of not guilty was directed by the judge. Reg. v. Harris, 15 Cox, C. C. 75. A servant girl entered on her service on the 2nd day of January, and on the 18th received notice'to leave at the end of one month. On the 15th a sheet was discovered burning on a chair in front of, but four feet from, the kitchen fire. The girl was in the kitchen, and either could not or would not give any account of the occurrence. Later on in the same day the prisoner's apron was on fire, although it was hanging on the kitchen wall, ten feet away from the fire. At five p.m. on the same day there was a third fire, and at seven p.m. the bed and bedding in the nursery were on fire, the girl being there at the time. No part of the house was actually burnt : — Held, that upon the above facts the girl could not be indicted for the felony under 24 & 25 Vict. c. 97, s. 7, for setting fire to things in a building tinder such circumstances that if the building were thereby set fire to would amount to felony. Reg. V. Nattrass, 15 Cox, C. C. 73. If a person maliciously, with intent .to injure another by merely burning his goods, sets fire to such goods in his house, that does not amount to a felony under 24 & 25 Vict. c. 97, s. 7, even although the house catches fire, unless the cir- cumstances are such as to shew that the person setting fire to the goods knew that by so doing he would probably cause the house also to take fire, and was reckless whether it did so or not ; in which case there would be abundant evidence that he intended to bring about the probable consequence of his act, viz., the burning of the house. lb. 5. By Gunpowder and Explosive Substances. Damaging House — Persons being therein.] — By 24 & 25 Vict. c. 97, s. 9, whosoexer shall un- lawfully and maliciously, by the ciplosiou of gunpowder or other explosive substance, destroy, throw down, or damage the whole or any part of any dwelling-house, any person being therein, or of any building whereby the life of any person shall be endangered, shall be guilty of felony, and, being convicted thereof, shall be liable, iit the discretion of the court, to be hept in penal servitude for life, or for any term not less thlaci\ and whether or not any damage be caused, be guilty of felony, and, being convicted thereof, sliall be liable, at the dis- cretion ofth-e court, to be liejyt in penal servitude for any term not exceeding fourteen, and not less than five years (27 & 28 Vict. c. 47) ; or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or loitliout solitary confinement, and, if a male under sixteen, with or without whipping. (Pre- vious provision, 9 & 10 Vict. c. 25, s. 6.) Gunpowder — In what Condition.] — In order to support an indictment under 24 & 25 Vict. c. 97, s. 10, for throwing gunpowder against a house vsdth intent to damage, it is not enough to shew simply that gunpowder or other explo- sive substance was thrown against the house ; but it must also be shewn that the substance was in a condition to explode at the time it was thrown, although no actual explosion should result. Jtcg. v. Sheppard, 11 Cox, C. C. .?02 : 19 L. T. 19. 6. Cbops, Woods, oe Stacks. Crops and Woods,]— By 24 & 25 Vict. o. 97, s. 16, whosoever shall unlawfully and maliciously set fire to aTi/ij crop of hay, grass, corn, grain, or pulse, or of any cultivated vegetable produce, whetlwr standing or out down, or to any part of any wood, cop2>ire, or plantation of trees, or to any heath, gorse, furze, or fern, wheresoever the same may be growing, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be hept tn penal servitude for any term not exceeding fourteen years and not less thanfiA-e years (27 & 28 Vict, c. 47) ; or to be imprisoned for any term, not exceeding two years, with or without liard, labour, and with or without solitary confinement, and, if a male under sixteen, with or without whipping. (Previous provision, 7 & 8 Geo. 4, c. 30, s. 17.) A. and B. were charged with setting fire to a wood. They set fire to a summer-house which was in the wood, and from the summer-house the fire was coinmuni(®ted to the wood : — Held, that they might be convicted on this indictment. Reg. V. Price, 9 C. & P. 729. Stacks.]- By 24 & 25 Vict. c. 97, s. 17, who- soever shall unlawfully and maliciously set fire to any stach of corn, grainjpulse, tares, liay, straw, haulm, stubble, or of any cultivated vegetable produce, or of furze, gorse, he-ath, fern, turf, peat, coals, charcoal, wood, or barh, or to any steer of wood or barh, shall be guilty of felony, and, being convicted thereof, sliall be liable at the discretion of the court, to be Itept in penal servitude for life, or for any term not less tlian fire years (27 & 28 Vict. c. 47) ; or to be impri- soned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under sixteen, with or without whipping. QPrernms enact- ment, 7 Will. 4 & 1 Vict. c. 89, s. 10.) What are.] — A. and B. were convicted for unlawfully and maliciously setting fire to a stack of grain. The stack was of the flax plant, with the seed or grain in it, and the jury found that the flax seed is a grain : — Held, that the stack was a stack of grain within 7 Will. 4 & 1 Vict. c. 89, s. 10. Reg. v. Spevirer, Dears. & B.. C. 0. 131 ; 7 Cox, C. C. 189 ; 26 L. J., M. C. 16 ; 2 Jur., N. S. 1212. An indictmenff or setting fire to a cock of hay cannot be sustained under a statute making it- an offence to set fire to a stack of hay. Reg. v. ifKeever, 5 Ir. K., C. L. 86. A quantity of straw, packed on a lorry, in course of transmission to market, and left for the night in the yard of an inn, is not a stack of straw within the meaning of 24 & 25 Viet. c. 97, s. 17, and the setting fire thereto wilfully and maliciously is not felony. Reg. v. Satchwell, 2" L. E., C. C. 21 ; 42 L. J., M. C. 63 ; 28 L. T. 569 : 21 W. R. 642. A stack, of which the lower part consisted of: cole-seed straw, and the upper part of wheat stubble, was not a stack of straw ; and the- setting it on fire was not therefore a capital offence within 7 & 8 Geo. 4, c. 29, s. 17. Rex v Tottenliani, 7 C. & P. 237. Setting fire to a score of faggots which were- piled one upon another in a loft, which was- made by means of a temporary floor put over an archway roofed in between two houses, aiid' under which carts could go, was not setting fire- to a stack of wood within 7 & 8 Geo. 4, c 80 s. 17. Rex V. Aris, 6 C. & P. 348, ' A count charged an attempt to set fire to a stack of haulm. It was proved that some haulm had been carted froni a field, and stacked in a building, originally intended for a stable, but Digitized by Microsoft® 55 CRIMINAL LAW — Arson and Burning. 56 aitei-wards divided into three parts by a, wall, which reached only to the eaves ; one part was used as a stable, and the part fired contained the haulm and a lot of tiles :— Held, that the count was sufficient, inasmuch as it' is not necessaiy to the character of a stack that it should be erected out of dooi-s. Meff. v. Munson, 2 Cox, C. C. 186. Setting fire to a parcel of unthreshed wheat was not a felony within 9 Geo. 1, c. 22. Eex v. Judd, 2 T. E. 255 ; 1 Leach, C. C. 484 ; 2 East,' P.O. 1018. Straw — What is.] — Sedge and rushes were not straw within 7 Will. 4 & 1 Vict. c. 89, which was confined to the straw of wheat, oats, barley and rye. Beg. v. Saldoclt, 2 Cox, C. C. 55. The p-isoners had set fire to a stack of stubble (which, in Cambridgeshire, is called haulm) ; they were indicted on a firet indictment for setting fire to a stack of straw : — Held, that this was not straw. And, on their being again in- dicted for setting fire to a stack of straw called haulm, the judge intimated that to convict upon such a count would not be safe ; and the verdict, in consequence, was taken upon other counts, charging the setting fire to a barn and a wheat stack. Rex v. Header, i C. P. 245 ; 1 M. C. C. 239. Attempt to Set on Fire.]— By 24 & 25 Vict. c. 97, s. 18, whosoever sluiU unlawfully aiid ma- liciously, by any oveH act, attempt to set fire to any such matter or thing as in either of the last two preceding sections mentioned (supra), under such circumstatices tJiat if tlte same ivo-e thereby set fire to, the offender would be, under either of siieh scrtiuns, guilty of felony, shall be guilty of felony, and, being convicted tJwreof, shall be liable, at the discretion of the court, to be Ihept in penal serritude for any term not creeeding seven and not less than five years (27 & 28 Vict. c. 47) ; or to be imprisoned for any term not ex- ceeding two years, witli or without ha/rd labour, and with or without solitary confinement, and, if a male under sixteen, with or tvit/tout whip- (^Former statute, 9 & 10 Vict. c. 25, s. 7.) Overt Act.] — It was a sufficient overt act to render a person liable to be found guilty of attemptipg to set fire to a stack, under 9 & 10 Vict. c. 25, s. 7, if he went to the stack with the intention of setting fire to it and lighted a lucif er match for that purpose, but abandoned the attempt because he found that he was being watched. Reg. v. Taylor, 1 F. & F. 511. 7. Indictment. Who Indictable.] — A wife was not indictable under 7 & 8 Geo. 4, e. 30, s. 2, for setting fire to her husband's house with intent to injure him ; as it is essential that there should be an intent to injure or defraud some third person, and not one identified with herself. Rex v. March, 1 M. C. C. 182. Owner of House.] — It must appear upon the face of an indictment for arson that the house was that of another ; and it must state whose house, and with that the proof should agree. Rex V. Ricliman, 2 Bast, P. C. 1034. And see Bex V. Glandfield, 2 East, P. C. 1034. A house, in part of which a man lives, and other parts of which he lets to lodgers, may be described, in an indictment for setting fire to it, ■ as his house, though he has taken the ^enfefij of the Insolvent DebtoM Act, and ex'eduted an assignment including the house, if the assignee has not taken possession ; at least, no objection can be made, if in other counts it is state^ as tlie house of the assignee, and in others of the lodger whose room was set fire to. Bex v. Ball, 1 M. G. C. 30. A common gaol was kept in repair by rates levied upon the inhabitants of the liberty in and for which the gaol was.. The keeper of the gaol was appointed by the justices of the liberty. He did not reside at the gaol, but kept the keys and had the charge of it. He was also an inhabitant, and liable to bo rated to the repair of the gaol : — Held, that in an indictment under 7 & 8 Vict, c. 62, s. 1, for setting fire to the gaol, it should have been laid to be in the possession of the keeper of the gaol. Reg. v. Connor, 2 Cox, C. C. 65. Averment of Property.] — Two were indicted, under 24 & 25 Vict. c. 97, s. 3, for feloniously setting fire to a shop " of and belonging to " one of them : — Held, that the avenuent of property was an immaterial averment which need not be proved. Beg. v. Xewboult, 1 L. K., C. C. 344 ; 41 L. J., M. C. 63 ; 25 L. T. 883 ; 20 W. E. 343 : 12 Cox, C. C. 148. Thereby Burnt.] — It was not necessary to aver in an indictment on 9 Geo. 1, c. 22, for setting fire to a hay-stack, that the stack " was thereby burnt." Bex v. Salmon, E. & E. C. C. 26. Absence of Malice no Answer.] — In an indict- ment on 9 Geo. 1, c. 22, for setting fli'e to a hay- stack, it was no answer to the charge that the prisoner had no malice or spite to the owner of the stack. lb. Place where Offence Committed.] — On an in- dictment for setting fire to a stack of beans, a mistake as to the name of the place where the offence was committed is immaterial ; the charge is transitory, not local. Rex v. Woodward, 1 M. C. C. 323. Intent to Injure or Defraud.] — By 24 & 2.') Vict. c. 97, s. 60, it shall be sufficient in any indictment for any offence against the act, where it shall be necessary to allege an intent to injure or defraud, to allege that the party accxised did the act with intent to in/jure or defraud, as the case may be, without alleging an intent to injure or defraud any particular person, and on the trial of any such offence it sliall not be necessary to pro-ce an intent to injure or defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with an intent to injure or deframd, as the ease may he. A prisoner was convicted on an indictment for setting fire with intent to injure A. B. The pro- perty fired belonged to A. B. The jury found the intent to injure C. D. : — Conviction hold good. Rex V. Newell, 1 M. C. C. 458. So an indictment under 7 & 8 Geo. 4, c. 30, s. 17, for setting fire to a stack of straw, was good, without stating any intent to injure. lb. An indictment for setting fii'e to a barge, the property of another, ought to contain an aver- ment that it was done with an intent to injure Digitized by Microsoft® 57 CRIMINAL IjAW— Arson and Burning. 58 the owner. Beic v. Smith, 4 C. & P. 569. Sed quaere, ^ee Hex v. Newell, 1 M. C. C. 458 ; and 24 & 25 Vict. c. 97, s. 60. ' On an indictment for setting fire to a mill, with intent to injure the occupiers thereof : — Held, that an injui-y to the mill being the 'necessary consequence of setting fire to it, the intent to injure might be inferred ; for a man must be supposed to intend the necessary conse- quence of his own act. Hex v. Farrington, E. & R. C. C. 207. It is not necessary in a count in an indict- ment laid under 24 & 25 Vict. c. 97, s. 7, to allege an intent to defraud, and it is sufiicient to follow the words of the section without sub- stantively setting out the particular circum- stances relied on as constituting the offence. Beg. T. JSesseltine, 12 Cox, C. C. 404.^ A common gaol was kept in repair by rates levied upon the inhabitants of the liberty in and for which the gaol was : — Held, in an indictment under 7 & 8 Vict. c. 62, s. 1, for setting fire to the gaol, that the intent of the prisoner should have been laid to be to injure the inhabitants of the liberty. Beg. v. Connor, 2 Cox, C. C. 65. Two persons were' indicted under 24 & 25 Vict. c. 97, s. 3, for feloniously setting fire to a ,shop"of and belonging to "one of them : — Held, that the intent to injure another person as owner might be proved in support of the indictment. Reg. v. Newbonlt, 1 L. E., C. C. 344 ; 41 L. J., M. C. 63 ; 25 L. T. 883 ; 20 W. R. 343 ; 12 Cox, C. C. 148. Upon an indictment for arson, with intent to injure the person in occupation of the premises, the prisoner may be found guilty, although his intent is proved to have been to obtain a reward for giving the earliest intimation of a fire at the engine station. Beg. v. Began, 4 Cox, C. C. 335. What set on Fire.j — An indictment for setting fire to an out-house was good, though it might have in point of 1 aw formed part of the dwelling- house, the burning of which was arson at com- mon law. Bex v. North, 2 East, P. 0. 1021. Upon a statute which made it capital to set fire to a stack of pulse, it was sufficient to state that the prisoner set fire to a stack of beans. The judges will take notice that beans are pulse. B(:x V. Woodward, 1 M. C. C. 323. An indictment on 7 & 8 Geo. 4, c. 30, s. 17, charging a party with setting fire to a stack of b'arley, jf the value of 100?., of R. P. W. was good, although the words of the statute creating the ofllence were " any stack of com or gi'ain." Be.r v. SwatUns, 4 C. & P. 548. Feloniously, &c.]— Held, also, that if the indictment stated " that the prisoner feloniously, unlawfully, and maliciously did set fire to a certain stack of barley, of the value of lOOZ., of E. P. W., then and there being," this is suificient, without stating that the prisoner feloniously! unlawfully, and maliciously did then and there set fire to the stack. IV. An indictment on 7 & 8 Geo. 4, c. 30, ss. 2 & 17, for setting fire to a barn and a stack of straw, charging the offences to have been com- mitted " feloniously, voluntarily, and mali- ciously," instead of ''feloniously, unlawfully, and maliciously," was bad. Rex v. Reader, 4 C. & P. 245 ; 1 M. 0. C. 239. 8. Evidence. Notice to Produce Policy.]— On an indict- ment for arson on the prosecution of an insur- ance company, their books are not evidence ot the insurance, without notice to produce the policy. Be.v v. Doran, 1 Bsp. 127. A prisoner tried at the assizes for areon, on Wednesday, the 20th of March, was on Monday, the 18th, served at the prison with a notice to produce a policy of insurance. The commission day was Friday, the 15th, and the pnsoner s home was ten miles from the assize town :— Held, that the notice was served too late. Bex V. Mlieomie, 5 C. & P. 522 ; 1 M. & Eob. 260. Notice to produce policies of insurance, served on the prisoner's attorney on Tuesday evening, the prisoner then being in Maidstone, and the policies twenty miles off, is sufficient when the trial takes place on Thursday. Beg. v. BarJcer, 1 E. & F. 326. Upon an indictment for arson, with intent to defraud an insurance company, the nature of the proceedings does not give notice to the prisoner to produce the policy, so as to dispense with actual notice to produce it. Meg. v. Jiit- »on, Dears. C. C. 187 ; 22 L. J., M. C. 118 ; 17 Jur. 422. Proof of Actual Ill-will.] — On an indictment for maliciously setting fire to a building, it is not necessary to prove actual ill-will in the prisoner towards the owner. Beg. v. Dacies, 1 F. & F. 69. Experiments. ] — Evidence of experiments made subsequently to the fire is admissible in order to shew the way in which the building was set on fire. Beg. v. Hesseltine, 12 Cox, C. C. 404. What Admissible to shew Uotive and Intent.] — A. was indicted for wilfully setting fire to a rick by firing a gun close to it on the 29th of March : evidence that the rick was also on fire on the 28th of March, and that A. was then close to it, havihg a gun in his hand, is re- ceivable to shew that the fire on the 29th was not accidental. Reg. v. Dossett, 2 C. & K. 306 : 2 Cox, C. C. 243. On an indictment for areon in setting fire to a rick, the property of A., evidence may be given of the prisoner's presence and demeanour at fires of other ricks, the property respectively of B. and C, occurring the same night, although those fires are the subject of other indictments against the prisoner, such evidence being important to explain his movements and general conduct before and after the fire of A.'s rick ; but evi- dence is not admissible of threats, of statements, or of particular acts, pointing alone to other indictments, and not tending to implicate or explain the conduct of the prisoner in reference to that fire. Beg. v. Taylor, 5 Cox, C. C. 136. Under an indictment for areon, where the prisoner is charged with wilfully setting fire to her master's house, the previous and abortive attempts to set fire to different portions of the same premises, are admissible though there is no evidence to connect the prisoner with either of them. Beg. >•. Bailey, 2 Cox, C. C. 311. Upon an indictment for arson it is not com- petent for the prosecutors to shew that other fires, of which notice was given by the prisoner were of a similar nature to the one in question' Digitized by Microsoft® 59 CEIMINAL LAW~Attempls to Commit Offences. and clifEerent from those of which notice was given by other parties. Regi. v. Megan, i Cox, C. C, 335. On an indictment for arson, one count laying an intent to defraud, and it being opened for the prosecution that the motive might have been to realise the money insured by the prisoner upon her goods : evidence was received that she was in easy circumstances, with a view to shew that she was at all events under no pecuniary temp- tation to commit such an act. Meg. v. (jh-ant, 1 P. & F. 322. On a charge of arson (the case turning on identity) evidence was rejected that, a few days previously to the fire, another building of the prosecutor's was found on fire, and the prisoner was seen standing by, with a demeanour which shewed indifierenoe or gratification. Meg. v. Harris, 4 F. & F. 342. Upon a trial for arson with intent to defraud an insurance company, evidence that the prisoner had made claims on two other insurance com- panies in respect of fires which had occurred previously, and in succession, was admitted for the purpose of shewing that the fire which formed the subject of the trial was the result of design and not of accident. Meg. v. Gray, 4 F. & F. 1102. V. ASSAULT AND BATTEET. See MuEDEK and Offences against the Peeson. VI. ATTEMPTS TO COMMIT OFFENCES. Jniy may find Gtiilty of Attempt on Indict- ment for the Offence.]— By 14 & 15 Vict. c. 100, s. 9, whereas offcndeo's often escape cunviction hy reason that siieh persons oyght to have been cliarged with attempting to commit offences, and nut with tlie actual commission thcrcnf, for remedy thereof he it enacted, tliat if, on the trial of any person charged with any fclomj or misdemeanor, it shall appear to the jiunj, U2>on the evidence, that the defendant did not complete the offence charged, Imt that lie was guilty only of an attempt to commit tlw same, such person sitall not by reason thereof be entitled to be acguitted, but the jury shall he at libi'rty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to-Commit the same, and thereupon such person slmll 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 tlie indictment ; and no person so tri-ed as herein lastly mentioned shall be liable to he afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he loas so tried. On an indictment under 24 & 25 Vict. c. 96, s. 57, for feloniously breaking and entering a shop with intent to commit a felony, a prisoner may be found guilty of misdemeanor in attempt- ing to commit that felony. Meg. v. Jiaiit, 9 Cox, C. C. 98. A. was indicted for brealsing and entering a dwelling-house, and stealing certain specified goods. It appeared that, at the time of the breaking and entering, the goods named in the indictment were not in the house, but there were other goods there belonging to the prosecutor. 60 The jury found that he was not guilty of the- felony charged, but that lie was guilty of break- ing and entering the dwelling-house of the prose- cutor, and attempting to steal his goods therein: — Held, that therewasno attempt to commit felony charged within the meaning of the above section, and therefore the verdict could not be sustained. Meg. v. M'Pherson, Dears. & B. C. C. 197 ; 26 L. J., M. C. 134 ; 3 Jur., N. S. 523. Felony would have been SfEected if no In- terruption.] — ^An attempt to commita felony can only be made out where, if no interruption had taken place, the felony itself could have been effected. Meg. v. Collins, L. & C. 471 ; 9 Cox, C. C. 497 ; 33 L. J., M. C. 177 ; 10 Jur., N. S. 686 ; 10 L. T. 581 ; 12 W. K. 886. In order to commit an assault with intent to commit a rape the jury must be satisfied not only that the prisoner intended to gratify his passions on the person of the prosecutrix, but that he intended to do so at all events, and not- withstanding any resistance on her part. Rea: v. Lloyd, 7 C. & P. 318. Misdemeanor.] — The moment a man takes one necessary step towards the completion of a mis- demeanor, he commits a misdemeanor. Meg. v. Chapman, 2 C. & K. 846 ; 1 Den. C. C. 432 ; T. & M. 90 ; 18 L. J., M. C. 152 ; 13 Jur. 885. Every step towards a misdemeanor, by an act done, is punishable as a misdemeanor. lb. Any one act of fraud upon a public officer, with intent to deceive, whereby a matter required by law for the accomplishment of an act of a public nature is illegally obtained, amounts to an indictable misdemeanor ; and it need not be alleged or proved either that the act was in fact accomplished, or that the party, at the time of committing the fraud, intended that it should be. lb. A false oath taken before a surrogate, with in- tent to deceive such surrogate, and to obtain from him a licence for a marriage, is punishable as a misdemeanor, although it is not alleged in the in- dictment, nor proved in evidence, that the mar- riage was in fact celebrated, and although the party found guilty was not the person about to be married. lb. Every attempt (not every intention, but every attempt) to commit a misdemeanor is a misde- meanor. Reg. V. Martin, 9 C. & P. 215 ; IS. P., Meg. V. 3Iartin, 9 C. & P. 213; 2 M. C. C. 123. An attempt to commit a misdemeanor is a misdemeanor, whether the offence was created by statute, or was an offence at common law. Mex V. ModericJi, 7 C. & P. 795 ; Mex v. , B. & K. C. C. 107 ; Mex v. Butler, 6 C. & P. 368. To enter Shop.] — B. was indicted under 24 & 25 Vict. c. 96, s. 57, for having feloniously broken into and entered a shop, with intent to com- mit a felony therein. It was proved that he made a hole in the roof, with intent to enter and steal, but was disturbed. There was no evidence of his having in any way entered the building : — Held, that he was properly convicted of a mis- demeanor of attempting to commit a felony. Mca. V. Main, L. & 0. 129 ; 9 Cox, C. C. 198 ; 31 L. J., M. C. 88 ; 8 Jur., N. S. 418^■; 10 W. R. 236. An attempt to commit a burglary may be es- tablished on proof of a breaking with intent to Digitized by Microsoft® 61 CEIMINAL LAW— Bigamy. 62 .rob the house, although there is no proof of an actual entry. Men. v. Spanner, 12 Cox, C. C. 155. If Offence Committed, Jury cannot find Guilty of Attempt only.] — On an indictment for an assault with intent to commit rape, if penetra- tion is proved, ihe prisoner cannot be convicted of the attempt. JReg. v. MchoUs, 2 Cox, C. C. 182. Attempt to Steal — Nothing to be Stolen.] — If a person puts his hand into the pocket of another, with intent to steal what he can find there, and the pocket is empty, he cannot be convicted of an attempt to steal. Reff. v. Collins, L. & C. 471 ; 9 Cox, C. C. 497 ; 3.S L. J., M. C. 177 ; 10 Jur., N. S. 686 ; 10 L. T. 581 ; 12 W. B. 886. To obtain by False Pretences — When Prose- cutor knows Pretences are False.] — The prisoner wrote a begging letter to the prosecutor, in which, by certain false statements, he attempted to ob- tain money. The prosecutor sent the prisoner five shillings, but stated at the trial that he Itnew the pretences were false : — Held, that he might be convicted of an attempt to obtain money by false pretences. Reg. v. Henslcr, 11 Cox, C. C. 570 ; 22 L. T. 691 ; 19 W. R. 108. C. was in the employ of a contractor for the supply of meat to a camp, and the coui-se of business was for the meat to be sent domi to the camp, there weighed out to the different messes, and the surplus, if any, returned to the contractor. C, whilst employed upon this duty by the contractor, during the weighing out, sub- stituted a false weight for the true one, his in- tention being to carry away and steal the differ- ence between the just surplus, for which he would have to account to his master, and the apparent surplus actually remaining after the first weighing. Nothing remained upon his part to complete his scheme except to cany away and dispose of the meat, which he would have done had the fraud not been detected : — Held, properly convicted of attempting to steal the meat. Meg': v. Clieesenian, 9 Cox, C. C. 100 ; L. & C. 140 ; 31 L. J., M. C. 89 ; 8 Jur., N. S. 143 ; 5 L. T. 717 ; 10 W. B. 255. A., employed in a tannery, clandestinely re- moved certain skins of leather from the ware- house to another part of the tannery, for the pur- pose of delivering them to the foreman and getting paid for them as if they had been his own work : — Held, that this amounted to an attempt to commit the misdemeanor of obtain- ing money by false pretences. Reg. v. Bol- loway, 1 Den. C. C. 370 ; T. & M. 48 ; 3 New Sess. Cas. 410 ; 2 C. & K. 942 ; 18 L. J., M. C. 60 ; 13 Jur. 86. The defendant had contracted with the guar- dians of a poor law union to deliver loaves of a specified weight to any poor persons bringing a ticket from the relieving officer. The tickets were to. be returned by the defendant at the end of the week, with a statement of the number of tickets sent back, whereupon he would be credited with the amount, and the money would be paid at the time stipulated in the contract. The defen- dant delivered to certain poor people who brought tickets loaves of less than the specific weight, returned the tickets with a note of the number sent, and obtained credit in account for the loaves so delivered ; but before the time for payment had arrived the fi'aud was discovered : — JHeld, that the defendant could properly be convicted of attempting to obtain money by talse pretences, for although he had obtained credit in account, yet he had done aU that was de- pending on himself towards the payment o± the money. Reg. v. EagUton, Dears. C. C. ol5 ; 6 Cox, C. C. 559 ; 24 L. J., M. C. 158 ; 1 Jur., N, S 940. A man went to a pawnbroker's shop and laid down eleven thimbles on the counter, saymg, " I want 5«. for them." The pawnbroker's assistant asked the man if they were silver, and he said they were. The assistant tested them, and found them not to be silver ; he gave the man no money but sent for a policeman and gave him in cus- tody :— Held, that the conduct of the man who presented the thimbles amounted to an attempt to commit the offence of obtaining money by false pretences, lleg. v. Ball, Car. & M. 249. Attempts to Mnrder.J— /See Mukdee. Indictment.] — An indictment for an attempt to commit larceny which charges the prisoner with attempting to steal " the goods and chattels of A." without further specifying the goods intended to be stolen, is sufficiently certain. Reg. V. Johnson, L. & C. 489 ; 10 Cox, C. C. 13 ; 34 L. J., M. C. 24. An indictment which merely charges the de- fendant with unlawfully attempting and endeav- ouring, fraudulently, falsely and unlawfully, to obtain from A. a large sum of money with intent to cheat and defraud him, is bad in arrest of judg- ment. Reg. v. Marsh, 3 Cox, C. C. 571 ; 19 L. J., M. C. 12. Evidence — Sufficiency of.] — Prisoners were charged with an attempt to commit a larceny. The evidence was that they, with another boy, were seen by a policeman to sit together on some doorsteps near a crowd, and when a well-dressed person came up to see what was going on, one made a sign to the othei's, and two of them got up and followed the person into the crowd. One of them was seen to lift the tail of a man's coat, as i£ to ascertain if there was anything in the pocket, but ^making no visible attempt to pick the pocket, and to place a hand against a woman's dress, but no actual attempt to insert the hand into the pocket was observed : — Held, not to be evidence of an attempt to steal. Reg. V. Taylor, 25 L. T. 75. VII. BAKKEUPTCY ACT, OFFENCES AGAINST. See Bankruptct — Fisher's "Digest." VIII. BIGAMY. 1. Statute. 2. Validity of Marriages, 63. 3. Marriages Abroad, 66. 4. Absence or Death of Parties, 67. 5. Wlu-re Triable,.70. 6. Indietment, 70. 7. Jindence and Witnesses, 71. 1. Statute. By 24 & 25 Vict. u. 100, s. 57, whosoever, being married, shall marry any other 2Jerson duriiiq the life of the former husband or wife, whether Digitized by Microsoft® 63 CEIMINAL l.AW— Bigamy. tJw second mafrhiije shall Jtai-c tahm vlaco lit Eiigland or Ireland or elsewhere, shall be guilty t'f felony, and, heing comicted thereof, shall he liable, at the discretion of the court, to be liept in penal servitude for any term not exceeding seven years and not less thanjii;e years (27 & 28 Vict. c. 47) ; or to be impi-isoned for any term not exceeding two years, with or without hard labour ; And any stich offence may be dealt with, in- quired of, tried, determined, and punished in any county or place in England or, Ireland where the offender shall be ajtprehended or be in cus- tody, in the same manner in all resjieets as if the offence had been actually committed in' that county or place ; Provided that nothing in this section con- tained shall extend to any second marriage con- tracted elscwliere than in Eiujland and Ireland by any other than a subject of her Majesty, or to any persmi marrying a second time whose hus- band or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been hnown by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from thbody is inside the premises, but he introduces an instrument within it for the mere purpose of effecting an entiy, and not with any other object, semble, that the entry is not com- plete. Reg. V. aSrien, 4 Cox, C. 0. 398. 3. What is Kight-timb. By 24 & 25 Vict. c. 96, s. 1, the wight shall he deemed to eommence at nine of the eloeh in the evening of each day, and to conclude at six of the clocli in the morniwj of the next succeedinij day. QSlinilar to 7 Will. 4 & 1 Vict. o. 86, re- 2>ealcd.^ Breaking and Entry on different Nights.]— The prisoner broke the glass of the prosecutor's side door on the Friday night, with intent to enter the house at a future time, and actually entered on the Sunday :— Held, that this was burglary, although a day had intervened, the breaking and entering being both by night, and the breaking being with intent afterwards to enter. Bex v. Smith, R. & R. C. C. 417. 4. What is a Dwelling-house. Permanent Building slept in occasionally.] — A public building used and slept in only for a short time for the purpose of a fair, may be treated as the dwelling-house of the person so occupying it, though unoccupied the rest of the year. Rex V. Smitli, 1 M. & Rob. 256. Goods in House — No one Sleeping there.]— A house into which the owner has only removed his goods, but has not slept in, is not his' dwell- ing-house as to burglary. Bex v. Thompson, 2 Leach, C. C. 771 ; 2 Bast, P. C. 498. A nocturnal breaking into a house of which the owner has no farther taken possession than by depositing in it sundry articles of merchandize, neither he nor any servant of his having slept in it, is not burglary, for it cannot be considered as the dwelling-house of the owner. Bex v. Harris, 2 Leach, 0. C. 701 ; 2 Bast, P. C. 498. A house under repair, but not inhabited, is not the dwelling-house of the owner, though part of his property is deposited therein. Bex v. Lyons, 1 Leach, C. C. 185 ; 2 Bast, P. C. 497. differently reported ; S. P., Bex v.' Fuller, 1 Leach, C. C. 186, n. Where the owner of a house has never by him- self, or by any of his family or servants, slept in the house, it is not his dwelling-house, so as to make the breaking in and stealing goods thereout burglary, though he has used it for his meals, and all the purposes of his business. Rf^f v. Martin, R. & R. C. C. 108. Servants Sleeping in House.] — Although a man leaves his house, and never means to reside in it again, yet, if he uses part of it as a shop, and lets a servant and his family live and sleep in another part of it, for fear the place should be robbed, and lets the rest to lodgers, the habita- Digitized by Microsoft® 77 CRIMINAL J^AN^— Burglary and Housebreaking. 78 tion by his servant and family is a habitation by him, and the shop will be considered as part of the dwelling-house, so as to constitute the breaking thereof burglary. Hex v. Criibons, R. & K. G. 0. 422. A burglary committed in a baker's shop, in which no person slept, but to which there was a communication by a trap-door and a ladder from the upper rooms of the house, in which only a weekly workman and his family lived by the per- mission of the three partners, who were owners of the whole house, may be laid to have been committed in the dwelling-house of these partners, they inhabiting it by means of their servant. Bex v.-- Stock, 2 Leach, C. C. 1015 ; R. & K. C. C. 185 ; 2 Taunt. 339. Buildings separated from the dwelling-house by a public road will not be a parcel of the dwelling-house, but if such buildings are used as a sleeping place for any of the servants of the dwelling-house, they may be deemed a distinct dwelling-house. Mux v. Westioood, R. & R. C. C. 495. "\yhere the prosecutor left his house without any intention of living in it again, and intending to use it as a warehouse only ; though he had persons (not of his family) to sleep in it, to guard the property : — Held, that it could not be consi- dered as the dwelling-house of the prosecutor, so as to support a conviction for stealing therein. Rex V. Flannagan, R. & K. C. C. 187. The owner of a house puts a person into it to sleep there at nights till he can get a tenant, in order to protect some furniture there, which he had purchased of the last tenant, which servant had so slept there for three weeks before, but the owner never intended to inhabit it himself : — Hold, that a thief could not be convicted of stealing goods in the dwelling-house of such owner to the value of 40«. within 12 Anne, c. 8. iJcr v. Dacis, 2 East, P. C. 499 ; 2 Leach, C. C. 876. Or, if the owner of a house has no intention of residing in it himself, it cannot be considered his dwelling-house, although his servant sleeps in it every night, if his sleeping there be merely to protect the furniture. li. A porter lying in a warehouse does not make it a dwelling-house. Bex v. Smith, 2 Bast, P. C. 497 ; 2 Leach, C. C. 1018, n. And see Be.r v. Brown, 2 Bast, P. C. 501 ; 2 Leach, C. C. 1018, n. Whose Dwelling-House.] — A garret made use of as a workshop, and rented with a sleeping- room by the weels, is the mansion of the lodger, if the landlord does not sleep under the same roof. Rex v. Carrell, 1 Leach, C. C. 287 ; 2 Bast, P. C. 506. Lofts over coach-houses and stables, converted into lodging-rooms, are the dwelling-houses of their inhabitants, if there is an outer door. Rex V. Turner, 1 Leach, C. C. 305 ; 2 East, P. C. ,492. ■ Two adjoining houses belonging to two part- ners, of which the rent and taxes are paid from the joint fund, may still be the respective man- sions of each partner, if there is no communica- tion from one to the other but through the outer doors to the street. Bc-v v. Jmies, 1 Leach, C. C. 537 ; 2 East, P. C. 504. Part of Dwelling-House— What is.]— Se^; 24 & 25 Vict. 0. 76, s. 53 (awte, col. 73), by which matiy of the follmohig cases are affected, but they are retained as they may still serve ti> illKStrate' the subject. If the out-house is adjoining to the dweliing- house, and occupied as parcel thereof, though there is no common inclosure or curtilage, it may still be considered as part of the mansion. Bae V. Brmon, 2 East, P. C. 493. On the trial of an indictment for breaking into a building within the curtilage, under 7 & 8 Geo. 4, c. 29, s. 14, it appeared, that the building was in the fold-yard of the prosecutor's farm ; and that, to get from his dwelling-house to the fold-yard, it was necessary to pass through a yard called the pump-yard, into which the back-door of the dwelling-house opened, the pump-yard being separated from the fold-yard by a wall four; feet high, in which there was a gate, the fold-yard having another gate leading to fields on one side, a hedge, with a gate leading to the high road, on another, the other sides of the fold-yard being bounded by the farm-buildings and a continuing wall from the dwelling-house : — Held, that the building was within the curtilage. Reg. v. Gilbert, 1 C. & K. 84. An out-house in the yard of a dwelling-house will be parcel of the dwelling-house if the yard is inclosed, though the occupier has another dwelling-house opening into the yard, and he lets such dwelling-house with easements in the yard. Bex v. Walters, 1 M. 0. 0. 13. A summer-house used occasionally for tea and retirement, within the same inclosure as the house, though at the distance of about half-a-mile, was a. building within 4 Geo. 2, c. 32. Rex v. Norris, R. & R. C. C. 69. And see Rex v. Parher, 1 Leach, C. C. 320, n. A building within the same fence as the dwell- ing-house, and used with it as parcel of the dwell- ing-house, though it has no internal communica- tion with the house but through an open passage, is parcel of the dwelling-house. Rex v. HaTWoclt, E. & R. C. C. 170. And such a building is equally part of the dwelling-house, though used partly for the sepa- rate business of the occupier of the dwelling- house, and partly for a business in which he was a partner. lb. The prisoner broke into a goose-house opening into the prosecutor's yard, into which his house also opened ; the yard was surrounded partly by other buildings of the homestead, and partly by a wall ; some of the buildings had doors opening backwards, and there was a gate in one part of the wall opening upon a road ; this goose-house was held part of the dwelling-house, so as to constitute the breaking thereof burglary. Bex V. Claybmrn, R. & R. 0. C. 360. Buildings separated from the dwelling-house by a public road, however narrow, will not be a parcel of the dwelling-house, so as to constitute the breaking thereof burglary, if there is no common fence or roof to connect them, although held by the same tenure, and although some of the offices necessaiy to the dwelling-house adjoin thereto, and although there be an awning ex- tending therefrom to the dwelling-house. Bex V. Wcstwiml, R. & R. C. C. 495. An area gate, opening into the area only, is not part of the dwelling-house so as to make the breaking thereof burglai-y, if there is any door or fastening to prevent persons in the area from entering the house, although such door or fasten- ing may not be secured at the time. Bex v Davis, R. & R. C. 0. 322. Digitized by Microsoft® 79 CEIMINAL LAW — Burglary and Housebreaking. A door which only forms part of the outwai-d fence of the curtilage, and opens into no building but into the yard only, is not such a part of the dwelling-house as that the breaking thereof will constitute burglary. Rex v. Semiett, R. & K. C. C. 289. No Internal Communication.] — A shutter- "box partly projected from a house, and adjoined the side of the shop window, which was pro- tected by wooden panelling, lined with iron : — Held, that the breaking and entering the shutter- box did not constitute burglary, liex v. Paine. 7G. &P. 135. The prosecutor's house was at the corner of a street, and adjoining thereto was a workshop, be- yond which a stable and a coach-house adjoined ; all were used with the house, and had doors open- ing into a yard belonging to the house, which yard was surrounded by adjoining building-s, so as to be altogether an inclosed yard ; the work- shop had no internal communication with the house, and it had a door opening into the street ; its roof was higher than that of the dwelling- house ; the street-door of .the workshop was broken open in the night : — Held, the workshop was parcel of the dwelling-house. Rex v. CliaViikg, R. & R. C. C. 33i. W. let part of his house, viz., a shop, passage, cellar, &c., to his son, who did not sleep therein, and there was a distinct entrance into the son's part, but his passage led to his father's cellars, and they were open to his father's part of the house. The shop was broken into, and the prisoner was convicted thereof : — Held, that by reason of the internal communication, the son's part continued part of the father's house, and therefore that it was burglary. Rex v. Sefton. R. & R. C. C. 202. A shop adjoining to a house, if under the same roof, and within the curtilage, is part of the dwelling-house, although there is no internal communication between the shop and the house, and although no person sleeps in the shop. Rex V. GiUoii, 1 Leach, C. C. 357 ; 2 Bast, P. C. 508. A room in a dwelling, occupied therewith and nnder the same roof, will be deemed part of the dwelling-house, though it has a separate outer door, and no internal communication with the rest of the house. Rex v. Burrows, 1 M. C. C. 274. On the trial of an indictment for burglary, it appeared that adjoining to the prosecutor's dwelling-house was a kiln, one end of which was supported by the end wall of the dwelling- house, and that adjoining to the kiln was a dairy, one end of which was supported by the end wall of the kiln. There was no internal communication from the dwelling-house to the dairy, and the roofs of the dwelling-house, iviln, and dairy were of different heights : — Held, that the daily was not part of the dwelling-house, and that a. burglary could not be committed by breaking into it. Reg. v. Higgs, 2 0. & K. 322. A building used with and under the same roof with a dwelling-house, but having no internal communication with it, although opening into an inclosed yard belonging to the house, and also into an adjoining street, may be parcel of the dwelling-house, so as to constitute the break- ing and entering thereof a burglary. Rex v. Utligo, R. &■ R. 0. C. 357. 80 A mauufactoiy carried on in the centre build- ing of a great pile, in the wings of which several persons dwelt, but having no internal com- munication with the same, though the roofs of all were connected, and the entrances of all were out of the same common inolosure ; — Hold, not a dwelling-house in which_ burglary could be committed. Re-f v. Egginton, 2 East, P. 0. 494, 6G6 ; 2 Leach, 0. 0. 913 ; 2 B. & P. 508. 5. Beeaking into Churches and Places OF Divine "Woeship. Statute.]— By 24 & 25 Vict. c. 96, s. 50, lohu- soever sliall hreah and enter any elmrelt,, elwxKl, meeting -house or other jdaee of dieine tobrship, and, commit any felony therein, or being in any ehnrch, chapel, meeting-house or other place of ditine loorship shall commit any felony therein, and hreah out of the same, shall he guilty of felony, and, heing eonvieted thereof, slhall he liahle, at the discretion of the court, to he hept in, penal sercitude for life, or for any term not Irxx tlianfice years (27 & 28 Vict. c. 47), or to he im- pvisonvd for any term not exceeding two yearx. with or without hard lahour, and with or with- out solitary confinement. (^Frevioiis promsion. 7 & 8 Geo. 4, c. 29, s. 10.) By s. 57, whosocrer shall hreah and enter any dwelling-house, church, chapel, meeting-house, or other place of dieine tuorship, or any huildi/tg within the curtilage, scJwol-house, shoj), ware- house or counting-house, with intent to commit any felony tlierein, shall he guilty of felony, and, heing convicted thereof, shall he liahle, at the discretion of tlie court, to he hept in penal ser- vitude for any term not exceeding secen yeiirx and not less than five years (27 & 28 Vict. c. 47), or to he imprisoned for any term not exceeding two years, with or without hard lahour, and with or loithout solitary confinement. Church or Chapel — What is.] — A dissenting meeting-house was not within 7 & 8 Geo. 4, c. 29, s. 10, which made it a capital offence to " break and enter any church or chapel, and steal therein." Rex v. Richardson, 6 C. & P. 335 ; 8. P., Rex v. Warren, B C & P. 335, n. A prisoner was indicted under 7 & 8 Geo. 4, c. 29, s. 10, for breaking and entering a chapel, and stealing several fixtures, and a bell not iixed. The chapel was a Wesleyan chapel, and not a chapel of the Church of England : — Held, that the case must be confined to the act of simple larceny, for stealing the bell. Rex v. Sixon, 7 G. & P. 442. Part of Church.] — If a church tower is built higher than the church, and has a separate roof, but has no outer door, and is only accessible from the body of the church, from which it is not separated by any partition ; this tower is a part of the church within 7 i: 8 Geo. 4, c. 29, s. 10. Rex v. Wheeler, 3 C. & P. 585. The vestry of a church was broken open and robbed. It was formed out of what before had been a church porch, but had a door opening into the churchyard, which could only be unlocked from the inside : — Held, that this vestry was part of the fabric of the church, and within the mean- ing of an indictment for sacrilegiously breaking and entering the church. Reg. v. Ei-anx, Car. & M. 298. Digitized by Microsoft® ^ 81 CRIMINAL l.KW—Burglanj and Housebreaking. 82 At Coiiimon Law.] — Burglary may be com- mitted in a church at common law. Iteg, v. Baiter, 3 Cox,, G. C. 581. Goods the Subject of Larceny. ] — The provisions of 1 Bdw. 6, 0. 12, s. 10, were not confined to gortds used for divine service ; they extended to articles kept in the church to keep it in repair, and therefore a conviction on an indictment on that act, for stealing a snatch-block to raise weights in case the bells wanted repairing, and an iron pot for charcoal, used to air the vaults, was held right. Ite.r v. llnurh: R. & E. C. C. 386. To warrant a conviction for breaking and entering a, church under 7 & 8 Geo. 4, c. 29, s. 10, there must have been a stealing therein of some chattel. Stealing a fixture was not suf- ficient. But if the stealing of fixtures was averred in such count, the prisoner might be convjoted simply thereof under s. 44. Meg. v. Baker, 3 Cox, C. 0. 581. A. and B. were indicted for sacrilegiously break- ing into a church and stealing a box and money : — Held, that the box (under the circumstances) was not afiixed to the freehold, but was construc- tively in the possession of the vicar and church- wardens. Beg. X. Wortley, 1 Don. C. C. 162. 6. Intent. Breaking and entering a house in the night- time to recover tea, which had been seized, is no burglary, being intended for the benefit of the supposed owner. Be-r v. Kjiight, 2 Bast, P. C. .r.io. If several agree to commit a burglary, but one communicates the intent to an officer, that he may take the other two, and the officer is upon the watch accordingly ; the pereon who has made that communication to the officer will not be particeps criminis in the burglary, although he is present when it is committed, and pretends to assist the other two, but in fact expedites their apprehension. Bea> v. Dannelly, E. & E. ('. C. 310 ; 2 Mai-sh. 571. Nor will it make any difierence, although his object in detecting is to obtain for himself (by previous agreement with the officer) part of a reward that will be payable on coiiviotion. IJ). tion. either for felony o; kIuiU on mcli mlseeiuent at tlie (Iheretion of tlie penal sertitiule for any 7. Aemed with Intent to Bbeak oe Enteb. Statute.]— By 24 & 25 Vict. c. 96, s. 58, »(•/«.- sacver shall T>e found l>y night armed with any dangerotis or oftenxire weapon or instriiment whatsoecer, with intent to ireah, or enter into any dtoelling-hoiisc or other Iniilding lohatmerer. and to eommit any felony therein, or shall be found by night haring -in his possession without lawful exeuse (i7(.e proof of lohich e,rc^ise shall lie on siieh person") any piehloeh. Ivy, eroo'.jaek. hit, or other implement of househrealiing, or shall he found by night having his fiiee hluehened or otherwise disgieised with intent to eommit any felony, or shall be found by might in any dwel- ling-honse or other breilding whatsoever with intent to commit any felony therein, shall be guilty of a misdemeanor. (^Precisely similar to former enactments, 14 & 15 Vict. c. 19, s. 1.) By s. 59, ?t>/(i«w/v;' shall be eonrieted of any sychmisdemeanorasin the last preceding section inentioned, committed after a prerious conrie- ■ such misdemeanor, Conriction be liable^ court, to be liept in term not eiu-eeding ten years and not less than Jive years (27 & 2a Vict. c. 47), or to be imprisoned for any term_ not ca-eccding tioo years, with or without hard labour. (^Former provision, 14 & 15 Vict. c. 19, s. 2.) What are Implements of Housebreaking.]-— Keys are implements of housebreaking within the statute ; for though commonly used for law- ful purposes, they 'are capable of being employed for purposes of housebreaking, and it is a question for the jury whether the pei-son found in posses- sion of them by night, had them without lawful excuse, and with the intention of using them as implements of housebreaking. Beg. v. Oldkam, 2 Den. C. 0. 472 ; 3 C. & K. 249 ; 5 Cox, C. C. 551 ; 21 L. J., M. C. 134 ; 16 Jur. 505. Semble, per Maule, J., that the printed copy of the section of the statute is wrongly punctuated, and that the word key is within the express terms of the statute, lb. Intent to commit Felony Immaterial.] — An intent to commit felony forms no ingi-edient of the offence of being found by night in the pos- session of housebreaking instruments without la^^-ful excuse. Beg. v. Bailey, Dears. C. C. 244 ; i; Cox. C. C. 241 ; 23 L. J., M. C. 13 ; 17 Juiv 1106. Particular House must be specified.]— Where persons are charged, under 24 & 25 Vict. c. 96, s. 58, with being found by night armed with an offensive weaijon, with intent to break and enter into a dwelling-house or other building, and to commit a felony therein, the particular house or building must be specified in the indictment, and proof given of their intent to break and enter such house or building. Ueg. v. Jarrald, 9 Cox, C. C. 307 ; L. & C. 301 ; 32 L. J., M. C. 258 ; 9 Jur., N. S, 629 ; 8 L. T. 515 ; 11 AV. E. 787. Implements of Housebreaking — Possession by one is Possession by all.] — When several persons are found out together by night for the common purpose of housebreaking, and one only is in possession of the housebreaking implements, all may be found guilty of the misdemeanor of being found by night in possession of implements of housebreaking without lawful excuse under 24 & 25 Vict. c. 96, s. 58, for the possession of one is in such case the possession of all. Be^. v, Thomjison, 11 Cox, C. C. 362 ; 21 L. T. 397. 8. Stealing in a Dwelling-house. See 24 & 25 Vict. c. 96, s. ,-)6, infra. Charge of Stealing Specified Goods.] — A. was indicted for breaking and entering a dwelling- house, and stealing certain specified goods. At the time of breaking and entering, the goods named in the indictment were not in the house, but there were other goods there belonging to the prosecutor. The jury found that he was not guilty of the felony charged, but that he was guilty of breaking and entering the dwelling- house of the prosecutor, and attempting to steal Digitized by Microsoft® 83 CRIMINAL LAW — Burglary and Housebreaking. 84 tis goods therein : — Held, that there was no , attempt to commit the felony charged within 14 & 15 Vict. c. 100, s. 9, and therefore the verdict could not be sustained. Reg. v. irPherson, Dears. & B. C. C. 197 ; 7 Cox, C. C. 281 ; 26 L. J.. M. C. 131 ; 3 Jur., N. S. 323. No Actual Stealing.] — An indictment for feloniously breaking and entering a dwelling- house, with intent feloniously to steal therein, and not for actually stealing, cannot be sus- tained, the felony created by 7 & 8 Geo. 4, c. 29, s. 12. being entering and stealing. If''/), v. Wt-ii- moutli, 9 Cox, C. C. 348. In whom Property in Croods Laid.] — A prisoner was indicted for breaking into the house of Elizabeth A. and stealing her goods. There was a second count laying the property of the goods in the Queen. It was shewn by proof of the record that the husband of Elizabeth A. had been convicted of felony, and it was also proved that he was in prison under his sentence, and that the articles stolen were his before his con- viction, and had remained in the house from the time of his apprehension, and that the wife con- tinued in possession of the house and goods till they were stolen : — Held, that the prisoner might be properly convicted of larceny on the second count, which laid the property of the goods in the Queen, although there had been no office found, and that he could not be convicted of housebreaking, as that part of the indictment which laid the goods and the house to be those of Elizabeth A. could not be supported. Reg. v. Whttclmul, 9 C. & P. 429. A. was charged with breaking into the house of K., and stealing the goods of M. It was proved by M. that K., his brother-in-law, had taken the house, and that il: (who lived on his property) carried on the trade of a silversmith for the benefit of K. and his family, having him- self neither a share in the profits nor a salaiy. M. stated that he had authority to sell any i^art of the stock, and might take money from the till, but that he should tell K. of it ; and that he sometimes bought goods for the shop, and some- times K. did it : — Held, that M. was a bailee, and that the goods in the shop might properly be laid as his property. Reg, v. Bird, 9 C. & P. 44. Prisoner Admitted by Servant.] — ^A servant pretended to concur with two persons, who pro- posed to him to unite with them in robbing his master's house. The master being out of town, the servant communicated with the police, and acted under their instructions. In consequence of this, a little after nine o'clock one evening, he let in one of the persons, by lifting the latch ; but before that person had taken any property he was seized by the police, and, a crow-bar being found upon him, was immediately placed in confinement. After this the servant went out again, and fetched the second person, and let him in in the same manner. This person was seized with a basket of plate in his hand, which he had carried from the kitchen, part of the way up- stairs :— Held, that neither of the persons could be convicted of burglary ; but that the one who wa sseized with the plate might be convicted of stealing in a dwelling-house. Reg. v. .Times, Car. & M. 218. 9. Bkeaking into Schools, Shops, Waee- HOUSES OE Counting-houses. Statute.]— By 24 & 25 Vict. c. 96, s. 56, wlw- soever ghall hreali and enter ang dioiiling-lnmne, school-Uouxc, sh(yp, loarclioiise or counting-house, and eommit any felony therein, or, being in any dwelling-house, sefwol-house, shop, 'ivarehouse, or eomiting-Aousr, shall eommit any felony therein, and hreah out of the same, shall be guilty of felony. {Former jtro visions, 7 & 8 Geo. 4, c. 29, S3. 12, 15.) By s. 57, whosoever shall hreah and enter any dweUing-house, church, chapel, meeting-house, or other place ofdirine worship, or any building within the cvrtilnge, school-house, shop, ware- house, or counting-house, with intent to commit any felony therein, shall be ijuilty of felony. Shops.] — A shop, to be within the 7 & 8 Geo. 4, c. 29, s. 15, and 7 Will. 4 & 1 Vict. c. 90, s. 2, must be a shop for the sale of goods, and a mere workshop will not be sufficient. Reg. v. Saiiders, 9 C. & P. 79. But a person who breaks into a blacksmith's shop and steals goods there might be convicted of brejiking into a shop and stealing goods under 7 & 8 Geo. 4, u. 29, s. 15. Reg. v. Carter, 1 C. & K. 173. An opening of a door in a shop under the same roof where the prisoner lived as a servant: for the purpose of committing a felony, was a break- ing and entering within 7 & 8 Geo. 4, o. 29, s. 12. Reg. V. Wenmouth, 8 Cox, C. C. 348. Warehouses.] — A cellar used merely for the deposit of goods intended for removal and sale is a warehouse. Reg. v. Hill, 2 M. & Rob. 458, Counting-houses.] — A building formed part of premises employed as chemical works ; it was commonly called the machine-house, a weighing machine being there, where all the goods sent out were weighed, and a book being kept there in which entries of the goods so weighed were made. The account of the time of the workmen employed in the works was kept in this place, the wages of the men were paid there ; the books in which the entries of time and the payment of wages were entered were brought to the building for the purpose of making entries and paying wages, but at other times they were kept in what was called the office, where the general books and accounts of the concern were kept : — Held, that this building was properly described in an iu- dictment as a counting-house within 7 & 8 Geo. 4, c. 29, s. 13. Reg. v. Potter. i2 Den. C. C. 235; 3 C. & K. 179 ; 5 Cox, C. C. 187 ; T. & M. 561 ; 20 L. J., M. C. 170 ; 15 Jur. 498. 10. Indictment. Mame of Owner of House is Essential.]— The name of the owner of the house is essential in an indictment for burglary, and for stealing in the dwelling-house. Rea; v. White, 1 Leach, C. C. 252 ; 2 East, 513,780 ; S.P.,Re.r v. Woodward, 1 Leach, C. C. 253, n. Actual Occupier.]— A house may be de- scribed as in the possession of the actual oc- cupier, though his possession is wrongful. R^Ji v. Wallis. 1 M. C. C. 344. E 2 Digitized by Microsoft® 85 CRIMINAL LAW — Burglary and HousehreaJdng. 86 Caretaker.] — A prisoner was indicted for burglary in the dwelling-house of B. B. worked for \V., who did carpenter's work for a public company, and put B. into the house, which be- longed to the company, to take care of it, and some mills adjoining. B. received no more wages after than before he went to live in the house : — Held, not rightly laid. Bea; v. RawUiigs, 7 C. & P. 150. Workhouse.] — In an indictment for burglary in the workhouse of a poor law union, the worlchouse, being under 5 & 6 Will. 4, c. 69, s. 7, may be described as the dwelling-house of the guardians of the poor of that union. Semble, that the workhouse cannot be described as the dwelling-house of the master of the workhouse. Reg. V. Frowen, i Cox, C. C. 266. Tenant at Will.] — If the owner of a house suffers a person to live in it rent-free, it may be stated, in an indictment for breaking into such house in the day-time, to be that person's house ; such person being tenant at will. Rem V. Collctt, E. & B. C. C. 498. Joint Tenants.] — If a house is let to A., and a warehouse under the same roof, with an internal communication to the house, to A. and B. ; the warehouse, in an indictment for burglary, cannot be described as the dwelling-house of A. Re,v V. JenUns, E. & E. C. C. 244. If two or more rent of the same owner different parts of the same house, so as to have amongst them the whole house, and the owner does not reserve or occupy any part of it, the separate part of each may be described as the dwelling- house of each. Rev v. Bailey, 1 M. 0. C. 2,S. A house the joint property of partners in trade, and in which their business is carried on, may be described as the dwelling-house of all the partners, though only one of them resides in it. Rex V. Atliea, 1 M. C. C. 329. See Rex v. Jones, 1 Leach, C. C. 537 ; 2 East, P. C. 504. Married Women.] — If a married woman takes a house, in which a burglary is committed, the house must be laid as the house of the husband, although she is living 'separate from him. Rex v. Smytli, 5 C. & P. 201. The house of a husband in which he allows his wife to live separate from him, may be described in an indictment for burglary, as the house of the husband, although the wife lived there in adultery with another man, who paid the house- keeping expenses ; and although the husband suspected a criminal intercourse between his wife and the other man when he allowed her to live separate. Rex v. Wilford, E. & E. C. C. 517. Where a married woman lived apart from her husband, upon an income arising from property vested in trustees for her separate use : — Held, that a house which she had hired to live in was, in an indictment for burglary, properly described as her husband's dwellmg-house, although she paid the rent out of her separate property, and the husband had never been in it. Rea> v. French, E. & E. C. 0. 491. Lodgers.] — The apartments of lodgers will be considered as their respective dwelling-houses, if the owner of the premises does not sleep under the same roof. Rex y. Rogers, 1 Leach, C. C, 89 ; 2 East, P. C. 506. See Rex v. Carrell, 1 Leach, C. C. 287 ; 2 East, P. C. 506. A house, the whole of which is let out m lodg- ings, and has only one outer door common to all its inmates, is the mansion-house of its several in- habitants. Rer V. Trajjsliaw, 1 Leach, C. C. 427 ; 2 East, P. C. 506, 780. See Rex v. Turner, 1 Leach, C. C. 305 ; 2 East, P. C. 492. Innkeeper or Guest.] — Where one, under pretence of being robbed, forced the door of a guest's chamber in an inn, at night, and stole his goods : — Held, that the burglary must ;be laid .to be in the dwelling-house of the innkeeper, and not of the guest. Rex v. Prosser, 2 East, P. C. 502. Company or Officer or Agent.] — If a burglary is committed in the house of a trading company, in the house belonging to which an agent of the company resides, with his family, for the purpose of carrying on the business, it may be laid to be the dwelling-house of the agent, although the rent is paid and the lease is held by the company. Rex v. Margetts, 2 Leach. C. C. 930. Though a servant lives rent-free in a house belonging to an insurance company, and the company pays the taxes, and the company's business is carried on in the house, ivet if the servant and his family are the only persons who sleep in the house, and the part in which the company's business is carried on is at all times open to those parts in which the servant lives, it may be stated as the servant's house, though the only part entered by the thief was that in which the company's business was carried on ; and though the judges would not say that it might not have been described as the company's house, they thought it might, with equal propriety, be described as the house of the servant. Rex v. Witt, 1 M. C. C. 248. A burglary in the apartments of officers of a public company must be laid to be in the mansion-house of such company. Rex v. Haw- kins, 2 East, P. C. 501. Sooms in College.] — So of the apart- ments of a college not occupied by the students, as the butteiy. Rex v. Maynard, 2 East, P. C. 501. _ Master or Servant.]— Though a servant lives rent-free for the purpose of his service in a house provided for that purpose ; yet, if he has the exclusive possession, and it is not parcel of any premises which his master occupies, it may' be described as the house of the servant ; espe- cially if the house belongs not to his master, but to some person paramount to his master ; as in the case of a toll-collector's house, occupied by the servant of the lessee of the tolls for the purpose of collecting the tolls. Rex v. Camfield, 1 M. C. C. 42. If the owner of a cottage lets one of his work- men, with his family, live in the cottage free of rent and taxes, and he lives there principally, if not wholly, for his own benefit, it may be de- scribed as the workman's dwelling-house in an in- dictment for burglaiy. Rex r. JoUina, E. & E. C. C. 525. ■' A. was in the service of B. and lived in a house close to B.'s place of business. B. did not live m the house himself, but he paid the rent and taxes. A. paid nothing for his occupation. Part Digitized by Microsoft® 87 CRIMINAL 'LA.W—Btirglary and Househrealdng. of the house -was used as store-rooms for B.'s goods : — Held, that this was the dwelling-house of B., and was improperly described in the in- dictment as the dwelling-house of A. Reg. v. Courtenay, 5 Cox, C. C. 218. A gardener lived in a house of his master, quite separate from the dwelling-house of his master, and the gardener had the entire control of the house he lived in, and kept the key : — Held, that, on an indictment for burglary, the gardener's house might be laid either as his or as his master's. Eex v. Eees, 7 0. & P. 568. If a servant lives in a house of his master's at a yearly rent, the house cannot be described as the master's house, though it is on the premises where the master's business is carried on, and although the servant' has it because of his services. Rex v. Jarvis, 1 M. C. C. 7. Where a servant had part of a house for his own occupation, and the rest, in which a burglary is committed, is reserved by the proprietor for other purposes, the part reserved cannot be deemed part of the servant's dwelling-house. Rex V. Wilson, B. & E. C. C. 115. And it will be the same if any other person has part of the house, and the rest is reserved. II. See also cases ante, col. 77, Place.] — It is sufficient to allege that the burglary was committed at a place, naming it, e.g. "at Nortou-juxta-Kempsey, in the county aforesaid," without stating the place to be a parish, vill, chapelry, or the like. Reg. v. Broohes, Car. & M. oii. An indictment for breaking into a warehouse, and stealing goods, stated the ofEence to have been committed in " the parish of St. Peter the Great, in the county of W." Part only of the parish of St. Peter the Great is in the county of -VV. : — Held, that indictment could not be supported for the breaking into the warehouse, but that it was sufficient for the larceny ; and that to be good as to the breaking, it should have charged the ofEence to have been committed " in that part of the parish of St. Peter the Great which lies within the county of W." An indictment for housebreaking, after charg- ing the breaking and entering in the usual form, charging that the prisoner " forty-two pieces of the current gold coin of this realm, called sovereigns, of the value of iil., in the same dwelling-house then and there being found, then and there feloniously did steal and carry away : " is good, and the words " then and there," in the last allegation, are sufficient without the words "in the same dwelling-house" being added to them. Reg. v. Andrews, Car. & M. 121. An indictment alleging that J. F., late of the parish of F., in the county of M., with force and arms, at the parish aforesaid, in the county aforesaid, the dwelling-house of the guardians of the poor of the P. Union, there situate, feloniously did break and enter, is a sufficient description of the situation of the workhouse, the words "there situate," referring not to the union, but to the parish before mentioned. Reg. v. Fruwen, i Cox, C. C. 266. Time at which Offence Committed.] — It is suffi- cient in an indictment forburglaiy to allege that the ofEence wascommitted.burglariously, without Digitized by Microsoft® 88 stating the time at which the ofEence was com- mitted, or even that it was done in the night time. Reg.v. Thompson, 2 Cox, C. C. 445. Contri, Rex V. WaihUngtun, 2 East, P. 0. 513. Property in Goods.]— An indictment for bur- glary charged the prisoner with breaking, in the night-time, into the dwelling-house of E. B., " with intent the goods and chattels in the same dwelling-house then and there being feloniously and burglariously to steal, and stealing the goods of E, B." It was proved that the house was that of E. B., but that the goods the prisoner stole were the joint property of E. B. and two others : — Held, that if it was proved that the prisoner broke into the house of E. B. with intent to steal the goods there generally, that would be suffi- cient to sustain the charge of burglary contained in the indictment, without proof of an intent to steal the goods of the particular person whose goods the indictment charged that he did steal. Reg. V. Clarlie, 1 C. & K. 421. An indictment for burglariously breaking and entering the house of A., with intent to steal the goods of B., is bad, if no person of that name had any property in the house. Rex v. JenJis, 2 Leach, C. 0. 774 ; 2 East, P. C. 514. An indictment which charges that the prisoner unlawfully broke and entered the dwelling-house of E. P. P., " ^yith intent the goods and chattels in the dwelling-house then and there being then and there feloniously to steal, take and. carry away," is good, although it does not state whose goods the prisoner intended to steal. Reg. v. Lawes, 1 C. & K. 62. A. and B. were indicted for sacrilegiously breaking into a church and stealing a box and money : — Held, that the property was rightly laid in the vicar and others, in their indivi- dual names. Reg. v. Wortley, 1 Den. C. C. 162. Breaking out.] — An indictment for burglary stating in one count that the prisoner " did break to get out," and in another that he did break and get out was sufficient, since the 7 & 8 Geo. 4, c. 29, s. 11, which used the words break out. Ren V. Compton, 7 C. & P. 139. Burglary and Striking.] — An indictment on 7 Will. 4 & 1 Vict. c. 86, s. 2, for the capital ofEence of burglary and striking, must have charged both the burglary and the striking, and the proof must correspond with the indictment. Reg. V. Parfitt, 8 C. it P. 288. A. was indicted for a burglary in the house of S. W., and striking D. James. The burglary was proved as laid, but the person struck was D. Jones : — Held, that the prisoner must be ac- quitted of the capital charge, and convicted of burglary only. lb. Intent to Commit Felony. ] — It must be alleged and proved either that a felony was committed in the dwelling-house, or that the party broke and entered with intent to commit some felony within the same. Rex v. Dohhs, 2 East, P. C. 513. And whatever be the felony really intended, the same must be laid in the indictment and proved agi'eeably to the fact. Rex v. Vander- comi, 2 East, P. C. 514, 517 ; 2 Leach, C. C. 708. But the same fact may be laid with several ia 89 CEIMINAL LAW— Coining. 90 tents. Jli:i! V. Thompson, 2 East, P. C. 515 ; 2 Leaoh, C. C. 1105, n. An indictment foi burglary, charging in one count an intent to steal the goods of the owner, and in another an intent to muider him, is good, for it is the same fact and evidence, only laid in different ways. Ih. Against the form of the Statute.] — The altera- tions made in the law with respect to bur- glaiy, by 7 Will. 4 & 1 Vict. c. 86, as to the hours, and a.s to the punishment, did not make it necessary for an indictment for that offence to conclude contra formam statuti, as the altera- tion with respect to the hours did not alter the offence, and the mere diminution of the punish- ment did not make that conclusion necessary. Ileg. T. Polly, 1 C. & K. 77. See now 14 & 15 Vict. c. 100, s. 24. 11. Evidence and Trial. For what Offence Prisoners may be Convicted.] — On an indictment for burglaiy by breaking into a house in the night-time and stealing to the value of ol. or more, the prisoner might be con- victed of burglary, or of housebreaking, under 7 & 8 Geo. 4, c. 29, s. 12, or of stealing in a dwelling-house to the value of 51. Rem v. Comp- ton. 3 C. & P. 418. On an indictment for burglary, the prisoner may be acquitted of the breaking, and found guilty of stealing in the dwelling-house. He.r V. WitJial, 1 Leach, C. C. 88 ; 2 East, P. C. 515, 517. On an indictment for burglariously breakmg and entering a dwelling-house (omitting the words " with intent to ste.il "), and then and there stealing goods tlierein, the prisoner may be H-ell convicted of the burglary if the larceny be proved : secus if not. Rej; v. Furn-hal, K. & E. C. C. 445. When the felony is laid to constitute the bur- glary, an acquittal of the burglary is an acquittal of stealing in the dwelling-house. Itcx v. Comer, 1 Leach, C. C. 36. Where a party is indicted both for burglary and feloniously stealing in the dwelling-house, and is acquitted of the burglary, but found guilty of the stealing, the verdict should be entered thus : " Jury say not guilty of breaking and entering the dwelling-house in the night, but guilty of stealing (the property) in the dwelling- house." Rex V. Hn)i(jerford,-2 Bast, P. C. 518 ; 1 Leach, C. C. 88. Indictment against Two Persons,] — Upon an indictment for burglary and larceny against two, one may be found guilty of the bui-glary and larceny, and the other of the larceny only. Rex V. Bntterioortn, E. & E. C. C. 520. .Day in Indictment not Proved.] — If a prisoner is charged with a burglary and stealing the goods, the prosecutor, on failing to prove that these facts were committed on the day laid in the indictment, cannpt be admitted to prove that the larceny was committed on a prior day. Rix V. Vandercoml), 2 Leach, C. C. 708 ; 2 East, P. C. 519. Impression of Shoe — When made not Proved.] — In an indictment for burglaiy, the entry was proved to have been effected by breaking open a window at the back of a house : — Held, that the correspondence of the prisoner's shoe with an impression in the front garden, not proved to have been made during that night, was not any evidence to go to the jury to show a connexion with such entry. Reg. v. Coots, 2 Cox, C. C. 188. Possession of Goods as Evidence.] — On the night following the commission of a burglary, two boys were found concealed in a corn-chest, in an open gig-house with which they were not in any way connected, and half a mile from the house of the prosecutor. Outside the corn-chest was found some of the stolen property, and on the loft over the gig-house was found another portion of the stolen property : — Held, that there was no evidence to go to the jury of possession by the boys of any of thOi-stolen articles. Z J. On a charge of burglary, possession by the prisoners of part of the stolen propert}' veiy soon after the burglary, with an account given of it not reasonable or credible, is sufficient primS facie evidence, without express evidence to falsify it. It is so, however, only if, upon all the cir- cumstances in the case, the account given is not reasonably credible. Reg. v. Exalt, 4 F. & F. 922. Other Offences of same Character.] — Upon a trial for breaking into a booking-office at a rail- way station, evidence was admitted that the prisoners had, on the same night, broken into three other booking-offices belonging to thi'ee other stations on the same railway, the four cases being all mixed up together. Reg. v. CoMen. 3 F. & F. 833. See Reg. v. Rearden, 4 F. .t F. 76. X. COINING. 1. Statute, 91. 2. Counterfeiting and Uttering Gold and Silrer Coin, 91. 3. Counterfeiting and Uttering Copper Coin. 97. 4. Counterfeiting and Uttering Foreign Coin, 5. Colonring, 99. 6. Impairing or LiifMening Gold or Silrer Coin, 100. 7. Rnying or Selling Cminterfeit Coin. 100. 8. Ki-rhanging Coin at hiqlier than its Valve, 101. 9. Importing or i:xporti7ig Conntcrfeit Coin, 102. 10. Defacing Gold. Silrer or Copper Coin, 102. 11. Texthuj Genulnenesx of Gold or Silver Coin, 102. 12. Implements for Coining, 103. 13. Unlaufnl Possession of Base Coin, Filings, or Clippings, 106. 14. When Offence Complete, 107. 15. Conreying Coining Tools or Coin, from the Mint without Authority, 107. 16. Fcidrnce, 107. 17. Prcrious Conriction, 108. 18. Validity of Convictions and Commit- mcnts, 109. 19. Poicer to Sei::e Conntcrfeit Coin and Coin- ing Tools, 109. Digitized by Microsoft® 91 CRIMINAL LAW— CoiiiiiKj. 92 20. Ajjjjn'hi.'Hxiiiii, of Offenders, 109. 21. Pruscvutiim and Trial of Off'eiKli-n, 109. 22. Punishment, 110. 23. Costs of Prosecution, 110. 21. Actions against Persons acting in Pur- suance of the Statute, 111. 1. Statute. The 24 & 25 Vict. c. 99, consolidates the statute law of the United ^Kingdom against offences re- lating to tile coin. " Current Gold and Silver Coin."] — By s. 1, in the i7iterpretat/07i of and for the pwrjjoses of the act', the crjiression "the Queen's current gold or silver coin, " shall include any gold or silrer coin coined in any of her Majesty's mints, or laivfullg current, hy tIHuc of any proclamation or other- loise, in any part of her Majesty's dominions, whether within the United Kingdom or other- lo-isc, "Copper Coin."] — And the expression --the Queen's copx>er coin" shall include any copper coin and any coin of bronze or mixed metal coined in any of her Majesty's mints, or lawfully current, hy rirtue of any proclamation or other- wise, in any part of her Majesty's said do- minions. ■■False or Counterfeit Coin."] — And the e.e- 2}rcssion "false or counterfeit coin, resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin," shall include any of the current coin which shall have been gilt, silccred, loashed, coloured, or cased over, or in any manner altered, so as to resemble or be apparently intended to resemble or pass for any of the Queen's current coin of a higher denomination. '■ Current Coin."] — And the expression " the Queen's current coin" shall include any coin coined in any of her Majesty' s mints, or laufully current, by virtue of any proclamation or other- wise, in any part of her Majesty's said do- minions, and ichether made of gold, silver, cop- per, bronze, or mixed metal. Custody or Possession — What is.] — And where the having any matter in the custody or posses- sion of any person is mentioned in this act, it shall include, not only the having of it by him- self in his personal custody or possession, but also the Imowingly and wilfully having it in the actual custody or possession of any other person, and also the Imowingly and wilfully having it in any dwelling-house or other building, lodging, apa Am ent, field, or other place, open or inclosed, whether belonging to or occupied by himself or not, and loheiher such matter shall be so had for his men use or benefit or for that of any other jyerson.- ■2. COUNTKRFEITING AND IjTTBMNG GOLD AND SiLVBE Coin. Counterfeiting.]— By 24 & 25 Vict. c. 99, s. 2, lohosoover shall falsely male or counterfeit any coin resembling or apparently intended to re- semble or pass for any of tlw Queen's current gold or xilrcr coin, shall, in Unglinid and Ire- land, be guilty of felony, and in Scotland of a high crime and offence, and, being convicted thereof, shall be liable, at the discretion of the court, to lie heptin penal senitudc forlife, or for any term not less than Jive years (27 & 28 Vict, c. 47) ; or to be imprisoned for any term not ex- ceeding two yeorx, with or without hard labour, and with or ivithout solitary conftnenient. (For- niei provision, 2 & 3 Will. 4, o. 34, s. 3.) Counterfeit Coin — What is.] — A genuine sove- reign had been fraudulently filed at the edges to such an extent as to reduce the weight by one twenty-fourth part, and to remove the milling entirely, or almost entirely, and a new milling had been added in older to restore the appear- ance of the coin : — Held, by Lord Coleridge, C.J., 1*011001;; and Huddleston, BB. (Lush and Stephen, JJ., dissenting), that the coin was false and counterfeit within 24 & 25 Vict. c. 99, s. 9. Peg. V. Hermann, i Q. B. D. 284 ; 48 L. J., M. 0. 106 ; 40 L. T. 2C3 ; 27 W. E. 475. To be made Abroad.] — Some apparatus for manufacturing counterfeit coin was found in the prisoner's possession, but the jury found, that he intended to make only a few counterfeit coins in England, with a view merely of testing the completeness of the apparatus before he sent it out to Peru : — Held, that even to make a few coins in England with that object would be to commit the offence of making counterfeit coins within the statute, lleg. v. Uoberts, Dears. C. C. 539 ; 7 Cox, C. C. 39 ; 25 L. J., M. C. 17 ; 1 Jur., X. S. 1094. Impression not Necessary.] — It is not necessary, to constitute the offence of coining, that there should be an impression on the coun- terfeit, if it resembles the common worn coLii. Rex V. M'elch, 1 East, P. C. 87, 164 ; 1 Leach, C. C. 364. A counterfeit shilling produced in evidence, although it is quite smooth, and there is no im- pression of any sort discernible on it, will support an indictment for counterfeiting to the similitude of the legal coin. lb. To make a round blank like the smooth shil- lings in circulation, the original impression on which has been effaced by wear, is counterfeiting to the likeness and similitude of the good legal and curi'ent coin of the realm called a shilling. Itcx V. Wilson, 1 Leach, C. C. 285. To resemble real Coin — Question for Jury.] — It is a question of fact whether or not counterfeit coin was made to resemble the real coin. Hex V. Welch, 1 East, P. C. 87, 164 ; 1 Leach, C. G. 364. Uttering.]— By 24 & 25 Vict. c. 99, s. 9, whoso- ever shall tender, utter or put off' any false or counterfeit coin, resembling or apparently in- tended to resemble or pass for any of the Queen'x current gold or silver coin, knon-ing the same to be false or counterfeit, shall, in England andlre- land, he guilty of a misdemeanor, a?id being convicted thereof shall be liable, at the discre- tion of the court, to be imprisoned for any term not exceeding one year, with or n)ithout hard labour, and with or without solitary confine- ment. {Sim ila r to former provision, 2 & 3 Will. 4, c. 34, s. 7.) Digitized by Microsoft® 93- CEIMINAL LAW— Coining. 94 By s. 10, icliosoever shall tender, utter or put itjf any false or cawiterfelt cum,reseml)lhig or apparently intended to resemhle or pass for any if the Queen^s current gold or siln-r coin, know- ing the same to Ve false or cmt,ntcrft'it,and shall, lit the time of such tendering, utterinrj or put- ting off, have in Ms custody or p)ossession, lie- sides the false or counterfeit coin so tendered, uttered or ^;?/i off', any other piece of false or counterfeit coin, resemWinrj or apparently in- tended to resemUe or pass for any of the Queen's current gold or silver coin, or shall, either on the day of such tendering, uttering or glutting off', or icithin the space of ten days then next ensuing, tender, utter or put off any false or counterfeit coin, rcsemhling or apparently in- tended to resemhle or pass for any of the Queen's enrrent gold or silver coin, linowing the same to he false or counterfeit, shall, in England and Ireland, he guilty of a misdemeanor, and, heing convicted thereof, shall he liahle, at the discre- tion of the court, to he imprisoiuidfor any term not exceeding two years, with or icithout hard labour, and icith or without solitary confinement. {Former provision, 2 & 3 "Will. 4, c. 34, s. 7.) By s. 11, whosoever shall have in his custody or possession three or more pieces of false or counterfeit coin, rcsemhling or a2)2}arently in- tended to resemhle or pass for any of the Queen's current gold or silver coin, hnoioing the same to he false or counterfeit, and with intend to utter or put off the same or any of them, shall, in England and Ireland, he guilty of a misde- meanor, and, heing convicted thereof, shall he liahle, at the discretion of the court, to be hept in penal servitude for the term of five years (27 & 28 Vict. c. 47), or to he imprisoned for any term not e:teeeding two years, icith or icithout hard labour, and with or ivithovt solitary confinement. By s. 12, whosoever, having been convicted, either before or after the passing of this act, of any such misdemeanor, or crime and off'ence as in any of the last three preceding sections men- tioned, or of any felony or high crime and offence against this or any former act relating to the coin, shall aftcrioards commit any of the mis- demeanors or crimes and offences in any ef the said sections mentioned, shall, in England and Ireland, he guilty of felony, and, being con- victed thereof, slwXl he liahle, at the discretion of the coii,rt, to be hept in penal servitude for lift, or for any term not less than five years (27 cS; 28 Vict. c. 47), or to be impri-^oned for any term not cveecding two years, with or without hard labour, and loith or loithout solitary con- finement. By s. 13, ivhosoever shall, with intent to de- fraud, tender, utter, or pnt off, as or for any of the Queen's current gold or silver coin, any coin not heing such current gold or silver coin, or any medal or piece of meted or mixed metals resem- bling in s-ixe, figure, and colour the current coin IIS or for lohieh the same shall be so tendered, uttered or put off, such coin, medal, or 2'ieee of metal or mixed metals so tendered, uttered, or 2>nt off being of less value than the current coin as or for which the same shall he so ten- dered, uttered or put off', shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and off'ence, and, being con- victed thereof, shall be liable, at the discretion of tlhc co%irt, to he imprisoned for any term not exceeding one year, with or without hard labour, and with or loithout solitary confinement. What amounts to.] — A prisoner went into a shoji, asked for some oofEee and sugar, and in payment put down on the counter a counterfeit shilling ; the prosecutor said that the shilling was a bad one ; whereupon the pri- soner quitted the shop, leaving the shilling and also the coffee and sugar : — Held, that this was - an uttering and putting off within the statute. Reg. V. Welch, T. & M. 409 ; 2 Den. C. C. 78 ; 4 Cox, C. C. 430 ; 20 L. J., M. C. 101 ;' 15 Jur. 136. The giving of a piece of countei'feit money in charity is not an uttering, although the person may know it to be countei'feit ; as in cases of this kind there must be some intention to de- fraud. Reg. V. Page, 8 C. & P. 122. But where a pfrson gave a counterfeit coin to a woman with whom he had shortly before had intercourse : — Held, an uttering. Reg. v. , 1 Cox, C. C. 250. Compare cases sub tit. Foegbet, infra. Joint Uttering.] — ^If two utterers of counterfeit coin, with a general community of purpose, go different ways, and utter coin apart from each other, and not near enough to assist each other, their respective utterings are not joint utterings by both. Rex v. Manners, 7 C. & P. 801. If two jointly prepare counterfeit coin, and utter it in different shops, apart from each other, but in concert, and intending to share the pro- ceeds, the utterings of each are the joint utter- ings of both, and they may be convicted jointly. Reg. v. Ilwrse, 2 M. & Bob. 360. On an indictment for a joint uttering of coun- terfeit coin, where both are not present at the time of the uttering, the true question seems to be, whether the one was so near the other as to help the other to get rid of the counterfeit coin. Reg. v. Jones, 9 C. & P. 761 ; 2 M. C. C. 85 ; 2 Lcwin, C. C. 119, 297. Prisoners together uttered a bad half-crown. Shortly afterwards they separated, and one of them went to a shop and uttered another bad half-crown, and then the other went to the same shop and uttered a third bad half-crown ; but at these second and third utterings neither was proved to have been near the other: — Held, that the proof of previous concert would not sustain a count for a joint uttering in either of the second or third utterings. Req. v. West, 2 Cox, C. C. 237. Persons privy to the uttering of a forged note, by previous concert with the utterer, but who were not present at the time of uttering or so near as to be able to afford any aid or assistance : — Held, not to be principals but accessories before the fact. Rex v. Soares E & R. C. C. 25 ; 2 Ex. P. C. 974. • Joint Tittering and Possession of other Counterfeit Money.]— If two prisoners are in- dicted for uttering a counterfeit shilling, having another counterfeit shilling in their possession, it IS not necessai-y to prove with certainty which of the pieces was the one uttered, and which was found on them unuttered, if both the pieces of the money arc proved to be counterfeit. And if it appears that two prisoners went to a shop, and that one of them went in and uttered the bad money, having no more in her possession, and the other stayed outside the shop, having other bad pieces of money, both may be con- Digitized by Microsoft® 95 CKIMINAL -LAy^'— Coining. victed, the uttering and the possession being both joint. Mex v. Skerritt, 2 C. & P. i27. Where one of two persons in company utters counterfeit coin, and other counterfeit coin is found on the other person, they are jointly guilty of the aggravated offence under 2 & 3 Will. 4, c. 34, s. 7; if acting in concert, and both Icnowing of the possession. B^q. v. Gerrish, 2 M. & Rob. 219. Where a man and woman were indicted for uttering a bad shilling to B., and having in their possession another bad shilling at the time, and the uttering was by the woman alone in the absence of the man : — Held, that the man was not liable to be convicted with the actual utterer, although proved to be the associate of the woman on the day of uttering, and to have had other bad money about him for the purpose of uttering ; and, secondly, that the woman could not be con- victed of the second offence of having other bad money in her possession, on the evidence of her associating with a man not present at the utter- ing, but having large quantities of bad money about him for the purpose of uttering. Hcn v. Jilse, E. & R., C. C. 142. But see Beff. v. Green- wood, 5 Co3^, C. C. .521 ; 2 Den. C. C. 453. Indictment — Form of.] — In an indictment on 15 Geo. 2, c. 28, s. 3, it was not necessaiy to aver that the defendant was a common utterer of false money. Ren- v. Smith, 2 B. & P. 127. An indictment for knowingly uttering coun- terfeit coiuj twice on the same day, charged an uttering of a counterfeit half-crown, and that the defendant, on the same day, "one other piece of false and counterfeit (omitting the word ' coin '), resembling, and aijparently intended to resemble, and pass for a piece of the Queen's current silver coin, called a half- crown, unlawfully, &;c., did utter and put off to one S. A., the wife of W. G., Icnowing the same to be false and counterfeit : " — Held, that the omission of the word "coin" did not render the indictment bad, as the words " false and counter- feit" might be rejected as surplusage, and the indictment would then be, " one other piece re- sembling, and apparently intended to resemble, and pass for a piece of the Queen's current silver coin, called a half-crown." Reg. v. Juneg, 9 0. & P. 761. An indictment, charging that the prisoner, one piece of coim.terfeit coin, &c. " did utter and put off to A., knowing the same to be false and counterfeit," is good, whether the objection of uncertainty as to the time, &c., and in knowing, is taken before or after verdict. Reg. v. Pagt; 2 M. C. C. 219 ; 9 C. & P. 756. A count charging the prisoner with having counterfeit money in his possession at the time he uttered other counterfeit money, must contain a distinct averment of the fact of uttering. Itc.i: v. Kelly, 3 Esp. 28. An indictment on 15 Geo. 2, c. 28, for uttering bad money by the common trick called " ringing the changes," was good, although it did not state that it was uttered in payment as and for good and lawful money ; for the words of the statute were in the disjunctive, utter or tender in pay- ment. Rce V. Franks, 2 Leach, C. C. 644. Allegation of Scienter.] — An indictment for knowingly uttering counterfeit coin, charged that the prisoner " did utter and put off to one S. A., the wife of W. G., knowing the same to be 96 false and counterfeit :" — Held, that the allega- tion of the scienter was sufficient, and that the word " knowing " must be taken to apply to the prisoner, and not to " S. A. the wife of W. G.," who was the last antecedent ; and that the scienter must be taken to apply to the time of the uttering, although it was not stated to be " then and there." Reg. v. Jones, 9 C. & P. 761. An indictment for uttering counterfeit coiu, knowing it to be counterfeit (after a previous conviction), charged, that the prisoner did utter a counterfeit half-crown to B. H., knowing the same to be false and counterfeit : — Held, that the allegation of the scienter was sufficient, and that the word " knowing " must be talcen to apply to the prisoner, and not to E. H., who was the last antecedent, and that the scienter must be taken to apply to the time of the uttering, although it was not stated to be " then and there." Reg. V. Page, 9 C. & P. 756 ; 2 M. C. C. 219. Question for Jury — Whether Intention to Pass as good Coin.] — On an indictment under 2 & 3 Will. 4, 0. 34, s. 7, for uttering a piece of false and counterfeit coin, apparently intended to re- semble and pass, for a piece of the Queen's good and legal current coin, it is a question for the juiy whether the coin produced supported the indictment, and if they should be of opinion that the coin was not intended by the maker to pass as a good coin, they should acquit. Reg. v. Byrne, 6 Cox, C. C. 475. Evidence of Current Coin.] — A person was indicted for uttering a counterfeit coin, intended to resemble and pass for a gi'oat. AU the witnesses for the prosecution, except the inspec- tor of coin for the mint, called it a fourpenny- piece. The inspector called it a groat, and said he believed that it had had that name from the earliest period. He added, that the original groat of Edward the Thirf's reign was larger and heavier than the coin in question ; and that, in the Queen's proclamation, these coins were called both groats and fourpenny-pieces. The procla- mation was not produced, and the inscription on the coin itself was fourpence : — Held, that if the juiy, fi'om their own knowledge of the English language, without considering any evidence at all, were of opinion that a groat and fourpenny- piece were the same, the prisoner was rightly in- dicted, and might be convicted. Reg. v, Connell, 1 C. & K. 190. A person was indicted for uttering a medal re- sembling in size, figure, and colour one of the Queen's current gold coins, called a half-sovereign. At the trial the medal was produced by a wit- ness, who stated that it was the same in diameter as a half-sovereign, and somewhat similar in colour ; that on the obverse was the head of the Queen similar to that on a half-sovereign, but that the legend was different ; when about to describe the reverse, the coin accidentally dropped and was lost. The medal had not been she-mi to the jury, and secondary evidence was not given of what was on the reverse : — Held, that there was evidence to go to the jury that the medal resembled in figure a current coin. Beg.y. Rithin- son, L. & C. 604 ; 10 Cox, C. C. 107 ; 34 L. J., M. C. 176 ; 11 Jur., N. S. 452 ; 12 L. T. .501 ; 13 W. E. 727. Evidence of Guilty Knowledge.]— On an in- dictment for uttering counterfeit coin, to prove Digitized by Microsoft® 97 CRIMINAL I^AW— Coining. 98 a guilty knowledge, evidence may bo given of a subsequent uttering- by the prisoner of counter- feit coin of a different denomination to tliat menitioned in the indictment. The difference in the denomination of the coin goes to the weight of evidence, but not to its admissibility. Meg. v. jPorstcr, Dears. C. C. 456 ; 6 Cox, C. C. 521 ; 3 C. L. R. 681 ; 24 L. J., M. C. 134; 1 Jur., N. S. 407. Sentence.] — On a conviction of two separate offences of uttering counteiieit coin, in two counts, one judgment for two years' imprison- ment, under 2 & 3 Will. 4, c. 34, s. 7, was bad. nex V. RoUnson, 1 M. C. C. 413. 3. COUNTEBPBITING- AND UTTBEING COPPBB Coin. Counterfeiting.]— By 24 & 25 Vict. c. 99, s. 14, lohosoetei' slmll falsely irialie or cumhterfeit anij coin, resembling or apparently, intended to re- semble' or pass for ung of the Queen's current copper coin ; and lolwsoccer, without lawful au- tlioritg or excuse (tli« proof wlicreof shall lie on the party accused'), shall Itnoioiiigly maJte or ■moid, or begin to jyroceed to make or mend, or buy or sell, or have in his custody or possession, any instriimient, tool, or engine adapted and in- tended for the counterfeiting any of the Queen's current copper coin ; or shall buy, soil, receirc, pay, or jnit off, or offer to buy, sell, receive,pay, or put off' any false or counterfeit coin, resem- bling or apparently inteiidedto resemble or pass for any of the Queen's current copper coin, at or for a lower rate or value tlian tlw same imports, or icas apparently intended to import, shall, in England and Ireland , be guilty of felony, and in Scotland of a high crime and offence, and, being convicted tltereof, shall be liable, at the discretion of the court, to be hept injyenal servi- tude for any term not e.ccecding seven years, and not less tlum fice years (27 & 28 Vict. c. 47), or to be i m prisoned for any term not exceeding two years, with or without hard labour, and with or without solitary eonjinement. (^Foriner provi- sion, 2 & 3 Will. 4, c. 34, s. 12.) Uttering.] — By s. 15, ichosoei-cr shall tender, utter or put off any false or counterfeit ccin, resembling or apparently intended to resemble or pass for any of the Queen's eurrent copper coin, Imowing tlui same to be false or counterfeit, or shall liavc in his custody or possession three or more pieces of false or counterfeit coin, resem- bling or appare7itly intended to resemble or pass for any of the Queen's current copper coin, hnowing the same to be false or counterfeit, and with intent to utter or put off the same or any of tliem., shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and being conricted thereof shall be liable, at the discretimi of the court, to be i mprisoned for any term not exceeding one year, with or without hard labour, and with or icith- oiit solitary conj Before these Enactments.] — Uttering or ten- dering in payment counterfeit copper money was not an indictable offence. Sea; v. Oirwan, 1 East, P. C. 182. 4. COUNTBEPBITING AND UTTEHING FOREIGN Coin. Counterfeiting Bold and Silver Coin.]— By 24 & 25 Vict. c. 99, s. 18, whosoever shall make or counterfeit any hind of coin, not being the Queen's current gold or silver coin, but resembling or apparently intended to resemble or pass for any gold or silver co-in of any foreign prince, state, or country, sliall, in England and Irelaiid, be guilty of felony, and in Scotland of a high crime and offence, and, being cmmieted thcrevf, shall be liable, at the discretion of the court, to be hcjit in penal servitude for any term iiot exceeding seven years, and not less thanffre years (27 & 28 Viet, c. 47), or to be imprisoned for any term not ex- ceeding two years, with or without liard labour, and w ith o r without solitary confinement. (^Former provision, 37 Geo. 3, c. 126, s. 2.)' ■ Bringing into England.] — By s. 19, who- soever, without lawful authority or excuse {the proof whereof shall lie on the paHy accused), sliall bring or receive into the United Kingdom any such false or counterfeit coin, resembling or apparently intended to resemble or pass for any gold or silver coin of any foreign prince, state, or country, knowing the same to be false or counterfeit, sliall, in England and Ireland, be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be hept inpenal servitude for amy. term not exceed- ing seven years, and not less than five years (27 A; 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, tvitli or without hard labour, aiul with or without solitary con- jinement. {Former provision, 37 Geo. 3. c. 126. s. 3.) Uttering.] — By s. 20, whosoever shall tender, utter, or put off' any suchfalse or counter- feit coin, resemhling or apparently intended to resemble or jiass for any gold or .silver coin of any foreign prince, state, or country, hnom'mg the saute to be false or counterfeit, shall, in England and Ireland, be guilty of a mis- demeanor, and being convicted thereof sliall be liable, at the discretion of the court, to be im- prisoned for any term not exceeding six months, with or loithout hard labour, {Former provision, 37 Geo. 3, o. 126, s. 4.) Second and Third Offences.] — By s. 21, whosoever, having been so convicted as in the last precediwj section mentioned, shall afterwards commit the like off'ence of tendering, uttering, or putting off any such false or counterfeit coin as aforesaid, knowing the same to be false or counterfeit, sliall, in England and Ireland, be guilty of a misdemmnor, and, being convicted thereof, sliall be liable, at the discretion of the court, to be imprisoiied for any term not exceed- ing two years, ivith or tvithout hard labour^ and with or without solitary confinement ; and who- soever, having been so convicted erf a second off'ence, shall afterwards commit the like offence of tendering, uttering, or putting off any such false or counterfeit coin as aforesaid, hnowinf/ the same to be false or counterfeit, shall, 'in England and Ireland, be guilty of felony, and ill Scotland of a high crime and offence, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal Her- vitxidc for life, or fur any term not less than Digitized by Microsoft® 99 OEIMINAL I.A\\— Coining. Jh-e years (27 & 28 Viot. c. 47); or to be iiii- j/nsonei/ for any term not eduredhig two years; with or without hard labour, and with or loithout solitary confinement. Counterfeiting Copper Coin.J— By s. 22, who- soever shall falsely make or counterfeit any hind of coin, not being the Quern's current coin, but TcsemUing or apparently intended to resemble or pass for any copper coin, or any other coin made of any metal or mijvd metals of less ralue than the sih-er coin of any foreign pri^ice, state, or country, shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and, being convicted thereof shall be liable, at the discretion of the court, for the first offence, to be imprisoned for any term not exceeding one year, mid for the second offence, to be hept in penal servitude for any term not exceeding savcn years, ami not less than five years (27 & 28. Vict. c. 47), or to be imprisoned for any term not cjecceding two years, w-ith or without hard labour, and iv'ith or without solitary confinement. (Former iirocision, 43 Geo. 3, c. 139, s. 3.) Unlawful Possession.]— By s. 23, whosoever, teithout lawful authority or cccuse (the proof whereof shall lie on the party accused^, shall hare in his custody or possession any greater number of pieces than fire pieces of false or counterfeit coin, resembling or apparently iii- tended to resemble or pass for any gold or silver foin ofdny foreign prince, state, or country, or any such cojjper or other coin as in the last pre- ceding seetion mentioned, shall, on conviction thereof before any justice of the peace, forfeit and lose all such false and counterfeit coin, lohich shall be cut in pieces and destroyed by order of such justice, and shall for every such offence forfeit and pay any snm of money not exceeding 40«., nor less than Vis. for every such p-ieee of false and counterfeit coin which shall be found in the custody or possession of such person, one moiety to the informer, and the other moiety to tlie poor of the parish where such offe)u-e shall be committed ; and in case any aueh penalty slmll not be foHhwith paid,it shall he lawful for any such justice to commit the person who shall have been adjudged to pay the .arty accused), shall buy, sell, receive, l^ay, orjiut off, or offer to buy, sell, receive, ])ay, or put off, any false Or Digitized by Microsoft® ^}}^/t CEIMINAL IjAW—Coinmg. land, high Icoin, rcKcmUing or aipparentlij iii- 'semMe or pass for any of the Qunm'x ' or .lil-ccr coin at or for a lower rate an the same imports or loas apparently lea to import, shall, in England and Ire- he guilty of felony, and in Seotlaiid of a crime and offence, and Icing conricted thereof shall be liable, at the discretion of the court, to be hept inpenal scrxittide for life, or for any term, not less than Jive years (27 &. 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, loith or without hard labour, and with or icithout solitary confine- ment. Indictment — Averment as to Price.] — And in any indictment for any such offence it shall he snjjicient to allege that the party accused did buy, sell, receive,pay, or piiit off, or did offer to buy, sell, rcceire, pay, or put off, the false or counterfeit coin at or for a loicer rate or ralne than the same imports or was apparently in- tendcd to import, icithont alleging at or for ichat rate, price or ralne the same was bought, sold, rece/Ted,2>aid, or put off, or offered to be bought, sold, receired, paid, or pnt off'. (^Former provisions, 8 & 9 Will. 3, o. 26, s. 6, and 2 & 3 Will, i, c. 34, s. 6.) An indictment on 8 i: 9 "Will. 3, c. 26, s. B, stated that five counterfeit shillings were paid and put ofi for two shillings ; the proof was that five had shillings were sold for half-a-crown : — Held, that the variance was fatal, as it was a contract which must be correctly proved as laid. B,e:c V. Joyce, Car. C. L. 184. In an indictment for {jutting off counterfeit money at a lower rate than its denomination imports, it was alleged that the prisoner put off a counterfeit sovereign and three counterfeit shillings for the sum of five shillings ; the proof was, that the prisoner said he would let the wit- ness have a bad sovereign at four shillings, and three bad shillings at one shilling, and the wit- ness paid for them with two good half-crowns : — Held, that this proof supported the allegation. Hex V. Hodges, 3 C. & P. 410. " Not Cut in Pieces."] — An indictment on 8 & 9 Will. 3, c. 26, s. 6, for putting off bad money, must have stated that it was " not cut in pieces." Hex v. Palmer, 1 Leach, C. C. 102. Names of Persons.] — In an Indictment for putting off counterfeit money, the names of the persons to whom it was put off ought to be set out. Anon., 1 East, P. C. 180. Putting off, what is.] — Where, on a bargain 'for the sale of counterfeit money, the price had been agi'eed upon and the prisoner had produced the coin, but the complete transfer was prevented by the appearance of the police officers : — Held, that it did not amount to a putting off within 8 & 9 Will. 3, c. 26. Ile.i- V. Wooldridgc, 1 Leach, C. C. 307 ; 1 East, P. C. 169. 8. Exchanging Coin at higher than its Value. The exchanging guineas for bank-notes, taking the guineas in such exchange at a higher value than they were current for by the king's procla- mation, was not an offence against 5 & 6 Edw. 6, c. 19. {Repealed by .56 Goo. 3, c. 68.) Be Tonge, 14 East, 402. 102 Ilex V. 9. Importing or Exporting Counterfeit Coin. Importing.]— By 24 & 25 Vict. u. 99, s. 7, wlio- soever, without lawful authority or excuse {the proof whereof shall lie on the j'^rty accused), shall import or receire i?ito the United Kingdom,, ■ from, beyond the seas, any fqlse or counterfeit coin, resembling or apparently intended to re- semble or jiass for any of the Queen's current gold or silfcr coin, knowing the same to be false or counterfeit, shall, in JSngland and Ireland, be guilty of felony, .and in Scotland of a high crime and offence, and being conricted thereof shall be liable, at the discretion of the court, to be hept inpenal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to'be imprisoned for any term not cvceeding two yean, with. or withouthard labour,and with vrwithout solitary confinement. (Former provision, 2 & 3' Will. 4, c. 34,8.6.) Exporting. ] — By s. 8, whosoever, without law- ful authority or excuse ifhe proof wlu-rcof shall lie on the party accused), shall export, or put on hoard any ship, vessel, or boat for the purpose of being exported from the United Kingdom, any. false or counterfeit coin, resembling or appa- rently intended to resemble or pass for any of the Queen's current coin, hnowing the same to be false or counterfeit, shall, in England and Ire- land, be guilty of a misdemeanor, and being con- victed thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, ivith or without hard labour, and loith or without solita ry confinement. 10, DEFACING Gold, Silver or Copper Coin. Statute.]— By 24 & 25 Vict. c. 99, s. 16, who- soever shall deface any of the Queen's current gold, silver, or copper coin, by stamping thereon any names or words, lohether such coin shall or shall not be thereby diminished or lightened, shdll,in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and 'offence, and, being convicted thereof, shall be liable, at the discretion of the court, to be im- prisoned for any term not exceeding one year, with or icithotit hard labour. {Farmer 2>i'i>' vision, 16 & 17 Vict. c. 102, s. 1.) By s. 17, no tender of payment in money made in any gold, silver, or copper coin so defaced by stamping as in the last preceding section men- tioned shall be allowed to be a legal tender ; and wlwsoever shall tender, utter or pint off. any coin so defaced shall, on conviction thereof before two justices, be liable to forfeit and pay any sum. not exceeding ids. : provided that it shall not be lawful for any j'crson to proceed for any such last-mentioned 2>enalty icithout the consent, in England or Ireland, of her Majesty's attorney- general for England or Ireland respectively, or in Scotland of the lord advocate. (^Former pro- vision, 16 & 17 Vict. c. 102, s. 2.) 11. Testing Genuineness of Gold or Silver Coin. Statute.]— By 24 & 25 Vict. c. 99, s. 26, wliere Digitized by Microsoft® 103 OEIMINAL LAW— Coming/, ally coin shall bo tcmlcix-d an the Queen's cur iriit fjold or silver coin to any iicrson who shall sus- pect the same to be diminishcil nthcrioise than hy rmsotiiMc wearing, or to be cmmterfeit, it ghall be lawful for such person to etd, break, betul, or Aeface siich coin, and if any coin so cut, brohen, hent, or defaced shall appear to be diiiiiniskrd otherwise than by reasonable loearing, or to be counterfeit, the person tendering the same shall bear the loss thereof ; but if the same shall be of due loeight, and shall appear to be laioftil coin, the person entthig, brcahing, bending, or defiiriiig the same is liereby rerpiired tu reeeixe the same tit tlw rate it was coined for ; and if any dispute .ihall arise whetlier the coin so cut, brohen, bent, or defaced be diminished in maymer aforesaid, or counterfeit, it shall be heard and finally de- termined in a summary ■ manner by any jnstiee if tlw peace, who is empoicered to exatnine upon oath as well the parties as any other person, in order to the decision of such disunite ; and- the tellers at the receipt of her 3/njestg's Mrehe//uer. and their deputies and clcrh-i, and the reeeirers- r/eucral of every branch of her Miijesti/s recenue. are liereby required to cut, breah, or deface, or eanse to be cut, brohen, or defaced, every piece of counterfeit or unlawfully diminished gold or silver coin which sliall be tendered to them, in payment of any part of her Majesty's revenue. {Former provision. 2 & 3 Will. 4, c. 34, s. 13.) 12. IMPLBMESTS FOR COINING. Statute.]— By 24 & 25 Vicf. c. 99, s. 24, who- soever, without lawful autlwrity or excuse (the proof loliereof shall lie on the party accused'), shall hnoioingly make or mead, or begin or pro- ceed to malic or mend, or buy or sell, or ha've in his custody or possession, any punchenn, cennter puncheon, matri.v. stamp, d ie, pattern, or mould in or upon which tlwre sliall be made or im- pressed, or which will malic or impress, or which- sliall be adapted and intended to malie or im- press, the figure, stanxp, or apparent resemblance of both or eitlicr of the sides of any of the Queen's current gold or silver coin, or of any coin of any foreign prince, state, or country, or any part or parts of both or either of such sides ; or shall make or mend, or begin or proceed to malie or mend, or shall buy or sell, or have inliis ■custody or possession, any edger, edging, or other tool, collar, instrument, or engine adapted and intended for the marking of coin round the edges with letters, grainiiu/s, or other marks or figures apparently resemMing those on the edges of any such coin as in this section aforesaid, knowbuj the same to be so adapted and intended as aforesaid ; or shall make or mend, or begin or proceed to make or mend, or sliall buy or sell, or have in his oustody or possession, any press for coinage, or any cutting engine for cutting by force of a screw or of any other contrivance, round blanks out of gold, silver, or otlier metal or mixture of metals, or any other machine, knoioing such press to be a press for coinage, or knoioing such engine or machine to hare been nsed, or to be intended to be used, for or in order to the false making or counteifeiting of any such coin as in this section aforesaid, shall, in Eng- land and Ireland, be guilty of felony, and, being convicted thereof, shall be liable, at the ■discretion of the eouH, to be kept inpcnul servi- tude for life, or for any term not less thaufvc years (27 & 28 Viot. c. 47), or to be imprison for any term not r.eeeeding two years, to ' without hard labour and with or luithout sol. confinement. (Former provisions, 2 & 3 Wif 0. 34, s. 10, and 8 & 9' Will. 3, o. 26.) Machine, what is.] — A galvanic batteiy is a machine within the meaning of the 24 & 2.5 Vict. c. 99, s. 24. Eeg. v. Grover, 9 Cox, C. C. 282. Press.] — ^A press for coinage was a tool or an in- strument irithinthat branch of the.8 & 9 Will. 3, c. 26, which made it treason to have the same knowingly in the party's custody. Hex v. Bell, 1 East, P. C. 169. Puncheon.] — So having knowingly in posses- sion a puncheon for the purpose of coining, though that alone, without the counter puncheon, would not make the figure. liex v. Ridgeley, 1 East, P. C. 171 ; 1 Leach, C. C. 189. Collar.] — So a collar of iron, for gi-aining the edges of counterfeit money, was an instrument, although it was to be used in a coining pl'css. Hex V. Moore, 2 C. & P. 235 ; 1 M. C. C, 122. Mould.] — So a mould of lead, having the stamp of one side of a shilling, was a tool or an instru- ment. Bex r. Lennard, 2 W. Bl. 807 ; 1 Leach, C. C. 90 ; 1 East, P. C. 170. Misdemeanor at Common Law.] — It is a mis- demeanor at common law to have tools for coining in possession with intent to use them. Rex V. Sutton, 1 Bast, P. C. 172. Being in possession of Dies.] — A., with the in- tent of coining counterfeit half dollars of Peru, procured dies in this country for stamping and imitating such coin. He was apprehended before he had obtained the metal and chemical prepara- tions necessary for making counterfeit coin : — Held, that the procuring of dies was an act in furtherance of the criminal purpose, sufficiently proximate to the offence intended, and sufficiently evidencing the criminal intent, to support an in- dictment founded on it for a misdemeanor, although the same facts would not have sup- ported an indictment for attempting to make counterfeit coin. Reg. v. Roberts, Dears. C. C. 539 ; 7 Cox, C. C. 39 ; 25 L. J., M. C. 17 ; 1 Jur., N. S. 1094. " Indictment — Form of.] — An. indictment that the prisoner feloniously had in his possession a mould, " upon which mould were made and im- pressed the figure and apparent resemblance " of the obveMe side of a sixpence, is bad, as not sufficiently showing that the impression was on the mould at the time when the prisoner had it in his possession ; but a fresh indictment, with the words " then and there " before the words " made and impressed " is ^ood. Reg. v. Rich- mond, 1 C. & K. 240 ; 1 Cox, C. C. 9. Where a coining mould is made aud impressed to resemble the obverse of a coin, which is partly defaced by wear, the indictment should be in the form above mentioned, as the words of the 2 & 3 Will. 4, c. 34, s. 10, as to moulds to resemble part of the obverse of a coin, relate to cases where several moulds jrat together would make the obverse of the coin. lb. Digitized by Microsoft® 105 CRIMINAL 'Lk^\— Coining. loe On an indictment on 2 & 3 Will. 4, c. 34, s. 10, for the felony of making a mould " intended to make and impress the figure and apparent re- semblance of the obverse side " of a shilling, it was sufficient to prove that the prisoner made the mould and a part of the impression, though he had not completed the entire impression. lii'X V. Foster, 7 C. & P. 49.-). To convict a prisoner under the 2 & 3 Will. 4, c. 34, s. 10, of the felony of having in his posses- sion a mould, upon which was impressed the re- semblance or the obverse side of a shilling, the jury must be satisfied that, at the time he had it in his possession, the whole of the obverse side of the shilling was impressed on the mould : a part is not sufficient. Ih. On an indictment for having in possession a die made of iron and steel, proof of a die made of other material, or of both, will be sufficient ; for it is immaterial to the offence of what the die is made. Bex v. Oxford, K. & E. C. C. 382. Upon an indictment against a partyunder 2 & 3 Will. 4, c. 34, s. 10, for having in his possession a mould, upon which was made and impressed the figure, on one of the sides, of a shilling, it was not sufficient to shew that the prisoner had in his possession a mould, on one side of which there was a perfect impression, but without a channel through which the metal ran, unless it could also bo shewn that coin could be made by it. lieg. V. jrarMnian. 1 Cox, C. G. 41. An indictment under 24 & 2.5 Vict. c. 99, s. 24, alleged that the prisoner " knowingly and with- out lawful excuse feloniously " had in his posses- sion dies impressed with the resemblance of the sides of a sovereign. The prisoner ordered dies, impressed with the resemblance of the sides of a s'lvereign, of the maker. The maker gave infor- mation to the police, who communicated with the authorities of the Mint. The latter authori- ties, through the police, gave the maker pei-mis- sion to give them to the prisoner. He did so, and they were found in his possession : — Held, first, that it was necessary in the indictment to negative lawful authority or excuse, notwith- standing that the burden of proof lay upon the accused. Her/, v. Harvey, 1 L. E.. C. G. 284 ; 40 L. J., M. C. 63 ; 23 L.'T. 856 ; 19 W. E. 446 ; H Cox, C. C. 662. Held, secondly, that the woj-d " excuse " in- cludes " authority," and therefore the indictment was good. lb. Held, thirdly, that there was no evidence of lawful authority or excuse. Ih. Guilty Knowledge.] — Held, fourthly, that the prisoner, being knowingly in possession of the dies, had a sufficient guilty knowledge to consti- tute a felony, whatever his intention as to their use might be. lb. Evidence to connect Mould with Coin passed,] — The prisoner was indicted for knowingly and without lawful excuse having in his custody and l)OSsession a mould on which were impressed the figure and apparent resemblance of the obverse side of a half-crown. The mould was found in the house of the prisoner, who had previously passed a bad half-crown ; but there was no evi- dence to shew that the half-crown had been in the mould : — Held, that there was sufficient evi- dence to go to the jury. Beg. v. Weelis, L. & C. 18 ; 8 Cox, C. C. 4.55 ; .SO L. J.. M. C. 141 ; 7 Jur., N. S. 472 ; 4 L. T., 373 ; 9 W. E. 353. 13. Unlawpcl Possession of Base Coin-, Filings, oe Clippings. Statute. ] — By 24 & 25 Vict. u. 99, s. 5, wkosoerev sltall mtlaiefully hare in his custody «r 2>osse.i- sionany inings or clippings, or any gold or silrer bullion, or any gold or silrer in dust, solution, or otherwise, which shall have been produced or obtained by impairing, diminishing, or lighten- ing any of the Queen's current gold or silrer coin, hnou'ing the same to hare been so prodiiced or obtained, shall, in Jikgland and Ireland, be gieilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in pennl servitude for any term not ex- ceeding seven years, and not less than fire years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding tiro years, with or without hard labour, and irith or without solitary con- finement. By s, 11, whosoerer shall hare in his custody or'possession three or more pieces of false or counterfeit coin, resembling or apparently in- tended to resemble or pass fo r any if the Queen's current gold or silrer coin, hnoiring the same to be false or counterfeit, and leitJi intent to utter or put off the samie or any of them, shall, in Eng- land and Ireland, be guilty of a misdemeanor, and, being conrietcd thereof, shall be liable, at the discretion of the court, to be hept in penal ■lerritude for the term of fire years, or to be im- prisniiedfor any term not exceedinq tiro years (27 & 28 Vict.' c. 47), with or without hard liihoiir, and with or without solitary confine- ment. (^Former prorision. 2 & 3 Will. 4, c. 34, s. 8.) Possession by Agent.] — In order to convict a ' person charged on 2 & 3 Will. 4, c. 34, s. 8, with having in his possession more than three pieces of counterfeit coin, with intent to utter them, it was not necessary that the possession should be an individual possession, but it was enough if the coin was in the possession of the person so- charged, or his immediate agent. Beg. v. Tf '7'/- liams, Car. & M. 259. See also 24 & 23 Vict. c. 99, s. 1, ante, col. 91. Joint Possession.] — When pieces of counterfeit coin are found on one of two persons, acting in gTiilty concert, and both knowing of the posses- sion, both are guilty. Beg. v. Bogers, 2 M. C. C. 85 ; 2 Lewin, C. C. 119, 297. Evidence of Guilty Knowledge.]— Having a large quantity of counterfeit coin in possession, many of each sort being of the same date, and made in the same mould, and each piece being wrapped in a sepai'ate piece of paper, and the whole distributed in different pockets of the- dress, is some evidence that the possessor knew that the coin was counterfeit, and intended tO' utter it. Beg. v. Jarris. Deai-s. C. C. 552 ; 7 Cox, C. 0. 532 ; 25 L. J., M. C. 30 ; 1 Jur., N. S.. 1114. Possession of bad money five days after, may be given in evidence to shew guilty knowledge. Harrison's case, 2 Lewin, C. C. 118. Having in possession a large quantity of base- coin is evidence of having procured it with intent to litter it, unless there are other circumstances Digitized by Microsoft® 107 CEIMINAL I^AW—Cohting. 108 to induce a belief that the defendant was the maker. Jteas v. Fuller, R. & E. C. C. 308. Offences under Old Statutes and Common Law.] — Having counterfeit silver in possession, with intent to utter it as good, vs'as no offence before 2 & 3 Will. 4, c. 3+, s. 8. Iti:v v. Ilcatli, E. & E. 0. C. 184 ; 8. P., lle.v v. Stewart, E. & E. 0. C. 288. Procuring base coin with intent to utter it as iiood, is a misdemeanor. lt<;v v. Fuller, R. & E. C. C. 308. Having the possession of counterfeit money, with intention to pay it away as for good money, was an indictable offence at common law. llc.v V. Parltcr, 1 Leach, C. C. 41. 14. When Offence Complete. Statute.]— By 24 & 25 Vict. c. 99, s. 30, erenj offence of falsely malthuj or connterfeiting iniy ro/ii, or of iiiying, xellini), I'rei'iring, jjaying, fcndi'ring, littering or putting off, or of offering to hiiy, sell, i-ecrire, pay, litter or piit off, any false or connterfeit eoin, against tlie provisions of this act, shall le deemed to he eomplete. although the coin so made or einmferfeifed, or hotight, sold, reeeired, paid, tendered, littered o put off, or offered to he hought, sold, reeeired, paid, uttered or pnt off, shall not he in a fit state to he uttered, or tlw counterfeiting tliereof shall not he finished or perfected . Forging the impression of money on an irre- o'lilar piece of metal, without finishing it, so as to make it current, was an incomplete crime, and not high treason. Ite.i- v. Varley, 2 "W. Bl. 682 ; 1 Leach, C. C. 71, 253 ; 1 East, P. C. 164. 15. Conveying Coining. Tools oe Coin fkom THE Mint without Authority. Statute.]— By 24 & 25 Vict. c. 99, s. 25, lolio- siiecer, without lauful authority or crcuse {the proof tohereof shall lie im the party accused), shall knoioingly con vey out of any of her Jtajesty's mints any puncheon, counter puncheon, matri.r. stamp, die, pattern, mould, cdger, edging or other tool, collar, instrument, press or engine used or employed in or abmit the coining of coin, or any vseful part of any of tiie sereral i'crimis offence, purporting to be signed by the clerh of the court, or other offieer having or purporting to hare the eu.itody of the records of the court where the off'ender was first convicted, or by tlie deputy of such clerh or officer, slmll, upon proof of the identity of the person of the off'ender, be svff- cient evidence ofthepretions conviction, without proof of the signature or official character or authority of the person appearing to have signed the same, or of his custody or right to the custody of the records of the cmirt ; and for every .mch certificate a fee of ^s. 8d., and no more, shall be demanded or tahen ; Arraignment and Trial.] — And theproceedings upon any indictment for committing any offence after a previous concictlon or convictions shall be as follows ; that is to say, the offender shall, in tlie first instance, be arraigned upon so much only of the indictment as charges tlte subsequent offence ; and if he plead not guilty, or if tlie court order ii plea of not guilty to be entered on his behalf, tlie jury shall be charged, in the first instance, to inguirc concerning such snb.Kc- /j/uent offence only ; and if they find him guilty, or if on arraignment lie plead guilty, he shall tJu'n, and not before, be ashed wliether he had been preciously conrieted, as alleged in the indictment ; and if he ansii.vr that he had been so previou.ily convicted, the court may proceed to sentence him accordingly ; but if he deny that he had been so previously convicted, or stand mute of malice, or urill not answer directly to such question, thr jury shall then be charged to inquire concerning such previous conviction or eonviefions ; and in such case it shall not be necessary to swear the jury again, but the oath already taken by them shall for all jyuiposes be deemed to e.vtend to .nieh last-mentioned in- quiry ; Evidence of Good Character.] — Prodded that if, uiwn the trial of any person for any s\ich sub- sccpient offence, such person shall give evidence of Ids good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the conviction of such, person for -the previous offence or offences before such verdict of guilty shall be returned, and the jury shall inquire concerning such previous coni'ietion or convic- Digitized by Microsoft® 109 CEIMINAL J^AyN— Coining. 110 tmut at the same tiinn that they inpiire conceni- hiy such subsequent offenei: Previous Conviction as Proof of Guilty Know- ledge.] — On an indictment for uttering a counterfeit coin after a previous conviction, such previous conviction for uttering false coin can- not be put in evidence for the purpose of proving guilty knowledge. Eeg. v. Goodwin, 10 Cox, C. C. 534. Must not be Inquired into.] — Upon the trial of an indictment for the felony of having committed a misdemeanor within either of sections 9, 10 or 11 of 24 & 25 Viet. c. 99, relat- ing to the unlawful possession and uttering of countei-feit coin after a previous conviction for a misdemeanor within those sections : the pri- soner must be arraigned upon the subsequent ofEence, and evidence respecting it must first be submitted to the jury, and the previous convic- tion must not be inquired into until after the verdict on the charge of the subsequent ofEence. Rei]. V. Martin, 1 L. B., C. C. 214 ; 39 L. J., M. C. 31 ; 21 L. T. 469 ; 18 W. K. 72. Previous Conviction Negatived.] — A man was indicted under 24 & 25 Vict. c. 99, s. 12, for the felony of uttering counterfeit coin after a pre- vious conviction for a like ofEence. The jury found him guilty of the uttering, but negatived the previous conviction : — Held, that he could not be convicted of the misdemeanor of uttering. Reg. V. Thomas, 2 L. E., C. C. 141 ; 44 L. J., M. ■ C. 42 ; 31 L. T. 849 ; 23 W. R. 344. 18. Validity op Convictions and Commit- ments. Statute.]— By 24 & 25 Vict. c. 99, s. 32, no ciniclction for any iiffeuee punishahle on sum- mary emimction under this act shall be quashed for leant of form, or be remnred by certiorari into any of her Majesty's superior courts of record ; and no warrant of commitment shall be held void by reason of any defect tlicreln, pro- ridcd it be therein alleged that the party has been convicted, and there be a valid eoncietion to sustain the same. 19. PowEE TO Seize Cotjntehfeit Coin and Coining Tools. (24 4- 25 Viet. u. 99, s. 27.) CFormer procisions, 2 & 3 Will. 4, c. 34, s. 14, and 37 Geo. 3, c. 126, s. 7, and 43 Geo. 3, c. 139, s. 7.) 20. Apprehension op Offenders. Statute.]— By 24 & 25 Vict. c. 99, s. 31, it shall be laipful for any person lohatsoeccr to appre- hend any person loho shall be found committing any Indictable offence, or any high crime and offence, or crime and offence, against this act, and to convey or deliver him to some 2'eaee officer, constable or officer of police, in order to his being conveyed as -ioon as rea.vmably may be before a justice of the peace or some other 2>roper officer, to be dealt with according to law. 21. Prosecution and Trial of Offenders. Venue.]— By 24 & 25 Vict. c. 99, s. 28, wiiere any person sliaU tender, utter, or put off any false or counterfeit coin in one county or jurix- diction, and shall also tender, utter, or put off any other false or counterfeit coin in any other county orjurixdiction, eitlier on the day of such first-mentioned, tendering, uttering, or putting off', or ivithin the space often days next ensuing, or where two or more perg09is, acting in coticert in different emmties or jurisdictions, shall com- mit any offence against this act, every such offender may be dealt with, indicted, tried, and punished, and the offence laid and charged to liare been committed, in any one of the said counties or jurisdictions, in tiie same manner in all respects as if the offence hud been actually and wholly committed withiti sucii, one county or jurisdiction. On the High Seas.] — By s. 36, all indictable offences mentioned in this act, ivleieh shall be committed within tiie jurisdiction oftlie Admi- ralty of England or Ireland, shall be deemed to be offences oftlie same nature, and liable to the same jyunishmcnts, as if they had been committed upon the land in England or Ireland, and mag be dealt with, inquired of, tried, and determined in any county or place in England or Ireland in which the offender shall be apprelicnded or be in custody, in the same manlier in all respects as if the same had been actually committed in that county or place, and in any indictment for any sueli offence, or for being accessory to any such offence, tlie venue in tlw margin shall be the same as if sueli offence had been committed- in such county or jilace, and the offence itself shall be averred to have been committed ^' on the high seas,-" ^;;-(itvW«? that nothing herein cim- taiM'd shall alter or affect any of the latvs re- lating to the government of her jVaJesty's land or naval forces. On Summary Convictions.] — By s. 41, every offence hereby made 2>unishable on summa-nj conviction may be prosecuted in Enqland in the manner directed by 11 & 12 Vict. c. 43, and may be prosecuted in Ireland before two or more ju.^tices of the peace, or one metropolitan or sti- pendiary magistrate, in the manner directed by 14 & 15 Vict. c. 93, or in such other manner n'.< may he directed by any act that may be passed for like purposes ; and all provlnmis contained in the said acts shall be applicable to such pro- secutions in the same manner as if they were incorporated in this act : provided that nothinq m this act containrd shall in any manner alter or affect any enactment relating to procedure in the ease of any offence punishable on .^lummari/ conviction loithin the city of London or tlie metropolitan police district, or the recovery w application of any penalty or forfeiture for any such offence. 22. Punishment. (24 S,- 25 Vict. c. 99, s. 35.) 23. Costs of Prosecution. Statute.]— By 24 & 25 Vict. c. 99, s. 42, in all prosecutions for any offence agaimt this act in England which shall be conducted under the direction oftlie solicitors of her J/ajestii's Trea- sury, the court before which such offence shall be prosecuted or tried shall allow the c.rpenM-s of the prosecution in all respects as in cases of Digitized by Microsoft® Ill CRIMINAL J^K^N— Concealment of the Birth of Children. 112 felony; and in all p ruseoat ions/or any such offence in England which shall not be so conducted, it alkali be lawful for such court, in case a convic- tion sJtall take place, but not otJwrmise, to allow the expenses of the prosecution in like Manner ; and every order for the payment of such costs shall be made out, and the sum of money men- tioned therein paid and repaid, upon the same terms and in, the same manner in all respects as in eases of felony. 24. Actions against Persons acting in pubsuance of the statute. By 24 & 25 Vict. c. 99, s. 33, all actions and prosecutions to be commenced against any person for anything done in pursnaiice of this act shall, in England or Ireland, be laid and tried in the county where the fact was committed, and sliall, in England, Ireland, or Scotland, be commjenced within six months after the fact committed, and not otherwise ; and notice in writing of such action, and «f tlie cause tJwrcof, sliall be given to the defendant one month at least before the commencement of tlie action ; And in any such action brought in England or Ireland tlie defendant may plead the general issue, and give this act and the special matter in evidence, at any trial to be had tliereupon ; And no plaintiff shall reeo'ver in any such action if tender of sufficient amends shall liave been made before such action brought, or if a sufficient sum of money sliall lia/ve been paid into court after such action brought, by ■ or on behalf of the defendant, and if in England or Ireland a verdict sliall pass for the defendant, or the plaintiff sliall become nonsuit, or discon- tinue any such action after issue jointed, or if, upon demurrer or otherwise, judgm,ent shall be giveni against the plaintiff, in every such case tlie defendant shall recover his full costs as between attorney and client, and have the like remedy for the satne as any defendant lias by law in otlier eases ; and though a verdict shall be given for the plaintiff in any such action, such plaintiff shall not have costs against the defendant unless the judge before whom the trial shall be shall certify his approbation of the action. In order to entitle a party to a notice of action for a thing done in pursuance of this statute, it is enough that he honestly and bona fide believes he is acting in pursuance of the act, whether there is reasonable ground for such belief or not. Herman v. Senescliol, 13 C. B., N. S. 392 ; 32 L. J., C. P. 43 ; 6 L. T. 646 ; 11 W. K. 184. at, or after its birth, endeavour to conceal tin- birth thereof, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, ut the discretion of the court, to be imprisoned for any term not exeeiiding two years, with or ,without hard labour ; provided that if any person tried for the murder of any child shall be acguitted thereof, it shall be lawful for tin- jury by whose verdict such person shall be acquitted to find, in case it shall so appear in evidence, that the child had recently been born, and that such person did, by some secret dispo- sition of the dead body of such child, endeavour to conceal the birth thereof, and tliereu^wn the court may pass such sentence as if such person liad been convicted upon an indictment for the concealment of the birth. (^Former provision, 9 Geo. 4, c. 31, ss. 14, 31. Tlie 9 Geo. 4, c. 31, repealed 43 Geo. 3, c. 58.) XI. CONCEALMENT OF THE BIKTH OF CHILDREN. 1. Statute. 2. Cases Decided tliereon, 112. 3. Cases Decided before the passing of the Statute, 113. 4. Indictment, 115. 1. Statute. By 24 & 25 Vict. c. 100, s. 60, if any woman sliall be delivered of a child, every person who shall, by any secret disposition of tlie dead body of tlie said child, whether such child died before. 2. Cases Decided theeeon. What is a " Child."] — On an indictment for con- cealing the birth of her child, it appeared that the prisoner had been confined of a child which had not attained to seven months from concep- tion, it had never lived, and was slightly mal- formed ; it was left to the jury to say whether the oHspring had so far matured as to become a child, or was only a foetus, or the unformed subject of a premature miscarriage. Reg. v. Hewett, 4 F. & F. 1101. A foetus not bigger than a man's finger, but having the shape of a child, is a child within the statute. Reg. v. Colmer, 9 Cox, C. G. 506. Concealment of Birth, what is.] — A woman put the dead body of her child over a wall which was lour-and-a-half feet high, and dirided a yard from a field. The yard was at the back of a public-house, and entered from the street by a narrow passage. She did not live at the public-house, and must have carried the body from the street up the passage to the yard. The field was grazed by the cattle of a butcher, and the only entrance to it was through a gate leading from the butcher's own yard. There was no path through the field, and a pei-son in the field could only see the body in case they went up to the wall, close against which the body lay. A little girl, picking flowers in the field, found the body of the child, twenty yards from the gate. There was nothing on or over the body to conceal it : — Held, that there was evidence of a secret disposition of the dead body of the child, and a conviction for endeavouring to conceal the birth of the child, by secretly disposing of its dead body, was confirmed. Reg. v. Brown, 1 L. E., C. C. 244 ; 39 L. J., M. C. 94 ; 22 L. T. 484 ; 18 W. R. 792. Although the fact of the mother having placed the dead body of her newly-born child in an un- locked box is not of itself sufficient evidence of concealment of birth, yet all the attendant cir- cumstances of the case must be taken into con- sideration, in order to determine whether or not an offence has been committed. Reg. v. Cook, 21 L. T. 216. ,.,^ . ^ Leaving the dead body of a child m two boxes, closed, but not locked or fastened, one being placed inside the other in a bedroom, but in such a position as to attract the attention of those who daily resorted to the room, is not a Digitized by Microsoft® 113 CEIMINAL 'LAW— Concealment of the Birth of Children. 114 secret disposition of the body within 24 & 25 Vict. c. 100, s. 60. Reg. v. George, 11 Cox, C. C. On an indictment against the mother for con- cealment of the birth of her illegitimate child, it appeared that the body of the child was, found, three days after it was born, behind the door of the privy belonging to the house where .she lived as a domestic servant, in a tub covered over with a small cloth : — Held, that there was no conclusive evidence to warrant the jury in finding a verdict for concealment of the birth. Reg. V. Opie, 8 Cox, C. C. 332. To endeavour to conceal the birth of a child by a secret disposition of the dead body within 24 & 25 Vict. c. 100, s. 60, it must be by putting it into some place where it is not likely to be found. Placing it in an open box in the pri- soner's bedroom, and afterwards, on inquiiy by the medical man, informing him that the child was in the box, where it was found, is not a secret disposition. Meg. v. Sleej), 9 Cox, C. C. 559. A woman, delivered of a child born alive, endeavoured to conceal the birth by depositing the child, while alive, in the corner of a field, leaving the infant to die from exposui-e, which it did, and the dead body was afterwards found in the corner : — Held, that she could not be con- victed of concealing the birth of the child under 24 & 25 Vict. c. 100, s. 60, which relates to the secret disposition of the dead body of a child. Seg. V. May, 10 Cox, C. C. 448 ; 16 L. T. 362 ; 15 V,'. K. 751. Question for Judge and Jury.] — On an indict- ment for secretly disposing of the dead body of a bastard child, with intent to conceal its birth, it is a question of law for the judge, whether there has been a secret disposing of the body, i.e. a disposing of it in such a place as that the offence may have been committed (and a dust-bin is such a place) ; but it is for the jury to say whether there has been such a disposing of the body by the prisoner with such an intent, and the jury must be satisfied that the prisoner so disposed of it, or was a party to such a dis- position of it, with intent. Reg. v. Clarhe, 4 F. & F. 1040. Evidence — Dead Body must be Found.] In order to convict a woman of attempting to con- ceal the birth of her child a dead body must be found, and identified as that of the child of which she is alleged to have been delivered. Ren. V. Williams, 11 Cox, C. C. 684. Mere proof that a woman was delivered of a child, and allowed two others to take away its body, is insufficient to sustain an indictment against her for concealment of its birth. Rea V. Bate, 11 Cox, C. C. 686. On an indictment for endeavouring to conceal the birth of a child '-by a secret disposition of the dead body of the said child," the evidence for the prosecution having failed to prove the death of the child, the conviction was quashed Reg. V. Bell, 8 Ir. K., C. L. 541. 3. Cases Decided befoee the passing of THE Statute. What is a " Child."]— On a charge of conceal- ment of birth, it must appear that the child had gone such a time in its mother's womb that it would, in the ordinary course of thiugs, when born, have had a fair chance of life. Under seven months it may be fairly presumed that it would not be born alive. Reg. v. Berriman, 6 Cox, C. C. 388. Purpose of Old Statute.] — The concealment sought to be checked by 9 Geo. 4, c. 31, s. 14, was that which would keep the world at large in ignorance of the birth of a child. Reg. -v. Morris, 3 Cox, C. C. 489. While, therefore, the offence may on the one hand be committed, even though the pregnancy and delivery be made known to a confidant, so- on the other it is not an offence within the act if the endeavour to conceal proceed from a desire to escape individual observation or anger. Where, therefore, it appeared tiiat the body of a bastard ohUd would have been buried- by the prisoner in the churchyard, but for her fear to provoke her father, under the opei-ation of which she conveyed it secretly to a pond : — Held, that the case did not fall within the act. li. ■What is Evidence of Concealment of Birth.] — On an indictment against the mother for the murder of her illegitimate child, it appeared that the body of the child was found, a few hours after its birth, on the floor of an attic in a house where she lived as domestic servant, the head severed from the body, and both lying in sheets which had been removed from the bedroom below, which was occupied by the prisoner and her mistress, and where there was evidence to shew that the birth had taken place, but it was doubt- ful whether the severance of the head from the- body was effected there or in the attic : — Held, that there was no evidence to warrant the jury in finding a verdict for the statutable misdemeanor of endeavouring to conceal the birth. Reg. v.. Gaode, 6 Cox, C. C. 318. The mother of a child, of which she had been recently delivered, with the intention of con- cealing the dead body of the child fi'om a surgeon, placed it under a bolster on which she- laid her head. It was assumed that she meant to remove the body elsewhere when an oppor- tunity occurred: — Held, that she was properly convicted of endeavoui-ing to conceal the birth of the child by secretly disposing of the dead body, as it was not necessary in order to con- stitute that offence, under 9 Geo. 4, c. 31, s. 14, that the body should be put in a place which was- intended to be the place of its final deposit.. Reg. v. Perry, Deai-s. C. C. 471 ; 6 Cox, C. C. 531 ; 3 C. L. R. 691 ; 24 L. J., M. C. 137 ; 1 Jur., N. S. 408 ; S. P., Reg. v. Galdtliorp, Car. & M.. 385 ; 2 M. C. C. 244 ; Req. v. Famlmn, 1 Cox, C. C. 349. A woman was delivered of a child, whose dead body was found at her father's house in a bed among the feathers. There was no evidence tO' shew who placed it there, but it being proved that the woman had sent for a surgeon at the- time of her confinement, and had prepared child's clothes, the judge directed an acquittal on the charge of endeavouring to conceal the- birth. Rex v. Higley, i C. & P. 366. A prisoner found with the body still in her- possession, though about to dispose of it, could not be convicted. if«.' v. Snell, 2 M. & Eob.. 44. In a case of concealment of birth under 9 Geo.. 4, c. 81, s. 14, it was essential to the commissioiii Digitized by Microsoft® 115 CRIMINAL 'LAW— Conspiracy. 116 of the offence that the prisoner should have done some act of disposal of the body after the child was dead ; therefore, if the prisoner had gone to a privy for another purpose, and the child came from her unawares, and fell into the soil and was suffocated, she must be acquitted of this charge, notwithstanding her denial of the birth of the child. Reg. v. Turner, 8 C. & P. 755. S. P., Reg. V. Coxhead, 1 C. & K. 623. The act of throwing a bastard child down the privy, by its mother, was evidence of an endeavour to conceal the birth, within 43 Geo. 3, c. 58, s. 3. Rex v. Cornimll, K. & R. C. C. 337. Who may be Convicted of.] — On an indict- ment for child murder, no one but the mother can be convicted of a concealment of the birth of the child. Reg. v. Wright, 9 C. & P. 754. Aiding and Assisting.] — A woman was delivered of a child, which died soon after its birth ; she concurred with her paramour in endeavouring to conceal the birth, and he, in consequence of her persuasion, she remaining in bed, took the body, and buried it in a field, intending thereby to conceal the birth : — Held, that she could be convicted of endeavouring to conceal the birth, under 9 Geo. i, c. 31, s. 14, and he of counselling, aiding and abetting her in the offence. Reg. v. JSird, 2 C. & K. 817. If a woman is delivered of a child which is dead, and a man takes the body and secretly buries it, she is indictable for the concealment by secret burying, imder 9 Geo. 4, c. 31, s. 14, and he for aiding and abetting under s. 31, if there was a common purpose in both in thus endeavour- ing to conceal the birth of the child ; but the jury must be satisfied not only that she wished to conceal the birth, but was a party to the carrying that wish into effect by the secret burial by the hand of the man, in pursuance of a com- mon design between them. Reg. v. Skelton, 3 C. & K. 119. , , . , If the body of a dead child was secretly buned, or otherwise disposed of, by an accomplice of its mother, the accomplice acting as her agent in the matter, the mother of the child was punishable under 9 Geo. 4, c. 31, s. 14. Rex >. Douglas, 7 C. & P. 644, 4. Indictment. Farm of— Death of Child.]— An indictment for concealing the birth of a child must expressly allege that the child is dead. Rex v. DaA)is, 1 Russ. C. & M. 779. „, ,^ . An indictment on 9 Geo. 4, c. 31, s. 14, tor endeavouring to conceal the birth of a dead child, need not have stated whether the child died before, at, or after its birth. Reg. v. Cox- head, 1 C. & K. 623. Mode of disposing of Body.]— An indict- ment for concealing the birth of a child "by secretly disposing of [the dead body, under 9 Geo 4, c. 31, s. 14, without shewing the mode ot disposing of the dead body, was bad. Reg. v. Bmtnsell, 2 M. & Rob. 292. Endeavour to Conceal.]— An indictment for that offence, which, charged that the defen- dant did cast and throw the dead body of the Digitized by Microsoft® child into soil in a privy, " and did thereby then and there. unlawfully dispose of the dead body of the child, and endeavour to conceal the birth thereof," sufficiently charged the endeavour to conceal the birth, as the word "thereby" applied to the endeavour, as well as to the disposing of the dead body. Reg. v. Coxhead, 1 C. & K. 623. Where an indictment for concealing the birth of a child alleged the concealment to have been in and among a certain heap of carrots, and the evidence was that the body was laid upon the heap, but behind, so that it was hidden from the passers by by the upper part of the heap. Semble, that the evidence did not support the indictment. Reg. v. -, 6 Cox, C. C. 391. Amendment.] — Held, that the provisions of 14 & 15 Vict. c. 100, s. 1, empowering the judge to amend certain variances between the indictment and the evidence, did not extend to such an amendment as this. Ih. XII. CONSPIRACY. 1. What is. 2. For what Indictment lies. a. Generally, 116. 1}. Trade Combinations, 122. 3. Indictment. a. Who Indictable, 123. h. Form of, 123. 4. Particulars of Overt Acts, 128. 5. EHdence, 128. 6. Trial and Verdict, 135. 7. New Trial, 136. 1. What is. Definition — Injury to an Individual not amounting to a Crime.] — The term conspiracy is divisible into three heads : — 1st, where the end to be attained is in itself a crime ; 2nd, where the object is lawful, but the means to be re- sorted to are unlawful ; 3rd, where the object is to do an injury to a third party or a class, though if the wrong were inflicted by a single individual, it would be a wrong and not a crime. Reg. V. Pao-nell (No. 3), 14 Cox, C. C. 508. Consent — Intention prior to Agreement.] — A conspiracy cannot exist without the consent of two or more persons, and their agreement is an act in advancement of the intention which each of them has conceived in his mind. Mulcahy V. Reg. (in error), 3 L. R., H. L. 306 ; S. C, Ii\ Q. B., 1 Ir. R., C. L. 13. No Overt Act necessary.] — The offence oi conspiracy is rendered complete by the bare engagement and association of two or more persons to break the law, without any act being done in pursuance thereof by the conspirators. O'Connell v. Reg. (in error'), 11 C. & F. 15 ; 9 Jur. 25. 2. FoK WHAT Indictment lies. a. Oenerally. To induce Person to become Prostitute.] — ^An indictment for conspiracy at common law will lie for enticing a young woman under age to leave her father's house and live in fornication with one of the defendants; and concerting F 2 117 CEIMINAL -LA^N-^Conspiracy. 118 measures, with hei own approbation, to carry her off and conceal her for that purpose. Rex V. Grey (Lord'), 1 Bast, P. C. 460. Prisoners were found guilty upon an indict- ment charging them with conspiring to solicit, persuade, and procure an unmarried girl, of the age of seTcnteen, to become a common prosti- tute, and with having in pursuance of that conspiracy, solicited, incited and endeavoured to procure her to become a common prostitute : — Held, that although common prostitution was not an indictable offence, it was unlawful, and the indictment therefore good, without averring that the prosecutrix was a chaste woman at the time of the conspiracy. Heg. v. Howell, i F. & F. 160. Two women induced a girl of fifteen, who had left her place as a servant, to go to their house, one of them pretending that she had known her deceased parents, and saying that she would keep her until she got a place, and that they both would assist her in getting one. They were both women of bad character, and the place where they resided was a house of ill-fame. It was false that they or either of them had known the parents of the prosecutrix, and they took no step whatever to get her a place, but urged her to have recourse to prostitution. They intro- duced a man to her, and attempted, by persua- sion, and holding out prospects of money, to induce her to consent to illicit connexion with him. She refused to consent, and declared her intention of quitting the house ; the prisoners refused to give her up her clothes, and she left without them : — Held, that they were rightly convicted of conspiracy, and that they might have been indicted for the offence at common law. Beg. v. ifears, 2 Den. C. C. 79 ; T. & M. 414 ; 4 Cox, C. 0. 423 ; 20 L. J., M. C. 59 ; 15 Jur. 66. An information will be granted for a con- spiracy by a master, an attorney, and a gentle- man, to assign over a female apprentice, by her own consent, for the purpose of prostitution. BeoB V. Delai-al, 3 Bnrr. 1434; 1 "VV. Bl. 410, 439. To Murder by dififerent Means.] — A design by two persons, by different means, to murder a child of which a woman is pregnant, and ex- pects soon to be delivered, is sufficiently proxi- mate to be the subject of a conspiracy. Meg. v. Banks, 12 Cox, C. C. 393. To violate Provisions of Statute.] — An indict- ment for conspiracy to violate the provisions of a statute will lie after the repeal of such statute, for an offence committed before the repeal. Beg. V. Thompson, 16 Q. B. 832 ; Dears. C. C. 8 ; 20 L. J., M. C. 183 ; 17 Jur. 453. Where special Provision in Statute.] — An in- dictment for a conspiracy at common law will lie against two or more persons for conspiring to commit an offence for which special provision is made by statute. Beg. v. Bunn, 12 Cox, C. C. 316. To enforce by legal Process Payment of Pre- tended Debt. ] — ^A money-lender having a claim for a small sum against a borrower for money lent and high interest, caused an attorney to enter process for a sum double the amount, making up the difference by items charged on various pretences, and after receiving payment from a third party of the sum lent, so that only a sum of 51. remained due for interest, still prosecuted the suit for the whole amount in- dorsed on the process, and then tried to get from the debtor a charge on property of far greater value, and represented to the third party that the whole sum claimed was really due. The money-lender and the attorney being in- dicted for conspiracy to defraud the borrower, it was held, that there was a case for the jury ; and that if the jury believed the two combined together to enforce by legal process payment of sums they knew not to be due, and falsely re- presented them to be due, in order to obtain payment, they were liable to be convicted, as they accordingly were. Beg. v. Taylor (No. 1), 15 Cox, C. 0. 265. On a motion for a new trial on behalf of two defendants, an attorney and his client, indicted for conspiracy to defraud, there being evidence that they combined together to enforce, by means of the abuse of legal process, payment of sums they must have known not to be due, and also made false representations with that object : — Held, that there was evidence for the jury on the charge, that a direction to the jury that if they were satisfied of these facts they ought to convict was correct, and that the conviction, therefore, was right. Beg. v. Taylor (No. 2), 15 Cox, C. C. 268. To induce a Person to forego legal Claim.] — An indictment will lie for conspiring by false representations of fact to induce a person to forego a claim, although the result of such con- spiracy is not to deprive him of his right to enforce payment thereof by action. Beg. v. Car- lisle, Dears. C. C. 337 ; 6 Cox, C. C. 366 ; 2 G. L. E. 479 ; 23 L. J., M. C. 108 ; 18 Jur. 386. To cause Horse to be Purchased — Contract.] — A. and B., in concert with each other, falsely pretended to C. that a horse which they had for sale had been the property of a lady de- ceased, and was then the property of her sister, and was not then the property of any horse- dealer, and that the horse was quiet to ride and drive, and by these misrepresentations in- duced C. to purchase the horse : — Held, that they were indictable for conspiracy, although the money was to be obtained through the medium of a contract. Reg. v. Kmidriclt, 5 Q. B. 49 ; D. & M. 208 : 12 L. J., M. C. 135 ; 7 Jur. 848. To obtain Beward for Appointment to Office.] — An indictment will lie for u, conspiracy to obtain money as a reward for an appointment to an office under government. Bex v. Poll- man, 2 Camp. 229. For Sale and Transfer of Bailway Ticket.]— On an indictment for conspiracy for the sale and transferring of a railway excursion ticket, not transferable : — Held, that the prisoners must be acquitted, unless there was a previous concert between them to obtain the ticket for the purpose of its being fraudulently used. Beg. V. Absolon, 1 F. & F. 498. To Procure a Marriage.]— A conspiracy to procure a marriage between poor persons of dif- ferent parishes, for the purpose of exonerating Digitized by Microsoft® 119 CRIMINAL IjAW— Conspiracy. 120 the parish of the woman and charging the other parish, is not an indictable offence, unless the parties were unwilling to marry, or some forcible or fraudulent means of bringing about the marriage were resorted to. Mex v. Seward, 3 N. & M. 557 ; 1 A. & E. 706. To Exonerate from Maintaining Pauper,] — A conspiracy to exonerate from the prospective burthen of maintaining a pauper, not at the time actually chargeable,and to throw the burthen upon another parish, by means not in themselves un- lawful, is not indictable. lb. To obtain Title to Estate.] — If a man and woman many in the name of another, for the purpose of raising a, specious title to the estate of the person whose name is assumed, it is a con- spiracy. Bex V. Robinson, 1 Leach, C. C. 37 ; 2 East, P. C. 1010. To charge False Fact.] — Getting money out of a man by Conspiring to charge him vrith a false fact is indictable as a conspiracy, whether the fact charged is criminal or not in itself. Rex v. Rijisal, 1 W. Bl. 368 ; 3 Burr. 1320. Agreement between Brokers at Auction.] — If brokers agree together, before a sale by auc- tion, that one only of them should bid for each article sold, and that all articles thus bought by any of them should be sold again among them- selves at a fair price, and the difference between the auction price and the fair price divided among them : this is a conspiracy for which they are indictable. Levi v. Xevi, 6 C. & P. 239. Mock Auctions.] — A mock auction with sham bidders, who pretend to be real bidders, for the purpose of selling goods at prices grossly above their worth, is an offence at common law, and pereons aiding and abetting such a proceeding may be indicted for a conspiracy with intent to defraud. Reg. v. Lewis, 11 Cox, C. C. 484. To extort Money.] — ^A conspiracy to extort money is per se an offence at common law, and need not be charged to be attempted by uidawful means. Re.v v. HolUngberry, 6 D. & R. 345 ; 4 B. & C. 329. To obtain Goods without intention of Faying for them.] — A. obtained goods on credit at B.'s suggestion, in order that A. might sell them to B. below their value, B. aiding A. as a referee, and giving him a character. The evidence was such that B. must have known that A. was get- ting the goods without any intention of paying for them : — Held, that B. was guilty of conspiring with A. to defraud. Reg. v. Orman, 14 Cox, C. C, 381. To fix Price of Goods.] — An information will be granted ior a combination to fix the price of salt. Ri^x V. jforris, 2 Ld. Ken. 300. Fraudulent Fabrication of Shares.] — If persons conspire to fabricate shares in addition to the limited number of which a company, according to its rules, consists, in order to sell them as good shares, they may be indicted for it, not- withstanding any imperfection in the original formation of the company. Rex v. Matt, 2 C. & P. 521. To raise Price of Stocks.] — It is an indictable offence to conspire on a particular day by false rumours, to raise the price of the public govern- ment funds, with intent to injure the subjects who should purchase on that day. Rex v. lie Berenger, 3 M. & S. 68. To cause Shares to be Quoted.] — Directors and promoters of a company called the Eupion Fuel and Gas Company, Limited, were indicted for conspiring to induce the committee of the Stock Exchange, contrary to the true intent of the rules of the Stock Exchange, to order a quo- tation of the shares of the company in their official list; "and thereby to induce and per- suade divers liege subjects of our lady the Queen, who should thereafter buy and sell the shares of the company, to believe that the company was duly formed and constituted, and had, in all respects, complied with the rules and regulations " of the Stock Exchange " so as to entitle the com- pany to have their shares quoted on the official list of the Stock Exchange :" —Held, that the indictment was good after verdict ; as the court would take judicial notice of the fact that the shares were intended to be bought and sold on the Stock Exchange, and it was a necessary in- ference from the indictment and verdict that the intention of the conspirators was to induce the public to act on the belief that the company had been duly constituted, and to deal in the shares of the company ; and consequently that the in- tention of the conspirators was to defi'aud and cheat the buyera and sellers of shares. Reg. v. "' 2 Q. B. D. 48 ; 46 L. J., M. C. 145 ; 36 L. T. 297 ; 25 W. K. 283 ; 13 Cox, C. C. 563— C. A. Affirming 13 Cox, C. C. 230 ; 35 L. T. 738 ; 24 W. R. 921. To issue False Balance-Sheet or Prospectus.] — The directors of a joint-stock bank, knowing it to be in a state of insolvency, issued a balance- sheet shewing a profit, and thereupon declared a dividend of six per cent. They also issued ad- vertisements inviting the public to take shares upon the faith of their representations that the bank was in a flourishing condition. On an ex officio information filed by the attorney-general, they were found guilty of a conspiracy to de- fraud. Reg. V. Brown, 7 Cox, C. C. 442 ; S. C, sub nom. Reg. v. Esdaile, 1 F. & F. 213 ; Cook Evans' Rep. (1858). Though some of the directors were aware of the insolvent state of the bank, and concurred in the balance sheet and the dividend with a view to induce persons to retain or to purchase shares in the bank in the hope or even belief that they might thereby rescue the bank from its difficul- ties, they were in point of law guilty of the offence charged in the information. lb. With regard to the manager, who was also in- cluded in the information, held, that it was no excuse that he was the mere servant of the di- rectors, for though under certain circumstances the servant may not be criminally liable for what he does under his master's orders ; in this case, he, from thebeginning, exercised thechief control over all the affairs and transactions of the bank. lb. Semble, that it would have been sufficient to sustain the charge against all the defendants to shew that the bank was insolvent to their know- Digitized by Microsoft® 121 CEIMINAL LAW— Conspiracy. 122 ledge, and that they knowing it to be so, con- curred in putting forth a false balance-sheet, representing it to be in a prosperous condition in order to lead the public to continue to con^de in it. lb. The declaration of a dividend and issue of new shares in an insolvent state was fraudulent, if they knew of the insolvency, but the purchase of shares in the bank with the money of the bank, in order to keep up its credit, was fraudulent, whether or not they knew of the insolvency. lb. If they knew that debts, hopelessly bad, were included in the balance-sheet as assets, and the reserve fund set apart for bad debts was insuffi- cient to meet them, this was evidence that the balance-sheet was fraudulent, even although it was usual to enter bad debts as assets, it being also usual to write them off when found to be hopeless. lb. Evidence that the defendants knew the true state of affairs sufficed to shew that the books representing otherwise were false to their know- ledge, and although the balance-sheet truly represented the books, it was fraudulent. lb. Any evidence tending to shew that they knew the true state of affairs, whether or not they were implicated in particular transactions, was admissible against them. lb. On an indictment against a manager and secretary of a bank, containing counts charging them with making and publishing false state- ments of the affaii-s of the bank, and conspiring together to do so, the prosecutors were put to elect on which counts they would rely, and having elected to rely on the counts for conspi- racy: — Held, that it was not enough to prove that the defendants made and put forth false statements intended and calculated to deceive, unless they had entered into a precedent and fraudulent conspiracy to do so. Jleff. v. Swell, 4 F. & F. 407. The principal count relied upon not stating an intent to defraud any particular parties : — Held, that though there were auditors whose, duty it would be to discover any frauds, that was no answer to the prosecution, if the defendants were parties to such a conspiracy to deceive them and the directors. But, on the other hand, the jury were told that evidence that the directors were privy to all that was done was very material, with a view to negative such conspiracy, on the part of the defendants, to deceive. lb. On an indictment for conspiracy to cheat and defraud the public by means of the circulation of a false prospectus, to induce them to take shares in a worthless company, the doctrine laid down by Lord EUenborough as to conspiracy in ' Rex V. De Berengcr (3 M, & S. 67), upheld and applied. Beg. v. Ourney, 11 Cox, G. C. 414. To defraud Partner.] — A fraudulent agree- ment by a member of a partnei-ship with third persons, wrongfully to deprive his partner by false entries and by false documents of all in- terest in some of the partnership property on taking accounts for the division of the property on the dissolution of the partnership, is a con- spiracy, although the offence was completed before the passing of 31 & 32 Vict. c. 116, by which a partner can be criminally convicted for feloniously stealing partnership property. Reg. V. Warhirton, 1 L. E., C. C. 274 ; 40 L. J., M. C. 22 ; 23 L. T. 473 ; 19 W. E. 165 ; 11 Cox, C. C. 584. Effect of latention of Prosecutor to Defraud.] Three persons being in a public-house with the prosecutor, one of them, in concert with the other two, placed a pen case on the table and left the room. Whilst he was absent, one of the two re- maining took the pen out of the case, and put a pin in its place, and the two induced the prose- cutor to bet with the other, when he returned into the room, that there was no pen in the case, and the prosecutor staked 50s. On the pencil ease being turned up, another pen fell into the prosecutor's hand, and the three took the money : — Held, that the evidence supported a conviction upon a count charging the three with conspiring by false pretences and fraudulent devices to cheat the prosecutor of his money, although it appeared that he'had the intention of cheating one of the three if he could. Reg. v. Hudson, Bell, C. C. 263 ; 8 Cox, C. C. 305 ; 6 Jur., N. S. 566 ; 29 L. J., M. C. 145 ; 2 L. T. 263 ; 8 W. E. 421. b. Trade Combuiatious. . Mere Persuasion not to Work insufftcient.] — On an indictment under 6 Geo. 4, c. 129, s. 3, for conspiracy to force workmen to leave their em- ployment, the evidence being that the defendants merely waited outside the place where the work- men were employed and tried to induce them not to work there, and that their conduct was civil and peaceable : — Held, that the question was, whether they had endeavoured to control the free action or overcome the free will of the workmen by force or intimidation. If there had been merely persuasion, no matter what the con- sequence of it was, peaceable and unaccompanied by menace or violence, this would not render the defendants amenable to criminal justice on such charge, they being then protected by 22 Vict. c. 34. Reg. v. Slieplierd, 11 Cox, C. C. 325. A conspiracy to obstruct a manufacturer in carrying on his business, by inducing and per- suading workmen who had been hired by him to leave his service, in order to force him to raise his rate of wages, or to make an alteration in the mode of conducting and carrying on his trade, is an indictable offence ; and an agreement to in- duce and pereuade workmen, under contracts of servitude for a time certain, to absent themselves from such service, is an indictable offence, al- though no threats or intimidation are proved, or any ulterior object averred. Reg. v. Duffield, 5 Cox, C. C. 404. Workmen who agree that none of those who make the agreement will go into employ unless for a certain rate of wages have no right to agree to molest, or intimidate, or annoy other workmen in the same line of business, who refuse to enter into the agreement, and who choose to work for em- ployers at a lower rate of wages, lb. In these cases the essence of the offence is the combination to carry out an unlawful purpose, and the unlawful combination or conspiracy is to be infeiTcd from the conduct of the parties. lb. If persons conspire together to take away the workmen of a manufacturer, that constitutes such an obstruction and molestation of him as to support that part of a count which alleges a conspiracy by molesting and obstructing him. lb. Picketing.]— Picketing is an offence within Digitized by Microsoft® 123 CRIMINAL LAW— Conspiracy. 12Jt the Employer and Workmen Act, 1875. Rvq. v. liauU, 13 Cox, C. C. 282. To quit Service— Special Statutory Provision.] —The servants of a gas company, under a con- tract of service, being offended at the dismissal of a fellow servant, agreed together to quit the service of their employers, without notice and in breach of their conti-acts of service, by reason of which the company was seriously impeded in the conduct of their business. Being indicted for a conspiracy, it was contended that 34 & 35 Vict. 0. 31, having determined that no act shall be illegal merely by reason of its being in re- straint of trade, and having also defined the offence of obstructing or molesting, and other- wise determined what shall be deemed to be offences as between masters and servants, had virtually declared all other acts not to be punishable :— Held, that the provisions of the statute had not affected the common law of con- spiracy, for which an indictment would lie. Recj. v. Bnnn, 12 Cox, C. C. 316. Fieventing "Workman from obtaining Work.] — The Philanthropic Society of Coopers was formed in order to relieve its members when sick, and to provide for their funerals. One of their members was fined by them for working in a yard where steam machinery was used, and upon non-payment of the fine they acted in such a way as to prevent him from obtaining work : — Held, an illegal combination and conspiracy. Meg. V. Hewitt, 5 Cox, C. C. 162. Dictating whom Masters shall employ.] — A combination of workmen, for the purpose of dictating to mastei-s whom they shall employ, is indictable. Rex v. Bykerdyke, 1 M. & Rob. 179. 3. INBICTMEXT. a. Who Indictable. Who should be included.] — On an indictment for conspiracy, it is not proper to include persons who have not been privy to the acts relied upon as proof of the conspiracy, and whose offences, whatever they may have been, are wholly separate and distinct. To include in the indict- ment persons whose offence, if any, came under the latter head, was unfair and unjust, as tend- ing to involve them in the odium of acts to which they were not parties. Reg. v. JBoulton, 12 Cox, C. C. 87. Person joining after Conspiracy formed. ] — If a conspiracy is formed, and a person joins it after- wards, he is equally guilty with the original consjDirators. Reg. v. Murphy, 8 C. & P. 297. One Conspirator dying.] — Where two conspire, and one dies, the other may still be indicted for the conspiracy. Rex v. NiclioUs, 13 East, 4:12, ii. To. Form of. Specifying Goods to be taken away,] — A count stated that the defendants conspired to cause goods, wares and merchandise, which had been imported into the port of London, whereof duties of customs were then and there due and payable. to be taken and carried away from the port, and to be delivered to the owners thereof, without payment of a great part of the duties of customs so then and there due and payable thereon : — Held, that the gist of the offence being the con- spiracy, it was not necessary to specify the goods, wares and merchandises, or the duties payable thereon. Reg. v. Blahe, 6 Q. B. 126 ; 13 L. J.. M. C. 131 ; 8 Jur. 145. To obtain Goods — Owner must be stated.]— An indictment for a conspiracy to obtain goods by false pretences was bad, before 14 & 15 Vict. c. 100, s. 8, if it did not state to whom the goods belonged. Reg. v. Parker, 2 G. & D. 709 : 3 Q. B. 292 ; 6 Jur. 822. Names of Parties Defrauded.] — It is no objec- tion that the count does not name the parties who were to have been defrauded. Reg. v. Peek, 9 A. & B. 686 ; 1 P. & D. 508. An indictment to conspire to raise the price of funds with intent to injure the persons who should .purchase is well enough, without specifying the particular persons who purchased as the persons intended to be injured. Rex v. De Berenger, 3 M. & S. 68. See also King v. Reg. (in error'), infra, col. 126. Specific Pretences.] — ^An indictment charged that the defendants conspired, by divers false pretences and subtle means and devices, to obtain from A. divers large sums of money, and to cheat and defraud him thereof : — Held, tliat the gist of the offence being the conspiracy, it was quite suificient only to state that fact and its object, and not necessa.ry to set out the specific pretences. Rex V. Gill, 2 B. & A. 204. Falsity of Document.] — In an indictment for a conspiracy, in producing a false certificate in evidence, it is not necessary to set forth that the defendants knew at the time of the conspiracy that the contents of the certificate were false; it is suificient that for such purpose they agreed to certify the fact as true, without knowing that it was so. Rex v. Mawbey, 6 T. E. 619. A count, charging that the defendants, being indebted to divers persons, conspired to defraud them of the payment of such debts, and in pur- suance of such conspiracy executed a false and fraudulent deed of bargain and sale and assign- ment of certain goods from two of themselves to a third, with intent thereby to obtain emoluments to themselves, is bad, for omitting to show in what respect the deed was false and fraudulent. Reg. V. Peek, 9 A. & E. 686 ; 1 P. & D. 508. Ueans by which Conspiracy to be Carried out.] — ^Aa indictment charged the defendants with conspiring to force workmen hired and employed by P. in his business of a japanuer to depart from their employment, by unlawfully molesting them ; by unlawfully using threats to them ;' by unlawfully intimidating them ; by unlawfully molesting P., and by unlawfully ob- structing P. so carrying on his business, and tlic workmen so hired : — Held, that these counts were sufficiently full and certain, and that the means by which the conspiracy was to be carried on were well stated in the words of the 6 Geo. 4, c. 129, s. 3. Reg. v. Rowlands, 2 Den. C. C. 364 ; 5 Cox, C. C. 436 ; 17 Q. B. 671 ; 21 L. J., M. C. 81 ; 16 Jur. 268. Sec Digitized by Microsoft® 125 CRIMINAL IjA^N— Conspiracy. 126 aatm V. Echcrsley, 6 El. & Bl. 47 ; 24 L. J., Q. B. 353 ; 1 Jur., N. S. 874. To Cheat and Defraud — Sufficiency.] — ^A first count of an indictment charged that the pri- soners, intending to defraud one J. G., did con- spire to cheat and defraud J. G. of a cert^n large sum of money, to wit, 20Z. The second charged a conspiracy, by false pretences, to obtain from J. G. a large sum of money, to vrit, 2(il., and to cheat and defi'aud him thereof. The third count charged a conspiracy by false pretences feloniously to steal from J. G. a large sum of money, to wit, 20Z. The fourth count charged an attempt, by false pretences, to obtain from J. G. the sum of 201., with intent to defraud. The fifth and last count charged that the pri- soners, by false pretences, did attempt to steal from J. G. a large sum of money, to wit, Wl., of the moneys of the said J. G. The prisoners were found guilty, and judgment was passed on each count. They were convicted on all the counts, and were sentenced to a distinct punish- ment on each : — Held, that the fifth and last, was a good count, and that the conviction must therefore be affiiTaed. Reg. v. BuUoolt, Dears. C. C. 653 ; 25 L. J., M. C. 92. An indictment charging that the defendants unlawfully, fraudulently and deceitfully did con- spire, combine, confederate and agree together, to cheat and defraud the prosecutor of his goods and chattels, is good. Sydserf v. Reg. (in error}, 11 Q. B. 245 ; 12 Jur. 418. An indictment charged that the defendants conspired to cheat and defraud certain liege subjects of the Queen, being tradesmen, of quantities of their goods ; that in pursuance of the conspiracy, the defendant B. fraudulently ordered and obtained upon credit from W. W. and C. W., upholsterers, divers goods of W. W. and C. W. (the count stated a like obtaining on credit from other tradesmen named, and from others whose names were unknown) ; and that, in further pursuance of their conspiracy, and in order that the goods might be taken in execu- tion and sold, as after mentioned, the defendants ordered the same to be delivered by W. W. and C. "VV. at the house of B., and they were so delivered and never paid for ; and in further pursuance, &c., and in order, &c., B. allowed them to continue in his house till they were taken in execution as after mentioned. That the defendants, in further pursuance, &c., did falsely and fraudulently pretend that certain debts were due from B. to K. and P., two others of the defendants, and K. and P. did, to obtain payment of such fictitious debts, by collusion with B., commence actions against B. ; that K. and P. collusively signed judgment against B. in the actions, and issued execution thereon, by virtue of which the goods, before the expiration of the times of credit, were taken in execution, and sold to satisfy the fictitious debts : and so the jurors found the defendants in manner and means aforesaid did cheat and defraud W. W. and C. W. of the goods : — Held, that the indict- ment was good. Reg. v. Xhtg, D. & M. 741 ; 7 Q. B. 782 ; 13 L. J., M. C. 118 ; 8 Jur. 662. Error being brought on the judgment : — Held, that the indictment was bad, for that the words alleging conspiracy shewed a design to injure, not tradesmen indefinitely, but individuals, and therefore either the persons should have been named, or an excuse stated for not naming them, and that the allegation of conspiracy was not aided by the overt acts ; and that the overt acts themselves did not, either in connexion with the allegation of conspiracy, or independently, amount to indictable misdemeanors. £ing v. Reg. (/■» error:), 7 Q. B. 795 ; 14 L. J., M. C. 172 ; 9 Jur. 883— Ex. Ch. The defendants were tried at a quarter sessions upon an indictment, one of the counts of which charged a conspiracy, " by divers false pretences against the statute in that case made and pro- vided, the said B. B. bf his moneys to defraud, against the form of the statute : " — Held, that the count sufficiently charged a conspiracy to obtain money by false pretences, and that it must be taken, after verdipt, that the conspiracy was one of which a court of quarter sessions had cogni- zance, under 5 & 6 Vict. c. 38, s. 1. ZatJum, v. Reg. (in error), 9 Cox, C. C. 516 ; 5 B. & S. 635 ; 33 L. J., M. C. 197 ; 10 Jur., N. S. 1145 ; 10 L. T. 571 ; 12 W. E. 908. A count is good which simply charges that the defendants, unlawfully, &c., did conspire, com- bine, confederate and agree together, by divers false pretences and indirect means, to cheat and defraud R. of his moneys. Reg. v. Gom^ertz, 9 Q. B. 824 ; 16 L. J., Q. B. 121 ; 11 Jur. 204. An indictment to cheat and defraud a party of the fruits and advantages of a verdict obtained, is too general, and bad in point of law. Rex v. Richardson, 1 M. & Bob. 402. Where the overt acts were charged to have been done with intent to defraud L. G., who was enti- tled to receive the sum of money in question, and the juiy found that L. G. was not so entitled : — Held, that a verdict of guilty could not be sup- ported. Reg. V. Dean, 4 Jur. 364. A count for conspiring to deceive and defi'aud divers of her Majesty's subjects who should bargain with the defendants for the sale of goods, of gi'eat quantities of such goods, without making pay- ment, remuneration or satisfaction for the same, with intent to obtain profit and emolument to the defendants (not stating with particularity what the defendants conspired to do), is bad, as not shewing that the conspiracy was for a pur- pose necessarily criminal. Reg. v. PecTt, 9 A. & B. 686 ; 1 P. & D. 508. To do Illegal Act.]— An indictment that certain persons " imlawfnlly, maliciously and seditiously did conspire and agree with each other, and with divers other pereons unknown, to raise and create discontent and disaffection amongst the liege subjects of her Majesty, and to excite such subjects to hatred and contempt of the government and constitution of this realm as by law established, and to unlawful and seditious opposition to the government and con- stitution ; and also to stir up jealousies, hatred and ill-will between different classes of her Majesty's subjects, and especially amongst her Majesty's subjects in Ireland, and feelings of ill-will and hostility towards and against her Majesty's subjects in other parts of the United Kingdom called England : "—Held, that this statement, with or without the additional charge, " and to assume and usurp the prerogative of the crown m the establishment of courts for the administra- tion of law," constituted a definite charge against the several defendants of an agreement between them to do an illegal act. 0' Connelly Ren (in error), 11 C. & F. 15 ; 9 Jur. 25. A count, setting forth an agreement between Digitized by Microsoft® 127 CRIMINAL LAW— Conspiracy. 128 persons " to cause and procure, and aid and assist in causing and procuring, divers subjects of lier Majesty, unlawfully, maliciously and seditiously, to meet and assemble together in large numbers, at various times and at difierent places within Ireland, for the milawful and seditious purpose of obtaining, by means of the intimidations to be thereby caused, and by means of the exhibition and demonstration of gi'eat physical force at such assemblies and meetings, changes and alterations in the government, laws, and constitution of the realm by law established," whether or not com- prehending the additional words, " and especially, by the means aforesaid, to bring about and ac- complish a dissolution of the legislative union now subsisting between Great Britain and Ire- land," and whether or not omitting the words " unlawfully, maliciously, and seditiously," does not sufficiently state the illegal purpose of such agreement, and is, therefore, bad for uncertainty. lb. Intimidation.] — The word "intimidation," not being vocabulum artis, has not, necessarily, a meaning in a bad sense ; and, in order to give it legal efficacy, it should at least appear, from the context of the indictment, what species of fear was intended, and upon whom such fear was meant to operate. lb. Objects prohibited by Statute.] — In an indict- ment for conspiracy at common law to effect objects prohibited by a statute, it is enough to follow the words of the act of parliament. Reg. V. Rowlands, 2 Den. C. C. 364 ; 17 Q. B. 671 ; 5 Cox, C. C. 436 ; 21 L. J., M. C. 81 ; 16 Jur. 268. Overt Acts, whether Necessary to be Stated.] — An indictment for a conspiracy to impoverish a man, by preventing him from working at his trade, need not state the overt acts used to effect the in- tended mischief. Rex v. Eccles, 1 Leach, C. C. 274. An indictment that C. died possessed of East 1 ndia stock, leaving a widow ; that the defendants conspired, by false pretences and false swearing,, to obtain the means and power of obtaining such stock ; that in pursuance of such conspiracy, they caused to be exhibited in the Prerogative Court of Canterbuiy a false affidavit made by one of them, in which the deponent stated that C.'s widow had died without taking out administra- tion to C, and that deponent was one of her children ; and that the defendants fraudulently obtained to deponent, as one of the children of C., a grant of administration to his estate. On motion to arrest the judgment, on the ground that a charge of conspiracy to obtain the means and power of obtaining the stock, did not de- scribe any ofEence : — Semble, that the statement of the overt act done in furtherance of the objects of conspiracy was so interwoven with the charge of conspiracy itself, as to show an unlawful con- spiracy. Wright v. Reg. (in error'), 14 Q. B. 148. But held, that at all events the overt acts in themselves constituted a misdemeanor, on which the com-t could legally pronounce judgment. Zb. A count merely charging conspiracy m the same manner, without alleging the overt acts, is bad. Ih. And compare King v. Rer/. (in error), supra. Surplusage and Immateriality.] — A count charged the defendants with a conspiracy, by false pretences and subtle means and devices, to extort from T. E., one sovereign, his moneys, and to cheat and defraud him thereof ; the evidence failed to prove that the defendants employed any false pretence in the attempt to obtain the money: — Held, that so much of the count might be re- jected as surplusage, and the defendants convicted of the conspiracy to extort and defraud. Reg. v. Yates, 6 Cox, C. C. 441. In an indictment for a conspiracy to extort money, one count averred that the defendants, in pursuance of a conspiracy to extort money from the prosecutor, falsely exhibited certain indict- ments against him ; another count averred that the defendants, in pursuance of the like con- spiracy, offered to suppress an indictment pending against the prosecutor, if he would give them money for so doing. The jury found the defen- dants guilty, bnt found specially that the indict- ments preferred by them against the prosecutor were not false : — Held, that the averment in the former count was immaterial, and that the latter count would support the conviction. Re,v v. IMUngberry, 6 D. & E. 345 ; 4 B. & C. 329. 4. Particdlaks of Oveet Acts. Effect of, and when Defendant is entitled to,] — Particulars in an indictment for conspiracy having been ordered of overt acts, the counsel for the Crown were confined within them ; but par- ticulars pending the trial having been ordered, of bad debts incurred to the bank by one of the de- fendants, the Crown was not restrained, next day, the particulars not having been delivered, from giving evidence on that head. R^g. v. Esdaile, 1 F. & F. 213 ; S. C, Reg. v. Brown, 8 Cox, C. C. 69. If the counts for a conspiracy are framed in a general form, a judge will order that the prose- cutor should furnish the defendants with a par- ticular of the charges ; and that particular should give the same information to the defendants that would be given by a special count. But the judge will not compel the prosecutor to state in his par- ticular the specific acts with which the defendants are charged, and the times and places at which those acts are alleged to have occurred. Rex v. Ham at on, 7 C. & P. 448. Where an indictment for conspiracy charges the offence in general terms, the defendant is entitled to particulars of the charge, although there has been a previous committal by a magis- trate. Therefore, where an indictment contained counts charging a conspiracy to cheat tradesmen of goods, without mentioning any specific case or name, time or place : — Held, that the defendant was entitled to such particulars. Reg. v. Rycroft, 6 Cox, C. C. 76. 5. Evidence. Acts, &c., of Co-defendant when Evidence against others.]— On an indictment for con- spiracy, where there is evidence of several persons having engaged therein, what is said by any of them at another time and place respecting the object of the conspiracy is evidence against the others. 2iei» v. &Zto', 5 Esp. 225. Andseo i?e» V. Hammond, 2 Esp. 719. On an indictment against directors of a bank for conspiring to defraud, letters or statements by Digitized by Microsoft® 129 CRIMINAL TuAW— Conspiracy. 130 individual defendants as directois to officers of the bank, were admitted as evidence against all of them. Heg. v. Brown, 7 Cox, C. C. 412 ; S. C, sub nom. Mej/. v. EsdaiU, 1 F. & F. 213. So, in an indictment for a conspiracy to cause themselves to be believed pei'sons of large pro- perty, for the purpose of defrauding tradesruen, the prosecutor may give various instances of then- giving a false representation of their circum- stances, as overt acts of the conspiracy. -S''* v. Roberts, 1 Camp. .399 ; 2 Leach, C. 0. 987, n. On an indictment for a conspiracy, the letters of one of the defendants to the other are, under certain circumstances, admissible in evidence m his favour, to shew that he was the dupe of the other, and was not himself a participator in the fraud. 2fc« v. Whitehead, 1 C. & P. 67. Where an indictment charges an ordinary con- spiracy, it is not necessary to prove a common design between the defendants before proving the acts of each defendant ; for the acts of each de- fendant are only evidence against himself, and may be the only means of establishing the con- spiracy. Heg. V. Brittain, 3 Cox, 0. C. 77. Inf oi-mation for a conspiracy to cause and pro- cure goods to be imported without payment of part of the duties of customs, by entering the goods as less in quantity and quality than they really were. One of the defendants, B., was a landing-waiter ; the other, T., who did not appear to take his trial, was a Custom-house agent. According to the course of business at the Custom- house, certain goods consigned to T. were placed in the custody of B., and, upon the examination of them, entries of the quantity and quality were made by B. and T. respectively in separate books, and the amount of duty was calculated thereupon : — Held, fli-st, that evidence of an entry made by T. in his ledger, purporting to be an entry of the same goods, but varying fi'om the preceding entries in respect to the quantity, was admissible for the purpose of proving the conspiracy, as an act tending towards the object of the conspiracy. Meg. V. Blalte, 6 Q. B. 126 ; 13 L. J., M. C. 131 ; 8 Jur. 666. Held, secondly, that evidence of a memorandum made by T. on the counterfoil of a cheque drawn by him, that part of the money ai-ising from the fraud was received by B., was madmissible, it being, a declaration of T. after the principal transaction was complete. I1>. A number of persons were charged with mur'der, committed by an act done in the course of a con- spiracy for the purpose of liberating a prisoner, of which conspiracy he was cognizant : — Held, that acts of that prisoner, within the prison, and articles found upon him, were admissible against the persons so charged. Reg. v. Desmond, 11 Cox, C. C. lie. If a handbill says that certain things will be done by certain persons, and that handbill is circulated where it is probable those pei-sons would see it, and they do the very thing that the handbill indicates they would do, the contents of the handbill are admissible against them. B^g. V. Driffield, 5 Cox, C. C. 404. In order to render the speech of a third person at a meeting admissible on an indictment for conspiring against third parties, not present at that meeting, it must be shewn either that such third person was co-operating at that time with the defendants as a conspirator, and engaged with them in one common purpose, or that he was acting as the agent of the defendant. 11. On an indictment in which four were chargmj with conspiracy to incite the public to crime, and also in separate counts, were charged each with conspiracy with some other to commit the sub- stantive crime .—Held, that the evidence under the two heads of offence, was in its nature entirely distinct ; that, under the foi-mer hea.d, only such acts as were done in public were admis- sible, and under the latter head, only such acts as were inter se. And if the proof of the con- spiracy consists of proof that the substantive crime has been committed, however legal such a course may be, it is not satisfactoiy. Meg. v. Bmlton, 12 Cox, C. C. 87. As to two, the only evidence was of letters to third, not shewn to have been answered :— Held, to be no evidence of conspiracy. /*. Acts done without the Jurisdiction^ J— Act, „jne in Scotland were tendered ii Held, that not being within the j done in Scotland were tendered in evidence :— Held, that not being within the jurisdiction nt arrest, these were not admissible. lb. Who can give Evidence— Husband of one Prisoner.]— A prisoner was indicted in one count for obtaining money from the tmstees of a savings bank by pretending that a document produced by the wife of T. had been filled up by his authority, and in another count for a conspiracy with the wife of T. to cheat the bank. The -vvrf e was not indicted. The evidence of T. having been received in support of the indictment, the prisoner was acquitted on the count for conspiracy, and convicted on the other :— Held, that T.'s evidence was properly received, and that there was no inconsistency in the finding of the jury on the two counts. Reg. v. Hallidaij, 8 Cox, C. G. 298 ; Bell, C. C. 2.57 ; 29 L. J., M. C. 148 : C Jur., N. S. 514 ; 2 L. T. 254 ; 8 \V. K. 423. Wife of one Prisoner.] — But the wife of one defendant cannot be called on behalf of a co-defendant, though the parties appear and defend separately. Rex v. Loclier, 5 Esp. Wi. One Defendant.] — Nor one defendant who suffers judgment by default. Rex v. Lafonr, 5 Esp. 155. Two were jointly indicted for obtaining money by conspiracy and false pretences. On being arraigned, one pleaded guilty and the other not guilty. On the trial of the latter, the former was admitted as a witness although it was objected that the evidence of a co-conspii-ator could not be received under the count for conspiracy. The jury found him guilty on the false pretences counts, but not on the conspiracy counts : — Held, that the co-conspirator was admissible as a witness and that the conviction should stand. Reg. V. Gallagher, 32 L. T. 406. Unstamped Document.] — In the course of proving a conspiracy to defraud, carried into effect by prevailing upon the prosecutor to accept bills, a waiTant of attorney, given to him for the purpose of inducing him to accept, reciting the acceptance, may be given in evidence, though unstamped. Reg. v. Gompertz, 9 Q. B. 824 ; 1 6 L. J., Q. B. 121 ; 11 Jur. 204. Sec 33 & 34 Vict, c. 97, s. 17. Production of Original when TTnnecessary. ] On an indictment for conspiring and unlawfully meeting for the purpose of exciting discontent and disaffection, resolutions passed at a former Digitized by Microsoft® 131 CRIMINAL LAW— Conspiracy. 132 meeting are admissible. A copy of these resolu- tions delivered by such defendant to a witness at the time of the former meeting, as the resolutions then intended to be proposed, and which corre- sponded with those which the witness had heard read from a written paper, is admissible without producing the original, itox \. Jliint, 3 B. & A. 566. Evidence of same Transaction.] — A. was charged with having conspired with J. and othere unknown to raise insurrections and obstruct the laws. It was proved that A. and J. were mem- bers of a Chartist lodge, and that A. and J. were at the house of 'the latter on a certain day, on the evening of which A. directed the people as- sembled at the house of J. to go to the race- ■course at P. whither J. and other pereons had gone : — Held, that, on the trial of A., evidence was receivable that J. had, at an earlier part of the day, directed other persons to go to the race- course ; and it being proved thai; J. and an armed party of the persons assembled went from the New Inn : — Held, that, evidence might be given of what J. said at the Xew Inn, it being all one transaction. Riy. v. Sluilanl, 9 C. & P. 277. S. and H. were jointly indicted for false pre- tences, and for a conspiracy. The evidence was, that they were ostensibly carrying on business as B. & Co., and that H. was the author of a book published by them. To force the sale of the book, S. got M. to write letters purporting to come from a lady of title ordering a copy of the book and to address them to coimtry booksellers : — Held, that evidence of attempts to defraud other booksellers than those named in the indictment was admissible under the count for conspiracy. lieg. V. Steiisoii, 12 Cox, C. C. Ill ; 2.5 L. T. 666. On an indictment for conspiring and unlaw- fully meeting for the purpose of exciting dis- content and disaffection, resolutions passed at a former meeting, in another plact'. and at "which one of the defendants presided, the professed object of which meeting was to fix the meeting mentioned in the indictment, are admissible to shew the inten tion of such defendant in assembling and attending the meeting in question, at which he also presided. Bee v. Hunt, 3 B. & A. 566. And large bodies of men having come to the latter meeting from a distance, marching in regular order, it was admissible to shew the character and intention of the meeting, that within two days of the same great numbers of men were seen ti-aining and drilling before day- break, at a place fi'om which one of these bodies had come to the meeting, and on their discover- ing the persons who saw them, they ill-treated them, and forced one of them to take an oath never to be a king's man again ; and it was admissible, for the same puipose, to shew that another body of men, in their progress to the meeting, on passing the house of one of the persons who had been so ill-treated, expressed their disapprobation at his conduct by hissing. Ih. Object of Conspiracy — Itself Felonious.] — Where the evidence in support of a conspiracy shews the object of the conspiracy to be in itself felonious, and that a felony was committed in carrying it out, the defendants are not entitled to an acquittal on the ground that the mis- demeanor is merged in the felony ; nor is it any ground for arresting the judgment, that on the face of the indictment itself the object of the conspiracy amounts to a felony, the gist of the offence charged being the conspiracy. Reg. v. Sutton, 11 Q. B. 929 ; 3 Cox, C. C. 229 ; 18 L. J., M. C. 19 ; 12 Jur. 1017. Complaints to Police — Whether Complainants must be called.] — On the trial of an indictment for a conspiracy to procure large numbers of peraons to assemble for the purpose of exciting terror in the minds of her Majesty's subjects, evidence was- given of several meetings at which the defendants were present, and it was pro- posed to ask a witness, who was superintendent of police, whether persons complained to him of being alarmed by these meetings ; — Held, that the evidence was receivable, and that it was not necessary to call the persons who made the com- plaints. Meg. V. Vincent, 9 C. & P. 275. Bepresentation as to Another's Solvency — Writing Unnecessary.] — A party may be con- victed of a conspiracy to cheat and defraud, by means of a false and fraudulent representation as to the solvency or trade of another, although the representation was oral, and one for which, per se, he would not be civilly liable under 9 Geo. 4, c. 16, s. 14 ; but the question will be not merely whether the representation was false and fraudulent, but whether it was made in collusion with the co-defendant, for the purpose of cheating the prosecutor. Reg. v. Timothy, 1 F. & F. 39. Xo Benefit to Defendants accruing.] — On an indictment for a conspiracy to defraud by false representations of solvency, the defendants may be convicted who had no knowledge of the transactions which resulted in solvency, provided they were aware of the result, and concurred in the representations in furtherance of the common design, even although they did so with no motive of particular benefit to themselves. Reg. v. Esdaile, 1 F. & F. 213 ; rei-enthi{/ difficulties m the pi-osecution of offen- ders in any case of embezzlement, framlulciit apiMcation or dis^josition, it shall be lawful to charge in the indictment and jyroceed against the offender for any nuviber of distinct acts of embezzlement, or of fraudulent ajJXJlicat ion or dixj)osition,not exceeding three, which may have been committed by him- against her Majesty or against the same master or em])loyei; mithin the space of six months from the first to the last of such acts ; And in every such indictment where the of- fence shall relate to any money or any valuable security it shall be sufficient to allege the embezzle- ment, or fraudulent application or disposition, to be of money, without specifying any particular coin or valuable security ; And such allegation, so far as regards the de- scription of the property, shall be sustained if tlie off'endev shall be proved to have embezzled or fraudulently aj)plied or disposed of any amount, although tlie particular species of coin or valu- able security of which such amount was composed shall not bej'roved ; Or if he shall be proved to have embezzled or fraudulently applied or disposed of any piece of coin or any valuable security, or any portion of the value thereof, although sueli piere of coin or valuable security may have been delivered to him in order that sonwpai't of the value thereof should be returned to the jmrty deli rerin^ the same, or to some other perso}i, and such part shall have been returwd accordingly. (^Former provision, 7 & 8 Geo. 4, u. 29, s. 48.) Within Six Calendar Months.] — An indict- ment, which charges in one count that within six calendar months the prisoner received three sums, laying a day to the receiirt of each, and that, " on the several days aforesaid," he embezzled these sums, is bad, because it does not shew that the sums were embezzled within six months of each other ; and this objection ought to be taken on demurrer. Reg. v. Purchase, Car. & M. 617. 161 CEIMINAL LAW — Embezzlement by Clerks and Servants. 162 from places in Yorkshire to his employei-s iu Middlesex letters, making no mention of the money so collected, and on the 21st of April he wrote and posted at Doncaster in Yorkshire to his employers in Middlesex a letter which was intended to make them believe that he had not then in fact collected the money in question. These letters were duly received by the employers in Middlesex : — Held, that the receipt of the letter of the 21st of April in Middlesex was suffi- cient to give jurisdiction to tiy the prisoner in Middlesex. Reg. v. Rogers, 3 Q. B. D. 28 ; 47 L. J., M. C. 11 ; 37 L. T. 473 ; 26 W. E. 61 ; 14 Cox, G. C. 22. It was the duty of a commercial traveller to remit daily to his employers, who resided in London, the moneys which he collected, without reduction. He, on the 1st and 2nd March, 187S, collected at Newark two sums of money which he did not remit or accomit for till the first week in April, when one of his employers went to Grantham, where the prisoner resided, saw him and taxed him with receiving moneys and not accounting to them for them. The prisoner then and there handed to his employer a list of moneys he had collected and not accounted for, including the above two sums. There was no evidence that the prisoner returned to Grantham on either of the days, or at what time of the respective days he received the two sums of money. He was indicted and convicted at the borough of Grantham Quarter Sessions for em- bezzling the above two sums of money : — Held, that the conviction was bad, as there was lui evidence of any embezzlement within the borough of Grantham. Reg. v. Treadgolcl, 39 L. T. 291. An indictment for embezzlement may be either laid in the county in which the money was re- ceived, or in the county where the prisoner dis- owned having received the money. Ri;,i- v H,iT).wn, E. & R. C. C. 56 4 1 East, P. C. Add xxiv. ; 2 Leach, C. C. 975. If a servant receives money for his master in the county of A., and being called upon to ac- count for it in the county of B., there denies the receipt of it, he may be indicted for the em- bezzlement in the latter county. Rex v. Taylor, 3 B. & P. 596. A prisoner, who was employed as a travelling salesman by a tradesman living at Nottingham, received two sums of money for his master in the county of Derbyshire, and, having appropriated them to his own use, neglected to return and ac- count to his master for the money, as it was his duty to do ; and having been, about two months after the receipt of the money, met by his master in Nottingham, and on being asked by him re- specting the two sums of money, said he was sorry for what he had done — that he had spent the money :— Held, that there was evidence to go to the jury of an embezzlement in Notting- ham, and that the prisoner was rightly tried there. Reg. v. Murdoch, 2 Den. C. C. 298 • r, Cox, C. C. 360 ; T. & M. 604 ; 21 L. J., M. C. 22 : 16 Jur. 19. 1 . , An indictment which contains three charges of embezzlement should not only aver that the moneys which are the subject of the charges were received within six months, but should also aver that they were embezzled within six months. Re.g. V. Noalie, 2 C. & K. 620. From whom Money Eeceived.] — In an indict- ment for embezzling money, it is not necessary to state from whom the money so embezzled was received. Rex v. Beacall, 1 C. & P. 313, 454. Exact Sum not Necessary.] — ^Au indictment for embezzling need not have specified the exact sum embezzled. Re.v v. Carson, R. & E. C. C. 303'; S. P., Rex v. Grwce, 1 M. C. C. 447. "Clerk or Servant" or "In the Capacity of Clerk or Servant."] — The secretary of an unenrolled friendly society, who is paid a yearly salary out of its funds, is properly described in the indict- ment as clerk and servant to the trustees, and it would be incorrect to designate him as employed in the capacity of clerk and servant. The latter description only applies where the prisoner is employed on temporally occasions, and aoes not usually fill the situation of clerk or servant. Reg. V. WooUeg, 4 Cox, C. C. 255. Joinder of Counts.] — A count for embezzling bank-notes upon the statute may be joined with a count for larceny. Re.c v. .Johnson, 3 M. & S. 539. Where, in an indictment for embezzlement, there is a second count charging another act of embezzlement within six months from the first, under 7 & 8 Geo. 4, c. 29, s. 48, but alleging the money to be the property of a different person from that mentioned iu the first count, the words connecting the second count with the first may be rejected as surplusage, and the second count dealt with as an independent coimt. Reg, V. Woolley, 4 Cox, C. C. 251. A prisoner was indicted in the first count for embezzlement, and in the second for larceny, as a bailee. After plea pleaded and the jury was charged, and in the course of the trial, it was objected for the prisoner that the indictment was bad for misjoinder of counts. The court over- ruled the objection, and directed the prosecutor to elect upon which count he would proceed, and the prosecutor having elected to proceed upon the second count, the prisoner was found guilty thereon : — Held, that the conviction was right. Reg. V. Ilolman, 9 Cox, C. C. 201 ; L. & C. 451 ; 38 L. J., M. C. 153 ; 10 L. T. 464 ; 12 W. E. 764. Where an iudictment for embezzlement could not be supported because the offence was not an embezzlement but a larceny, and the larceny count stated the larceny to have been committed " in manner and form aforesaid :"■ — Held, that the prisoner could not be convicted. ICe;e v. Murray, 5 C. & P. 145 ; 1 JI. C. C. 276. 7. Trial and Evidence. Venue.] — A clerk, whose duty it was to remit at once to his employers in Middlesex all moneys collected by him as their clerk, collected at York, on the 18th of April, a sum of money as such clerk, but never remitted any portion of it. On the 19th and 20th of April he wi'ote and posted Digitized by Microsoft® Particulars of Charges— Contents.]— If a pri- soner does not know the specific acts of em- bezzlement intended to be charged against him, he should apply to the prosecutor for a particular of the charges : and if it is refused, the judge will, on motion supported by proper affidavits, grant an order for such particular to be given 163 CRIMINAL JuAW— Embezzlement by Clerks and Servants. 164 and postpone the trial, if necessary. Such par- ticular ought at least to state the persons from whom money is alleged to have been received. Rex V. Hodgson, 3 C. & P. 422 ;. S. P., Re.i: v. Jioutyman, 5 C. & P. 300. Jurisdiction to Order,] — The Court of Queen's Bench has no jurisdiction to make an order upon a prosecutor to deliver the particulars. The application should be made to the judge at the assizes. Reg. v. Ilaslam, 1 Jur., N. S. 1139. Evidence that Prosecutor a Trustee of Bank.] — A clerk to a savings bank was convicted on an indictment charging him with embezzlement, the property being laid in A. In order to prove that A. was a trustee of the bank, he was called, and stated that since the commission of the offence he had been acting as a trustee, but that before that date he had attended only one meeting, having on that occasion been requested to do so lest there should be a deficiency of trustees ; but he was also a manager of the bank, and it did not appear that any act was done by him at that meeting which he might not have done as a manager : — Held, that this was insufficient evi- dence of acting to support the inference of the legal appointment of A. as a trustee, and that the conviction was wrong. Reg. v. Essex, Dears. & B. C. C. 36y ; 7 Cox, C. C. 384 ; 4 Jur., N. S. 15. That Prisoner a Servant.] — If a person receives money as steward of another, proof of that circumstance is sufficient evidence of his being a steward, to support an indictment for embezzling such money. Re.x- v. Beacall, 1 C. & P. 312, and Rex v. Wcllings, 1 C. & P. 454, 457. A pereon indicted as servant to guardians of the poor of a parish : — Held, that the admission by him contained in the condition of his bond for the performance of his duties as treasurer, coupled with an act of parliament specifying those duties, was sufficient evidence of the nature of his appointment, viz., that he was to receive money for the guardians, and account to them for his receipts. Reg. v. Welch, 1 Den. C. G. 199 ; 2 C. & K. 296. Admissibility to] Shew Intent.] — An indictment charged the prisoner with having embezzled three sums of twenty-one pounds, the moneys of his employers, he beiag a clerk or ser,- vant. Evidence was given of the embezzlement of those sums, and it was then proposed to give evidence of other sums not charged in the indict- ment, but which had also been embezzled, to shew that if it should be contended the sums charged in the indictment were subjects of a mistake in keeping the accounts, there being many other sums unaccounted for, admitting evi- dence of such sums would assist the jury in deter- mining what value was to be attached to the suggestion : — Held, that such evidence was ad- missible. Reg. V. RichanUoii, 8 Cox, C. C. 448 ; 2 F. & V. 343. A member of a friendly society was employed to receive weekly payments made by other mem- bers, and appropriated certain sums thus paid. Upon the trial, the books of the society were tendered generally in evidence, and received, although it was objected that the evidence ought to be confined to the entries forming the subject Digitized by of the indictment :— Hold, that they were rightly admitted. Meg. v. Proud, 9 Cox, C. C. 22 ; L. & C. 97 ; 31 L. J., M. C. 71 ; 8 Jur., N. 8. 142 ; 5 L. T. 331 ; 10 W. R. 62. — — ■ Whether confined to Days Stated.]— A. was indicted for embezzlement as being a clerk and a servant of B., 0. and D. A first count laid the offence, to wit, on the 18th of August, 1861. A second count laid a second act of em- bezzlement withm six months, to wit, on the 1st of September. A third count laid a third act of embezzlement, also within six months, under the same videlicet. A. was a member of, and secre- tary to, a properly certified friendly society, of which B., C. and D. were the trustees, and had, from time to time, received, though not in his capacity of secretary, funds belonging to the society, some part of which he had appropriated ; — Held, that the evidence of the acts of embezzle- ment need not to be confined to the days stated under the videlicets. lb. To Shew that Cheque Cashed.] — An indictment for embezzling money under 24 i; 25 Vict. c. 96, s. 68, is not proved by shewing merely that the prisoner embezzled a cheque, without evidence that he has converted the cheque into money. Reg. v. Kectia, 1 L. B,., C. C. 113 ; 37 L. J., M. C. 43 ; 17 L. T. 515 ; 16 W. E. 375 ; 11 Cox, C. C. 123. Sufficiency of Evidence.] — A conductor of a tramway car was charged with embezzling 3.«. It was proved that on a certain journey there were fifteen threepenny fares and twenty-five twopenny fares, and the conductor was seen to give tickets to each fare and to receive money from each, but what sum did not appear. He made out a way-bill for the journey debiting himself with only nine threepenny fares and six- teen twopenny fares. The mode of accounting was to deliver the way-bills for each journey to a clerk, and to hand him all the money received during each day on the following morning. The prisoner's money should have been 'il. \s. 'id., ac- cording to his way-bill for the day, but he paid in only' 3?. Os. "id. :— ^Held, that there was sufficient evidence of the receipt of Ts. \\i., the total amount of fares of the particular journey, and of the embezzlement of 'is. part thereof. Reg. V. Mng, 12 Cox, C. C. 73 ; 24 L. T. 670. To support a charge of embezzlement against the secretary of a company, whose duty it was to receive moneys and pay wages, 4:c., out of the moneys, and to account for the balance, proof must be given of a specific appropriation of a particular sum of money. Req. v. Wolstcnliolmc, 11 Cox, C. C. 313. Upon the trial of an indictment under 2 & 3 Will. 4, c. 4, s. 1, charging that A., being in- trusted by virtue of his employment in the public service with the receipt and custody of certain money, the property of the crown, did fraudulently and feloniously apply the same to his own use, it was proved that A., being a receiver of taxes, had kept in his own hands a balance very much exceeding that which he was allowed to retain ; and upon being asked whether he was prepared to pay over that balance or any part of it, he replied that he was not. Be was then reminded that there was a balance of excise duties alone of about SOOl. standing against him from the previous Monday IVIicrosoft® 165 CRIMINAL LAW — Embezzlement and Frauds by Agents, dec. 166 which was a receipt-day at a particular place in bis district. He then produced 255^., and said that was all he had in the world ; and that the rest he had spent in an unfortunate speculation : — Held, that there was evidence of the receipt of a particular sum of 3002. by vii-tue of his employ- ment, and of a misapplication by him of a part of it ; and that, therefore, the conTiction was right, even if evidence of a general deficiency on a balance of accounts would not alone have sup- ported such an indictment. Reg. v. Moah, 7 Cox, C. C. 60 ; Dears. C. C. 626 ; 25 L. J., M. C. 66 ; 2 Jur., N. S. 213. Upon an indictment for embezzling 6.s. it was proved that the prisoner was a drayman in the employment of the prosecutors, who were brewers, and that his duty was to sell porter at a certain fixed price only, viz., 9s. 6d. per dozen. He sold some at 6.?., but did not receive the money for some time. In the interval the customer had informed the prosecutors of the transaction, and they told him to pay the money when the prisoner came for it. The prisoner accordingly received it, and did not account for it : — Held, that the evidence was suificient to support the indictment. Reg. v. Aston, 2 Cox, C. C. 234 ; 2 C. & E. 413. It was the duty of a banking clerk to receive money, and to pay it either into a box or a till, of each of which he kept the key, and to make entries of his receipts in a book ; the balance of each evening being the first item with which he debited himseU in the book the next morning. On the morning of the day in question, he had thus debited himself with 1,762Z. ; and on being called on in the evening by his employer to produce his money, he threw himself on his employer's mercy, and said he was about 900Z. short. Upon an indictment for embezzling : — Held, that this was evidence upon which the jury might convict, although no evidence was given of the persons from whom the money was received, or of the coin of which it consisted. Re.r V. Grove, 7 C. & P. 635 ; 1 M. C. C. 447. It is not enough to prove that a clerk has re- ceived a sum of money and not entered it in his book, unless there is also evidence that he has denied the receipt of it, or the like. Rex v. Jones, 7 C. & P. 833. 'A., a servant of B., was sent to receive rent due to B. ; A. received it, and immediately went off with it to Ireland :— Held, that A.'s thus leaving her place and going off to Ireland, was evidence from which the jury might infer that A. intended to embezzle the money. Rex v Williams, 7 C. & P. 338. 3. Divert II IS, Jlcml/ers, and Officers of Com- panies, 171. 4. Disclosure of Oircwmstanees, 172. 1. AftKNTS AND BANKEES. By ConTersion of Moneys or Securities.] — By 24 & 25 Vict. c. 96, s. 75, whosnerei; liaving been intrusted, either.solely or jointly with any other 2>er.wn, as a banker, merchant, broker, attorney or other agent, with any mimey or security for the payment of money, with any direction i% writing to apply, pay or deliccr such inoiiey or security or any part thereof reS2?ccticely, or the proceeds or any part of the proceeds of such secwity, for any purpose, or to any person specified in such direction, shall, in violation of good faith, and contrary to the terms of such direction, in anywise concert to his own nse or benefit, or the use or benefit of any person other than the person by whom he shall hare been so intrusted, such money, security or proceeds, or any part thereof respectivel'y ; {i'ormer pro- vision, 7 & 8 Geo. 4, c. 29, s. 49.) Written Agreement— Parol Evidence of.] — Where there has been a written agreement between master and servant, in which the nature of the service is defined, on an indictment for embezzlement against the latter, parol evidence of the service is not admissible, unless notice has been given to produce the agreement. Ren. v Clapton, 3 Cox, C. C. 126. XV. EMBEZZLEMENT AND FRAUDS BY AGENTS, BANKERS, TRUSTEES, AND OTHERS. 1. Agents and Rankers, 2. Trustees, 170. 166. By Selling, Negotiating, or Pledging Secari- ties.] — lAnd ichosoerer, haring been intrusted, either solely or jointly loith any other person, as a banker, merchant, broker, attorney or other agent, with any chattel or raluable security, or any power of attorney for the sale or transfer of any share or interest in any p^iblic stock or fund, whether of the United Kingdom , or any part thereof, or of any foreign state, or in any stock or fund of any body corporate, company or society, for safe custody or for any special purpose, -without any authority to sell, negotiate, troMsfer or pledge, shall, in delation of good faith, and contrary to the object or pnrpose for which such chattel, security or power of attorney shall hare been intmsted to him, sell, negotiate, transfer, pledge or in any manner convert to his own use or benefit, or the use or benefit of any person otlier than the person by whom he shall have been so i)itrusted, such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to ivhich such power of attorney shall relate or any part thereof, shall be guilty of a mi.ide- meanor, and bring convicted thereof shall be liable, at the discretion of the court, to be kept ■in penal servitude for any term not c.r-ccedinq seven years and not less than five years (27 & 28 Vict. c. 47), or lo be imprisoned for any term 7iot creeeding two years, with or without hard labour, and with or without solitary confine- ment ^Former prorisions, 7 & 8 Geo. 4, c. 29. ss. 49 50, fl»^ 7 & 8 Geo. 4, c. 27, repealing 52 Geo. 3, c. 63.) By Selling Property or Securities Intrusted to their Care. -By s. IG, whosoever, being a banlier, ITT-,' ''■If"'' ",""''"'-H '"■ <^9i<''nd being intrusted, e'lther solely or jointly irith any other person,with the property of any other person > safe custody, shall, with intent to defraud, sell, negotiate, transfer, pledge, or in any conveH or appropriate the same, or a thereof, to or for his own use or benefit ■use or benefit of any person other than the ner- son by ivhom he was so intmsted, shall be qitiltv 0/ a misdenu-anor. iPormer 2>rovisio}i, 20 & 21 Vict. 0. 54, s. 2.) I " IX. ^1. manner any part benefit, or the Digitized by Microsoft® 167 CEIMINAL LAW — Embezzlement and Frauds by Agents, dc. 168 Acting under Powers of Attorney.]— By s. 77, whosoever, being intrusted, either solely or jointly with any otlwr person, uv'th any power of at- torney for the sale or transfer of any property, ■sJmH fraudtilently sell or transfer or otherwise I'oncert -the same, or any part thereof, to his own use or ieiiefit, or the use or beiiefit of any person other than the person by ichnn he was so intrusted, shall be qiiilty of a misdemeanor. (^Former provision, 20 & 21 Vict. c. 54, s. 3.) Factors fraudulently obtaining Advances on Property of Principals.] — By s. 78, whosoever, being a factor or agent intrusted, either solely or jointly with any other person, for the j'ltr- pose of sale or otherwise, with the possession of any goods or of any document of title to goods, shall, contrary to or without the authority of his pHiieipal in that behalf, for his own use or benefit, or the use or benefit of any person otlier than the person by ivhom he was so in- trusted, and in violation of good faith, mahe any consignment, deposit, transfer, or delivery of any goods or document of title so intrusted to him as in this section before mentioned, as and by way of a pledge, lien or security for anij money or valuable security borrowed or received by such factor or agent at or before tlie time of malting such eoiisignment, deposit, transfer or ilelivery, or intended to be tliereafter borrowed or received, or shall, contrary to or without such authority, for his own use or benefit, or the use or benefit of any person otlwr than tlw jJcrson by whom he was so intrusted, and in violation of good faith, accept any advance of any money or valuable security on the faith of any contract or agreement to consign, deposit, transfer or de- liver any such goods or docunwnt of title, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the eourt, to any of the punishments which the court may award as liereinbefore last mentioned ; And every clerh or otlier person who shall knowingly and wilfully act aiid assist in mahing any such consignment, deposit, transfer or de- livery, or in accepting or proeurin^) such ad- rn/we as aforesaid, shall be guilty of a mis- demeanor, and being convicted thereof, shall be liable, at the discretion of the court, to any of the same punishments : provided, that no such factor or agent shall be liable to any prosecu- tion for coiisigning, depositing, transferring or delivering any such goods or documents of title, in case ilw same shall not be made a security for or subject to the payment of any greater sum. of money than the amou?it which at the time of .such consignment, deposit, transfer or delivery was justly due and owiny to such agent from his princiijal, togetlier with the amount of any bill of e-reliange drawn by or on account of such principal, and accepted by such factor or agent. (Former provision, 5 & 6 Vict. c. 39, s. 6.) Agents Intrusted in Course of Business. ]— The 52 Geo. 3, c. 63, applied only to persons to whom securities were intrusted in the exercise of their function or business. Rex v. Prince, 2 C. & P. ■517. Whilst in treaty with Messrs. G. & P. for the •sale and transfer of a public-house licence, the prisoner was required by them to give security for the purchase-money before they would assist him in procuring a transfer. To enable him to give the required security, the prosecutor ac- cepted three bills of exchange drawn upon him by the prisoner, which the latter was to deposit with G. & P. by way of security, and not nego- tiate or use for any other purpose, and if the transfer was not effected, was to return to the prosecutor. The prisoner, instead of depositing them with G. & P., converted two of them to his own use : — Held, that he was not an agent within s. 75 of 24 & 25 Vict. c. 96, and could not be convicted under.that section. Rea. v. Cesser, 13 Cox, G. C. 187. Where a party established a savings bank, con- sisting of 130 members, each of whom paid a weekly subscription of Is. Id., the odd penny being paid to him for the trouble of managing the affairs of the bank, the funds of which were to be disposed of once a week by a lottery, con- sisting of 129 blanks, and one prize amounting to ISl. which was to go to the liolder of the fortunate ticket : and the defendant having absconded, after receiving from one of the sub- scribers deposits to the amount of 101. Ss., with- out receiving any benefit therefrom : — Held, that he was not indictable under the 52 Geo. 3, c. 63, for embezzling the money as an agent, or as a person ' having the possession of money for safe custody. Re-c v. Mason, D. & E. N. P. 0. 32. A. placed valuable securities in the hands of B., with a written direction to invest the proceeds in the funds, " in case of any unexpected accident happening to A." No accident did happen to A. and the proceeds were by B. converted to his own use : — Held, that B. was not indictable under 52 Geo. 3, 0. 63 (repealed) ; and it seemed that he would not be so under 7 & 8 Geo. i, c. 29, s. 49. Rex V. White, 4 0. & P. 46. Misappropriation of Property Intrusted for Safe Custody to Agent.] — N., a ^solicitor, was intrusted by a client with money to invest on mortgage on the client's behalf ; he, instead of so doing, fraudulently appropriated the money to his own use : — HeM, that N. was not intrusted with such money for " safe custody " within s. 76 of 24 & 25 Vict. c. 96. Reg. v. Newman, 8 Q. B. D. 706 ; 51 L. J., M. C. 87 ; 46 L. T. 394 ; 30 W. E. 5.50 ; 46 J. P. 612. An attorney was employed to raise a loan of money on mortgage, of which he was to employ a part in paying off an earlier mortgage, and to hand over the rest to the mortgagor. He pre- pared the mortgage deed, received the mortgage money, and handed over the deed to the mortgagee in exchange. He then misappropriated a part of the money to his own use : — Held, that no offence had been committed under 24 & 25 Vict. c. 96, s. 75 or 76. Reg. v. Cooper, 2 L. E., G. C. 123 ; 43 L. J., M. 0. 89 ; 30 L. T. 306 ; 22 W. E. 555 ; 12 Cox, C. C, 600. An insurance broker was employed to effect three policies upon a vessel, which he did, advancing the premiums. ' A total loss having occurred the broker received the necessary docu- ments to collect the moneys insured, and there- upon collected the amounts due upon two of the policies, by cheques payable to his order, which he paid into his own bank to his own credit. The premiums advanced by the broker and his commission on effecting the policies and receiving the losses were unpaid to him. The broker on being asked for the moneys after they had been received, said they were not due until a future day, and subsequently made excuses, and did not pay over the sums received on account of the Digitized by Microsoft® 169 CKIMINAL LAW — Emlezzlement and Frauds by Agents, etc. 170 losses to the prosecutor. The jury, in answer to a question left to them, found that the policies had been intrusted to the broker for a special purpose, Yiz., that he should receive the moneys line on them, and forthwith pay them over to the prosecutor. There was no evidence to support such a finding in the case : — Held, that there was a miscarriage, and as the court had no power to direct a new trial, the conviction should be quashed. Meg. v. Tatloch, 2 Q. B. D. 157; 4(5 L. J., M. C. 7 ; 35 L. T. 520 ; 13 Cox, C. C. 328. Trust money having been invested on mortgage, the mortgage was paid off and the money left in the hands of the family solicitor, and was subse- quently appropriated by him : — Held, that this was a fraudulent conversion to his own use of property intrusted to the solicitor for safe custody with s. 76 of 24 & 25 Vict. c. 96. Reg. v. Fnllafiai; 14 Cox, C. C. 370 ; 44 J. P. 57. Sale by Agent after Authority Countermanded.] — If any chattel or valuable security is intrusted to any broker or agent originally for the purpose of sale, but the authority to sell is afterwards countermanded, and the broker or agent, not- withstanding that countermand, sells the goods in violation of the orders of his principal, such broker or agent might be convicted of mis- demeanor, under 7 & 8 Geo. 4, c. 29, s. 49. Meq. V. Gomm, 3 Cox, C. C. 64. Written Direction.] — An indictment on 7 & 8 Geo. 4, 0. 29, s. 49, against a broker for embezzle- ment of a security for money, must have alleged a written direction to him as to the application of the proceeds. Hey. \-. Goldo, 2 M. & Rob. 425. " Direction' in Writing to apply Money."] — Trust money had been invested on mortgage. The mortgage was paid off, and the money left in the hands of the family solicitor, who wrote to the person beneficially interested, "R.'s money was paid on Saturday, the 6th day of April, 2,500Z. and interest Let me know how you would like to have the 2,500Z. invested, whether in the f mids or on mortgage. I can get you 4 per cent, on a good security, but no more. More than 4 per cent, is not to be obtained upon such securities as trustees would be justified in invest- ing." The answer was dated the 9th day of April : " Will consult C. at once about the money, and let you know. I do not wish it placed in the funds. I am very glad it is paid over, and hope it is well secured by this time." At or near the date of these letters it was clear that the money had been fraudulently appropriated to his own use by the solicitor :— QuKre, whether the above letters amounted to a direction in writing to apply the money within s. 75 of 24 & 25 Vict, c. 96. Reg. v. FvUanar, 14 Cox, 0. C. 370 ; 44 J. P. 57. A stock and share dealer was employed by a lady to purchase securities for her. He bought in his own name, and received money from her from time to time to cover the amounts he had paid or had to pay for the securities. Such payments were not made against any particular item, but in cheques for, round sums. On one occasion he wrote to her, " I inclose a contract note for BOOZ., Japanese bonds, at 112, 336Z. ; " and the contract note ran, " Sold to Mrs. S. 300Z. J. at 112, 336?.," and was signed by him. She wrote in reply, " I have just received your note and contract note for the Japanese shares, and inclose a cheque for 336Z. in payment." The dealer never paid for the bonds, but in violation of good faith appro- priated to his own use the proceeds of the cheque :, — Held, that the letter was a direction in writing to apply the proceeds Of the cheque to pay for the bonds, if they had still to be paid for, within the meaning of 24 & 25 Vict. c. 96, s. 75 ; and that he was rightly convicted of a misdemeanor under that section. Reg. v. Christian, 2 L. K., C. C; 94 ; 43 L. J., M. C. 1 ; 29 L. T. 654 ; 22 W. R. 132 ; 12 Cox, C. C. 502. An agent was employed to sell goods on com- mission, and as soon as he received moneys from customers he- was to remit them to his employers. During the employment his employers wrote to him, " We will send H., B., and P. their bills at tlie end of the month, and the same day that you receive the money from the customers you must remit it to us. We will attend to your order, as our arrangements were to remit as soon as you received it, as you said they would not pay much before the 20th of each month" : Held, that this letter was not a direction in writing as to the application or disposition of moneys received by the agent within s. 75 of the 24 & 25 Vict. c. 96. Reg. v. Brownlow, 39 L. T 479. An indictment under 7 & 8 Geo. 4, c. 29, s. 49, against a banker for embezzling a security for money must allege a written direction to him as to the application of the proceeds. Ren. v. Golde 2 M. & Kob. 425. An allegation in an indictment that A. placed valuable seaurities in the hands of B. "with an order in writing to invest the-proceeds in the government funds," is not supported by proof of an order in writing, directing B. to invest the proceeds in the government funds, in case of any unexpected accident happening to A. Rex v. Wvite, 4 C. & P. 46. 2. Teustees. statute.]— By 24 & 25 Vict. c. 96, s. 80, wlw- ■werer, hein^ a tnmtee of any property for the use or benefit, either wholly or ])artially,of some other person, or for any puhlie or c'ltaritaiU- pxu'pose, shall, with intent to defrancl, convert or appropriate the same or any part thereof to or for his own me or henefit, or the tise or heiiefit of any person other than such person as aforesaid,, or for any purpose other than such jnMic or eharitaUe purpose as aforesaid, or othencise dis- pose of or destroy such property or any part thereof, shall he guilty of a misdemeanor : pro- ruled, that no proceeding or prosecution for any offence included in this section shall he commenced: without the sanction of the attorney-general, or, in ease that office he vacant, of the solicitor- general: provided also, that where any civil proceeding shall liare heen tahen against any person to whom, the provisions of iUs section may apply, no person xoho shall hare taken such ercil 2>roceeding shall commence any prosecution under this section without the sanction of the court or judge before whom, such civil proceed- ing sliall have been had or shall be pendinq (^Former pro.vision, 20 & 21 Vict. c. 54, ss. 1 and By s. 1, t?ie term " trustee " shall mean a tm.t- tee on some express trust created by some deed Will or instrument in writing, and shall includc Digitized by Microsoft® 171 CRIMINAL JjAW—Emlezzlement and Frauds hy Agents, dc. 172 tlu- heir, or personal repremitatit-e of any such trustee, and any other person uiwn or to ivhom the duty of such trust shall hare derolred or come, and also an executor and administrator, niid an official manarfer, ussipiee, liquidator, or other like officer acting under any 2Jresent or future act relatinr/ to joint-stock companies. Ixinlirnptcy or ■insolrencii. (Former prorision. 20 & 21 Vict. c. Hi, s. 17.) Who is Trustee.]— A person, who was trustee, treasurer and secretary of a savings bank, was indicted for misappropriation as a trustee. As secretary he received the money deposited, which,^ by the 'rules of the savings bank, it was his duty to hand over to the treasurer, who was required by the Savings Bank Acts to pay it over, when demanded, to the trustees, whose duty, as defined by the rules, was to vest it in the public funds in the names of the commis- sioners for the reduction of the national debt. He falsified his accounts, and appropriated to hia own purposes part of the money so deposited with him as secretary, with intent to defraud :— Held, first, that he was a trustee for the benefit of other persons. licg. v. Fletcher, L. & C, C. C. 180 5 9 Cox, C. C. 189 ; 32 L. J., M. C. 206 ; 8 Jur., N. S. 649 ; 6 L. T., N. S. 545 : 10 W. B. 753. Held, secondly, that there was an express trust created by the rules, although they were made before the appointment of the trustee and the existence of the trust fund. . Ih. Instrument in Writing.]— Held, thirdly, that the rules of the savings bank were an instrument in writing. If/. Indictment — ^Wliose Property.] — A trustee of ■a. friendly society (a lodge of Odd Fellows) was appointed, by resolution of the society, to receive money from the treasurer and carry it to the bank. He received the money, but instead of taking it to the bank, he applied it to his own purposes. He was indicted as a bailee of the moneys of the treasurer E. C feloniously con- verting the money to his own use ; and also for a common-law larceny of the money of K. C. The 18 & 19 Vict. c. 63, s. 18, vests the property of such societies in the trustees, and directs the property to be laid in the names of the trustees in indictments : — Held, that the prisoner could not be convicted of feloniously converting or stealing the iaoneys of E. C. as charged in the indictment. Heff. v. Loose, 8 Cox, C. C. 302 ; 1 Bell, C. C. 259 ; 29 L. J., M. C. 132 ; 6 Jur., N. S. 513 ; 2 L. T. 254 ; 8 W. E. 422. Sanction of Court of Chancery to Proceed- ings.] — The Court of Chancery sanctioned cri- minal proceedings- upon an affidavit, stating that a trustee had paid 1,409?. into his private bankers, had drawn out the whole, with the exception of 28^., and had paid a private debt of 1501. out of the tmst funds. Wadham v. Micfy, 1 Drew. & Sm. 216. 3. DiEECTOES, MEMBBES, AND OFFICERS OP Companies. Fraudulently Appropriating Property.]— By 25 & 26 Vict. c. 96, s. 81, whosocrer, leinfj a director, mcmier or puHic officer of any lody corporate or puhlic company, shall frauduUnthi talie or apply for his oivn use or benefit, or for any use or pn eposes other than the use or mir- poses of such Imdy corporate or puMic company any of the property of such lody corporate or pulilic company, shall be (/iiilty of a misde- meanor. Keeping Fraudulent Accounts.] — By s 82 whosflcfcr, being a director, public officer or manager of any body corjmratc or public com- pany, shall, as such, reeeiee or possess himself of any of the property of such body corporate or pulilie company otherwise tlian in pay me nt of a jnst deijt or demand, and shall, with intent to defraud, omit to make or to cause or direct to lie made a full and true entry thereof in the boohs and aeco-unts of such body corporate or pulilie company, shall be gvilty of a misde- meanor. Destroying, Altering, Mutilating, or Falsify- ing Books.]— By s. 83, whosoever, being a direc- tor, manager, public officer, or member of any body corporate or public company, shall, loith intent to defraiid, destroy, alter, mutilate or falsify any- book, paper, writing or raluaUe security belonging to the body corporate or pub- lic company, or make or concur in the making of any false entry, or omit or concur in omittinr/ any material particular, in any book of account or other document, shall be guilty of a misde- meajior. Publishing Fraudulent Statements.] — By s. 84, whiisoerer, being a director, manager, or pub- lie officer of any body corporate or public com- pany, shall make, circulate or jmblish, or concur in ntnhing, circulating or2>ublishing, any written xtatement or account lohich he shall knoio to be false in any material particular, with intent to deceire or defraud any member, shareholder, or creditor of such body corporate, or public company, or with intent to induce any person to become u, shareholder or partner therein, or to intrust or adrance any property to such body corjyorate or public company, or to enter into any security for the benefit thereof, shall be guilty of a misdemeanor. 4. DiSCLOSUEE OP Ciecumstancbs. statute.] — By 24 & 25 Vict. c. 96, s. 85, nothing in any of the last ten preceding sections of this act contained shall enable or entitle any person to refuse to make a full and complete discotery by answer to any Mil in equity, or to answer any question or interrogatory in any civil proceeding in any court, orupon the heari7ig of any matter in banlii'iiptcy or insolrency ; and no person shall be liable to be emirieted of any of the misdemeanors in any of the said sections mentioned by any evidence lohaterer in respect of any act done by him, if he shall at any time previously to his being charged urith such offence hare first disclosed such act on oath, in conse- ipienec of any compulsory j'roeess of any court of law or equity, in any action, suit or proceed- ing which shall have been bona fide instituted by any party aggriered, or if he shall hare first disclosed the same in any compulsory exami- nation or deposition before any court, upon the hearing of any matter in banki-uptcy or insol- vency. (^Former provisions, 7 & 8 Geo. 4, c. 29, Digitized by Microsoft® 173 CEIMINAL LAW — False Pretences and Cheats. 0. 52 ; 5 & 6 Vict. c. 39, s. 6, and 20 & 21 Vict, u. 54, s. 11.) In what Cases Applicable.] — Semble, a dis- closure of any illegal act to which the statute relates must, to be rendered available as a pro- tection, be made boni fide, and must not be a mere voluntary statement made for the express purpose of screening the person making it from the consequences of his acts. Straluin, Paul and Bates, In re, 7 Cox, C. C. 85. An agent intrusted with a bill of lading, with- out authority of his principals, and in violation of good faith, deposited it with bankers for his own benefit, as a security for advances. He was charged with this offence before a magistrate. The depositions which were taken in support of the charge contained ample evidence to support it. Having become bankrupt, he was taken by his creditors and examined respecting the sub- ject-matter of the charge before a commissioner in bankruptcy, and then made a statement in every respect in accordance with the evidence in the depositions. He was afterwards indicted on the same charge. On the trial, his examina- tion in bankruptcy was offered by him as a defence, as shewing that he had disclosed the act before a commissioner in bankruptcy pre- viously to being indicted for the offence, and that therefore he was not liable to conviction, by virtue of 5 & 6 Vict. c. 39, s. 6. This evidence of a disclosure was held to be admissible under not guilty. Reg. v. Slteen, Bell, C. C. 97 ; 8 Cox, C. C. 143 ; 28 L. J., M. C. 91 ; 5 Jur., N. S. 151 ; 7 W. R. 255. The majority of the court was, however, of opinion, that as the agent only stated before the commissioner matter which had been previously known, and previously proved before the magis- trate, he had not made any disclosure within the meaning of the statute, and consequently was not entitled to protection. The minority held, that as the statement of the agent was obtained on a compulsory examination, instituted bonS, fide by the creditors for their own interest, it was a disclosure before a commissioner within the act, notwithstanding the previous publicity of the matter there inquired into. IT). XVI. FALSE PRETENCES AND CHEATS. 1, 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Statute, General Prineipl,i:i, 174.' In Suspect of what Chattels or Seeuritles, 182. As to Quantity or Weight of Articles of Merehanilize, 183. As to Quality or Value of Articles of Merchandize, 184. By Promises of Marriage, 186. Representations as to Business, 187. Arising out of Contracts, 188. By Means of False Orders, 189. By Means of False Accounts, 191. By Means of Clieques, Bills of Exchange, or Promissory Notes, 193. Inducing Persons by Fraud to Execute or Destroy Valuable Securities, 195. By Passing off Flask or Worthless Bank- notes, 196. Cheats, 198. Amounting to Larceny, 199, 16. Indictment. a. Parties Indictable, 199. *. Form and Contents of, 200. 17. Evidence. 20S. 18. Venue, 209. 19. Bcceiring Property obtained Pretences, 210. 20. Effect of False Pretences on '211. 174 by False Contracts, 1. Statute. By 24 & 25 Vict. c. 96, s. 88, whosoever shall by any false pretence obtain from any other person any chattel, money or valuable security, with intent to defraud, shall be guilty of a mis- dcmeiinor, and being convicted tliereof sluUl be liable, at the discretion of the court, to be hcpt in penal servitude for the term of three years, or to be imprisonAid for any term not ej^ceeding ticn years, iwith or without hard labour, and with or icithout solitary confinement, (^Previous enactment, 7 & 8 Geo. 4, c. 29, s. 53, repealed by 24 & 25 Vict. c. 95.) Prorided, that if upon the trial of any person indicted for such misdemeanor it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not by rcasoji thereof be entitled to be acquitted of such misdemeanor ; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny uponthe same facts. By 24 & 25 Vict. c. 96, s. 89, whosoever shall by any false pretence cause or procure any money to be paid, or any chattel or valuable security to be delirered to any other person for the use or be^iefit or on account of the person mailing such false pretence, or of any other per- son, with intent to defraud, shall be deemed to hate obtained such money, chattel, or valuable security with in the mean ing of the last preceding section. 2. Geneeal Principles. Existing Fact — What is.]— The prisoner obtained money by representing that he was collecting information for a new county directory that W. & Co. were getting up, and that by paying one shilling the prosecutor could have his name inserted in large type, and would re- ceive other advantages. There were several similar charges. W. & Co., an existing firm, were now getting up a new county directory, and the prisoner was not employed by them to can- vass or collect information. The prisoner's do- fence before the magistrate (in evidence at the trial) was, that he was going to bring out a directory, and that he was not aware he was doing wrong in using the name of W. & Co. At the trial the prisoner's counsel urged that there was no misrepresentation of any existing fact, but only a promise to do, something in future :— Held, that this was a misrepresentation of an existing fact. Beg, v. Speed, 15 Cox, C. C. 2J ; 46 L. T. 174; 46 J. P. 451. See Reg. v. Woolley, 3 C. & K. 98 ; 1 Den. C. C. 559 : T & M. 279 ; 4 New Sess. Cas. 341 ; 4 Cox, C. C 191 • 19 L. J., M. C. 165 ; 14 Jur. 465. The defendant was convicted of attempting to obtain money upon the false pretence that he had power to communicate with the spirits of deceased Digitized by Microsoft® 75 CRIMINAL LAW — False Pretences and Cheats. 176 and other persons, although such persons were not present In the place where he then was ; and also that he had power to produce and cause to be present, such spirits as aforesaid in a material- ized or other form ; and also that divers musical instruments, by the sole means of such spirits so caused to be present, produced musical and other sounds : — Held, that the defendant was thereby charged with falsely pretending an existing fact ; and that the indictment so alleging the false pretence was good and valid within 21 & 25 Vict. c. 96. Meg. v. Lawrence, 36 L. T. 401. Although to constitute the statutable ofEence of obtaining money by means of false pretences the pretence must be false at the time : Semble, it need not necessarily be of some alleged existing fact, capable of being disproved by positive testimony, but may depend on the bona fide intention and willingness of the defendant at the time of enter- ing into a contract to perform it, or to do some act at a f ature period. Rsg. v. Joiies, 6 Cox, C. C. 467. The prosecutor lent lOZ. to the prisoner on the false pretence that he was going to pay his rent, and it the prisoner had not told him that he was going to pay his rent, the prosecutor would not have lent the money : — Held, that this was not a false pretence of any existing fact to warrant a conviction. Reg. v. Zee, 9 Cox, C. C. 304 ; L. & C. 309 ; 8 L. T. 437 ; 11 W. R. 761. To have constituted an ofEence within 30 Geo. 2, c. 24, s. 1, money or goods must have been ob- tained by a false pretence with an intention to defraud ; but the pretence might have related to a future transaction. Be,v v. Young, 1 Leach, C. C. 505 ; 2 East, P. C. 82, 833 ; 8 T. R. 98. Combined with Future Promises.] — Where an indictment charges a false pretence of an existing fact calculated to induce the confi- dence which led to the prosecutor's parting with his property, though mixed up with false pre- tences as to the prisoner's future conduct, it is sufficient. Reg. v. Bates, 3 Cox, C. C. 201. Where the false pretence is as to the status of the party at the time, or as to any collateral fact supposed to be then existing, it will equally sup- port an indictment. lb. A false pretence as to an existing, essential fact will sustain an indictment for obtaining money by false pretences, although it is united with false promises, which alone would not have supported the conviction. Reg. v. Jennisnn, L. & C. 157 ; 9 Cox, C. C. 158 ; 81 L. J., M. C. 146 ; 8 Jur., N. S. 442 ; 6 L. T. 256 ; 10 W. R. 488. Money was obtained by the prisoner from an unmarried woman on the false representations that he was a single man, and that lie wrould furnish a house with the money, and would then marry her :— Held, that the false representation of an existing fact (that he was a single man) was sufficient to support a conviction for false pretences, although the money was obtained by that representation, united with the promise to furnish a honse and then marry her. lb. A fraudulent misrepresentation of an existing matter of fact, accompanied by an executory pro- mise to do something at a future period, as that the prisoner had bought certain skms, and would sell them to the prosecutor, is a false pretence within the statute, although it appears that the promise, as well as such misrepresentations o± fact, induced the prosecutor to^part with the money. Reg. v. West, Dears. & B. C. C. o7o ; 8 Digitized by Microsoft® Cox, C. C. 12 ; 27 L. J., M. C. 227 ; 4 Jur., N. S. 514. . A. was indicted for obtaining goods by false pretences. He obtained the goods from the pro- secutor by pretending that he wanted them for S., whom he represented as living at N., and being a person to whom he would trust 1,000?., and who went out twice a year to New Orleans to take goods to his sous. The jury found that all these repre- sentations were false, and that the prosecutor, believing that A. was connected with S., and employed by him to obtain the goods, contracted with A., and not with the supposed S., and delivered the goods to A. for himself, and not for S. : — Held, that A. was rightly convicted. . Beg. V. Arclver, Dears. C. C. 449 ; 6 Oox, C. 0. 515 ; 3 C. L. R. 623 ; 1 Jur., N. S. 479. An attorney, who had a^jpeared for a person who was fined 21. on a summary conviction, called on a person's wife and told her that he had been with another person, who was fined 2Z. for a like ofience to Mr. B. and Mr. L., and that he had prevailed upon Mr. B. and Mr. L. to take 11. instead of 21., and that if she would give him \l. he would go and do the same for her. .She gave the attoruey a sovereign, and afterwards paid him for his trouble. It was proved that the attorney never applied to either Mr. B. or Mr. L. respecting either of the fines, and that both were afterwards paid in full ; — Held, that he was guilty of obtaining money by false pre- tences. Rex V. Asterley, 7 0. & P. 191. A defendant was tried upon an indictment for obtaining money by false pretences, in which it was alleged that she had represented that she kept a shop, and that the prosecutrix might go and live with her till she got a situation. It was proved that the defendant did not keep a shop, and the prosecutrix stated that she lent the defendant the money because the latter had said that she kept the shop, and that she, the prosecu- trix, should have the money when she got home with her. The jury returned a special verdict, finding the defendant guilty of fraudulently obtaining the money, the prosecutrix parting with it under the belief that the defendant kept a shop, and that the prosecutrix should have it when she went home with her :— Held, that the defendant was properly convicted of obtaining money by false pretences. Reg. v. Fi'y, Dears. & B G C. 449 ; 7 Cox, C. C. 894 ; 27 L. J., M. C. 68 ; 4 Jur., N. S. 266. Express Words not Necessary.]— It is not necessary that the false pretences should be made in express words, if it can be inferred from all the circumstances attending the obtammg of the property. Reg. v. Gile^, }-■ & C 502; -10 Cox, C. C. 44 ; 34 L. J., M. C. 51 ; 11 Jur., N. S. 119 • 11 L T.643; 13 W. R. 327. Hewers and putters in a colliery had tokens difEerently marked, which they placed on the tubs of coal drawn up the pit, and which were then taken off and put into a box, and their wages ^tt,vi.ted according to the number of tokens ?pit un bv them The putter fetched the empty^ ub to^thJ&, and fook it when fall to the fo+in^ t/i bp drawn up to the bank ; before the 177 CKIMINAL LAW— FaZse Pretences and Cheats. 178 putter's token after the tub was brought to him and substituted one of his own, and then put an additional token of his own for hewing and iilling the tub. The tub was then drawn up, and the two tokens thrown into the box. The contents of the box were then taken away by the tokenman, and the accounts of the different workmen made up according to the number of tokens found with their initials on. In that way the hewer obtained money for hewing and filling two tubs of coal instead of one only : — Held, that this amounted to an indictable false pre- tence. Meg.Y. Hunter, 10 Cox, C. C. 642 ; 17 L. T. 321 ; 16 'W. R. 342. A., employed in a tannery, clandestinely removed certain skins of leather from the ware- house to another part of the tannery, for the purpose of delivering them to the foreman and getting paid for them as if they had been his own work : — Held, that this did not amount to larceny, but to an attempt to commit the misde- demeanor of obtaining money by false pretences. Beg. V. Holloway, 1 Den. C. C. 370 ; T. & M. 48 ; 3 New Sess. Gas. 410 ; 2 C. & K. 942 ; 18 L. J., M. C. 60 ; 13 Jur. 86. If a person at Oxford, who is not a member of the University, goes to a shop for the purpose of fraud, wearing a commoner's cap and gown, and obtains goods ; this appearing in a cap and gown is a sufficient false pretence to satisfy the statute, although nothing passes in words. Rex v. Bar- nard, 7 C. & P. 784. The prisoner, on entering the service c^f a railway company, signed a book of rules, a copy of which was given to him. One of the rules was, " No servant of the company shall be en- titled to claim payment of any wages due to him on leaving the company's service until he shall have delivered up his uniform clothing." On leaving the service he Imowingly and fraudu- lently delivered up, as part of his uniform, to an officer of the company, a great coat belongirig to a fellow servant, and so obtained the wages due to him : — Held, that he was properly convicted of obtaining the money by false pretences. Beg. V. Bull, 13 Cox, C. C. 608 ; 36 L. T. 376. it was a false pretence within 30 Geo. 2, c. 24, s. 1, where the prisoner obtained money from the keeper of a post-office, by assiiming to be the person mentioned in a money order, which he presented for payment, though he did not make any false declaration or assertion in order to obtain the money. Bex v. Story, E. & E. C. C. 81. When Prosecutor knows Pretences are False — Attempt to Obtain.] — The prisoner wrote a begging letter to the prosecutor, in which, by certain false statements, he attempted to obtain money. The prosecutor sent the prisoner five shillings, but stated at the trial that he knew the pretences were false : — Held, that he might be convicted of an attempt to obtain money by false pretences. Beg. v. Hensler, 11 Cox, C. C .570 ; 22 L. T. 691 ; 19 W. E. 108. See also Beg. V. KeigUey, Deai-s. & B. C. C. 145 ; 7 Cox. C. C 217. An indictment for obtaining money by false pretences cannot be sustained, if the prosecutor when he parted with his money knew the repre- sentation to be false. Beg. v. Mills, 7 Cox, C. C. 263 ; Dears. & B. C. C. 205 ; 26 L. J., M. C. 79 : 3 Jur., N. S. 447. The defendant represented to the prosecutor that he had done a certain quantity of work, and claimed a certain sum as due to him in respect of such work. The prosecutor paid him the amount claimed, although he knew that the re- presentation was untrue :— Held, that this was not an obtaining money by means of false pre- tences. JS. When Prosecutor might have known Pretence was False.] — ^A false pretence must be the false pretence of an existing fact, and if the person to whom it is made is defrauded by it, it makes no difference that he might have known that the pretence was false, or that it is not such a pre- tence as would be likely to defraud a person of ordinary caution. Beg. v. Woolley, 3 C. & K. 98 ; 4 Cox, C. C. 191 ; 1 Den. C. C. 559 ; T. & M. 279 ; 4 New Sess. Cas. 341 ; 19 L. J., M. C. 165 ; 14 Jur. 465. Therefore, where A., the secretary of a lodge of Oddfellows, told B., a member of the lodge, that he owed the society 13s. ^d., when in fact B. only owed 2s. 3d. ; and A., by this false pre- tence, obtained the money of B. : — Held, that this was an obtaining of money by false pretences. lb. When too Eeinote.] — The prisoner was charged with obtaining a prize in a certain swimming race by false pretences. He obtained his competitor's ticket for the race by representing himself to be member of a certain club, and by a letter pur- porting to be written by the secretary of that club. On the faith of these representations, which turned out to be false, he was allowed twenty seconds' start in the race, and won the prize : — Held, by the Common Serjeant, after consulting Stephen, J., that the false pretences were too remote, and that the count charging them could not be sustained. Beg. v. Larner, 14 Cox, C. C. 497. An indictment alleged that the defendant falsely pretended that he had a lot of trucks of coal at a railway station on demurrage, and that he required forty coal bags. The evidence was that he saw the prosecutor and gave him his card, "J. Willot & Co., timber and coal mer- chants," and said that he was largely in the timber and coal way, and inspected some coal bags, but objected to the price. The next day he called again, shewed the prosecutor some correspondence, and said that he had a lot of trucks of coal at the railway station under demuiTage, and that he wanted some coal bags- immediately. The prosecutor had only forty bags ready, and it was arranged that the defen- dant was to have them, and pay for them in a week. They were delivered to the defendant^ and the prosecutor said he let the defendant have the bags in consequence of his having the truclcs of coal under demurrage at the station. There was evidence as to his having taken premises, and doing a small business in coal, but he had no- trucks of coal on demurrage at the station. The jury convicted the defendant : — Held, that the false pretence charge was not too remote to support the indictment, and that the evidence was sufficient to sustain it. Reg. v. Willot, 12 Cox, C. C. 68 ; 24 L. T. 758. When a contract has been entered into by reason of false representations, and goods or money obtained under the contract, it is too re- ^mote to charge the obtaining of the goods or money by the false pretences. B,en. v. Bn/an, 2F. &F. 567. .1 J y Digitized by Microsoft® 179 CKIMINAL 1.A.W— False Pretences and Cheats A., by means of false pretences, ongao'cd with the prosecutrix for lodging at 10*. a week. He accordingly became a lodger in her house, and a tew days afterwards expressed a wish to become a boarder. He was then supplied with board as well as lodging at IZ. U. per week. He was afterwards indicted for " obtaining goods (the boai-d) by means of false pretences, and con- victed :— Held, that the conviction could not be supported, as the goods were supplied too re- motely from the false pretence. Reg.v. Gardner Dears. & B. C. C. 40 ; 7 Cox, C. C. 136 ; 25 L. J. M. C. 100 ; 2 Jut., N. S. 598. Obtaining Gift of Money.]— Obtaining a gift of money by means of false statements is obtain- ing money by false pretences. Reg. v. Jones, T & M. 270 ; 4 New Sess. Gas. 333 ; 1 Den. C. C 551 ; 3 C. & K. 346 ; 4 Cox, C. C. 198 : 19 L. J., M. C. 162 ; 14 Jur. 533. A begging letter, making false representations as to the condition and character of the writer, by means of which money is obtained, is a false pretence. Ih. Intention to Pay for Goods when able.] The crime of obtaining goods by false pretences is complete, although at the time when the pri- soner made the pretence, and obtained the goods, he intended to pay for them when it should be in his power to do so. Reg. v. Naylor, 1 L. R., C. C. 4 ; 35 L. J., M. C. 61 ; 11 Jur., N. S. 910 ; 13 L. T. 381 ; 14 W. R. 58 ; 10 Cox, C. C. 151. Question on whose behalf Goods Ordered.] — Where a prisoner, being employed at a hospital, wrote to the prosecutor, as manager, for a small quantity of linen, not saying it was for the hos- pital, and in point of fact he was not manager, and the goods were really ordered for himself, but not sent, on an indictment for an attempt to obtain them, the question left to the jury was, whether he ordered the goods as for and on be- half of the hospital or in his own name, there being no evidence of an intention to pay cash, but evidence of its absence. Reg. v. Pranldiyi, 4 F. & F. 94. Prosecutor Laying Trap for Prisoner.] — If a party obtains money by a false pretence, knowing it to be false at the time, it is no answer to shew that the party from whom he obtained the money laid a plan to entrap him into the commission of the offence. Rex v. Adij, 7 C. & P. 140. Intention to Permanently Deprive Owner of Chattel.] — To constitute an obtaining by false pretences, it is essential that there should be an intention to deprive the owner wholly of the property in the chattel, and, consequently, the obtaining by false pretences the use of a chattel for a limited time only, without an intention to deprive the owner wholly of the chattel, is not an obtaining by false pretences within 24 & 25 Vict, c. 96, s. 88. Reg. v. Klllmm, 1 L. E., C. C. 261 ; 39 L. J.. M. C. 109 ; 22 L. T. 625 ; 18 W. R. 9.57 ; 11 Cox, C. C. 561. With what Object.] — To constitute the offence of obtaining any chattel, money, or valuable se- curity by false pretences, the obtaining must be in accordance with the wish, or for the advan- tage, or for the purpose of effecting some object 180 of the party making the false pretence. Req v Garrett, Dears. C. C. 232 ; 6 Cox, 0. 260 ■ 2 C. L. R. 106 ; 23 L. J., M. C. 20 ; 17 Jur. 1060 Held, that an indictment for obtaining it by falsely pretending that he was sent for it by W. could not be sustained. Req. v. Broolis, 1 P. & F. 502. ' Property parted with by reason of Induce- ment Charged.] — ^A prisoner was charged with obtaining a filly by the false pretence that he was a gentleman's servant, and had lived at Brecon, and had bought twenty horses in Brecon fair. It appeared that . he bought the filly of the prosecutor for X\l., making him this statement, which was false, and also telling him that he would come down to the Cross Keys and pay him. The prosecutor stated that he parted with his filly because he expected the prisoner would come to the Cross Keys and pay him, and not because he believed that the prisoner was a gentleman's servant : — Held, that if the prosecutor did not part with his filly by reason of the false pretence charged, or any part of it, the prisoner must be acquitted. Rex v. Dale, 7 C. & P. 352. Sufficiency and Character of Palse Pretence.] — An indictment charged that the prisoner falsely pretended that he had got a carriage and pair, and expected it down to T. that day or the next, and that he had a large property abroad. The evidence was that he was at E., assuming to be a man of position and wealth, but was in a destitute condition, and could not pay his hotel and other bills ; and that three days afterwards he came to T. and induced the prosecutor to part with goods on the representation that he had just come from abroad, and had shipped a large quantity of wine to E. from England, and expected his carriage and pair to come down, and that he had taken a large house at T. and was going to fur- nish it : — Held, that the false pretences charged were sufficient in point of law, and also that the evidence was sufficient to sustain a conviction, Reg. V. Howarth, 11 Cox, C. C. 588 ; 23 L. T. 503. A money-lender having a claim for a small sum against a borrower for money lent and high interest, caused an attorney to issue process for a sum double the amount, making up the differ- ence by items charged on various pretences, and after receiving payment from a third party of the sum lent, so that only a sum of bl. remained due for interest, still prosecuted the suit for the whole amount indorsed on the process, and then tried to get from the debtor a charge on property of far greater value, and represented to the third party that the whole sum claimed was really due. The money-lender and the attorney being indicted for attempting to obtain money from the third party by means of false pretences, it was held, that there was a case for the jury; and that if the jury believed the two combined together to enforce by legal process payment of sums they knew not to be due, and falsely repre- sented them to be due, in order to obtain pay- ment, they were liable to be convicted, as they accordingly were. Reg. v. ToA/lor (No. 1), 15 Cox, C. C. 265. H 2 Digitized by Microsoft® 181 CEIMINAL IjAW— False Pretences and Cheats. 182 On a motion for a new trial on behalf of two defendants, an attorney and his client, indicted for attempting to obtain money by false pre- tences, there being evidence that they combined together to enforce, by means of the abuse of legal process, payment of sums they must have known not to be due, and also made false repre- sentations with that object : — Held, that there was evidence for the jury on the charge, that a direclion to the jury that if they were satisfied of these facts they ought to convict was correct, and that the conviction, therefore, was right. Jleg. V. Taylor (No. 2), 15 Cox, C. C. 268. The prosecutor lent money to the prisoner at interest, on the security of a bill of sale on fur- niture, a promissory note of the prisoner and another person, and a declaration made by the prisoner that the furniture was unencumbered. The declaration was untrue at the time it was handed to the prosecutor, the prisoner having a few hours before given a bill of sale for the furniture to another pereon, but not to its full value :— Held, that there was evidence in sup- port of a charge of obtaining money by false pretences. Eeg. v. Mcakin, 11 Cox, 0. C. 270 ; 20 L. T. 544 ; 17 W. R. 683. A., by falsely representing that a house and some shops had been built upon certain land, obtained from the prosecutor an advance of money. A. deposited the lease of the land, signed an agreement to execute a mortgage and executed a bond as security for the money : — Held, that he was rightly convicted of obtaining money by false pretences. Ueg. v. Burgon, Dears. & B. C. C. 11 ; 7 Cox, C. C. 131 ; 25 L. J., M. C. 105 ; 2 Jur., N. S. 596. A. owed B. a debt, of which B. could not get payment. C, a servant of B., went to A.'s wife and obtained two sacks of malt from her, saying that B,. had bought them of A. C. knew this to be false, but took the malt to B., his master, to enable him to pay himself the debt : — Held, that if C. did not intend to defi'aud A., but merely to put it into his master's power to compel A. to pay him a just debt, C. ought not to be convicted of obtaining the malt by false pretences. Sex v. Williams, 7 C. & P. 354. B. was indicted for having falsely pretended that he was Mr. H., who had cured Mrs. C. at the Oxford Infirmary, and thereby obtaining 5s. with intend to defraud G. P. B. made the pretence, and thereby induced the prosecutor to bTiy,Tit the expense of 5s., a bottle containing something which he said would cure the eye of the prose- cutor's child. It was proved that B. was not Mr. H. : — Held, that this was a false pretence. Reg. V. BloomfieU, Car. & M. 537 ; 6 Jur 224. A person who makes a false pretence of having a power to do something, whether the power is physical, moral, or supernatural, for the purpose of obtaining money or goods, is indictable for false pretences. B^g. v. Giles, L. & C. 502 • 10 Cox, C. C. 44 ; 34 L. J., M. C. 51 ; 11 Jur., N. S. 119; 11 L. T. 643; 13W. R. 327. A pretence that a person would do an act that he did not mean to do (as a pretence to pay for goods on delivery), was not a false pretence within 30 Geo. 2, c. 24, s. 1. Bex v. Goodliall, B. & R. C. C. 461. But pretending to have been intrusted by one to take his horses from Ireland to London, and to have been detained by contrary winds till all his money was expended, was within 30 Geo. 2, c. 24. s. 1. Bex v. Villenenre, 2 Bast, P. C. 830. A pretence to a parish officer, as an excuse for not working, that thepartyhasnot clothes, when he really has, although it induces the officer to give him clothes, was not obtaining goods by false pretences within 30 Geo. 2, c. 24, s. 1. Bex V. Waheling, B. & E. C. C. 504. The offence of obtaining money under false pretences, created by 30 Geo. 2, c. 24, s. 1, was complete only where the money was obtained. Bex V. Buttery, cited 5 D. & E. 616 ; 3 B. & C. 700. It is a false pretence if a carrier obtains the carriage-money by pretending to have delivered the goods and lost the bailee's receipt for them. Bex V. Airey, 2 East, P. C. 831 ; 2 East, 30 ; S. P., Bex V. Coleman, 2 East, P. C. 672. 3. In respect op what Chattels or Securities. Dogs.] — Dogs, not being the subject of lar- ceny at common law, were not chattels within 7 6 8 Geo. 4, c. 29, s. 53. Beg. v. Bolinson. Bell, C. C. 34 ; 28 L. J., M. C. 58 ; 5 Jur., N. S. 203 ; 32 L. T. 502 ; 7 W. E. 203. Valuable Security.] — G., secretary to a burial society, was indicted for falsely pretending that a death had occurred, and so obtaining from the president an order on the treasurer in the follow- ing form : " Bolton United Burial Society, No. 23. Bolton, September 1st, 1853. Mr. A. Ent- wistle, treasurer ; please to pay the bearer %. Vis., Greenhalgh, and charge the same to the society. Robert Lord, Benjamin Beswick, presi- dent : " — Held, that this was a valuable security uijder 7 & 8 Geo. 4, c. 29, s. 53, as explained by s. 5. Beg. v. Greenlialgk, 1 Dears. C. C. 267 ; 6 Cox, C.' C. 257. Bank Notes.] — Bank notes were not money, goods, wares or merchandises, within 30 Geo. 2, c. 24, s. 1. Bex v. Bill, E. & R. C. C. 190. Bwt 7 & 8 Geo. 4, e. 29, s. 53, extended 30 Geo. 2, c. 24, to persons oitaining, by false pretences, any ■caluablc secttrity^^ Ticket. ] — B. was indicted for obtaining by false pretences from a railway company a printed ticket, \\'ith intent to defraud the com- pany of the same ; the ticket enabled the pri- soner to travel free from B. to H., and was to be given back to the company at> H. : — Held, that the ticket was a chattel within 7 & 8 Geo. 4, c. 29, s. 53, and that the attempt to defraud the company of the same was not affected by the fact of the ticket having to be returned at the end of the journey. Beg. v. Boulton, 1 Den. C. 0. 508 ; 2 C. & K. 917 ; 3 Cox, C. C. 576 ; 19 L. J., M. G. 67; 13 Jur. 1034. Chattel not in Existence at time of Pretence made.]— A conviction for obtaining a chattel by false pretences is good, although the chattel is not m existence at the time of the pretence being made, provided the subsequent delivery of the chattel is directly connected with the false pretence. Beg. y. Martin, I'L. R.. C C 56 • 36 Digitized by Microsoft® 183 CRIMINAL TuXW— False Pretences and Cheats. 4. As TO THE Quantity oe Weight op Abticlbs of Mbeohandize. What is.]— The defendant had contracted with the guai-dians of a poor law union to deliver • loaves of a specified weight to any poor persons bringing a ticket from the relieving officer. The tickets were to be returned by the defendant at the end of each week, with a statement of the number of tickets sent back, whereupon he would be credited for the amount, and the money would be paid at the time stipulated in the contract. The defendant delivered to certain poor people who brought tickets loaves of less than the speci- fied weight, returned the tickets with a note of the number sent, and obtained credit in account for the loaves so delivered, but before the time foT payment had arrived the fraud was discovered : — Held, that the delivery of a less quantity of bread than that contracted for was a mere private fraud, no false weights or tokens having been used, and therefore not an indictable ofEence : that the defendant was properly con- victed of attempting to obtain money, for although he had only obtained credit in account, and could not, thereEore, have been convicted of the ofEence of actually obtaining money by false pretences, yet he had done all that was depending on himself towards the payment of the money, and was therefore guilty of the attempt : and that this was a case within 7 & 8 Geo. 4, c. 29, s. 53, because it was an attempt to obtain money by a false and fraudulent representation of an antecedent fact : it was not a mere sale of goods by a false pretence of their weight. Beg. v. HagletoH, Dears. C. C. 515 ; 6 Cox, C. C. 559 ; 24 L. J., M. C. 158 ; 1 Jur., N. S. 940. . The defendant agreed with the prosecutrix to • sell and deliver to her a load of coals, at a cer- tain price per cwt. He accordingly delivered a quantity of coals, to his knowledge weighing 14 cwt. He, however, falsely and fraudulently re- presented that the quantity he had delivered weighed 18 cwt., and thereby obtained the price of 18 cwt. : — ^Held, that he was properly con- victed of the ofEence of obtaining money by false pretences. Beg. v. Slierwood, Dears. & B. C. C. 251 ; 26 L. J., M. C. 217 ; 3 Jur., N. S. 547. A prisoner was convicted on an indictment for obtaining money by false pretences. The prose- cutors bought of the prisoner and paid him for a quantity of coal, upon a false representation by him that there were 14 cwt., whereas, ii fact, there were only 8 cwt., but so packed in the cart in which they were as to have the appear-, ance of a larger quantity :— Held, that the false representation as to the quantity of coal was an indictable false pretence, and that the conviction was right. Beg. v. Bagg, Bell, C. C. 215 ; 8 Cox, C C. 262 ; 29 L. J., M. C. 86 ; 6 Jur., N. S. 178 ; 1 L. T. 337 ; 8 W. B. 193. If a man is" selling an article by weight, and falsely represents the weight to be greater than it is, and thereby obtains payment for a quantity greater than that delivered, he is indictable for obtaining money by false pretences. Secus, if he is selling the article for a lump sum, and merely makes the false representation as to weight in order to induce the purchaser to con- clude the bargain. Beg. v. Bidgway, 3 F. & F. A false affirmation of the weight of an article sold by weight, with intent to defraud, is m- dictable as a false pretence. Bj^jfj^M'^y Uicm^oW 184 C. 418 ; 9 Cox, C. C. 460 ; 32 L. J., M. 0. 129 ; 10 L. T. 348 ; 12 W. B. 750. Upon indictment for obtaining money by falsely pretending that certain loads of soot weighed certain tons, whereas they did not, the evidence was that the prisoners weighed at a public weighing machine some cart loads of what apparently was soot, but amongst which were bags of old bricks, and having obtained tickets of the weights, subsequently removed the bags containing bricks, and on selling the soot to the prosecutor represented to him that the weight ascribed in the tickets was the weight of what they sold : — Held, that this false representation of the weight was within the statute. lb. An indictment charged, that H. B. having in his possession a certain weight of 28 lbs., did falsely pretend to C. that a quantity of coals which he delivered to C. weighed 16 cwt. (mean- ing 1792 lbs. weight), and were worth 1^., and that the weight was 56 lbs. ; by means of which he obtained a sovereign from C, vrith intent to defi'aud him of part thereof, to wit, 10«.; whereas the coals did not weigh 1792 lbs., and were not worth 11. ; and whereas the weight was not 56 lbs. ; and whereas the coals were of the weight of 896 lbs. only, and were not worth more than 10s. ; and whereas the weight was of 28 lbs. only. It was objected that all the pretences, except that respecting the weight, were false affirma- tions, and that, as to the weight, there was no allegation to connect the sale of the coals with the use of the weight. The defendant was con- victed, and the conviction was held to be wrong. Bej; V. Beed, 7 C. & P. 848. TO THE Quality oe Value of Abticles of Merchandize. Specific Fact stated which is TTntrue.]— The prisoner induced the prosecutor to purchase a chain from him by fraudulently representing that it was 15-carat gold, when, in fact, it was only of a quality a trifle better than 6-carat, knowing at the time that he was falsely repre- senting the quality of the chain as 15-carat gold : — Held, that the statement thatthe chain was 15- carat gold, not being mere exaggerated praise, or relating to a mere matter of opinion, but a state- ment as to a- specific fact within his knowledge, was a sufficient false pretence to sustain an in- dictment for obtaining money under false pre- tences. Beg. V. Ardley, 1 L. E., C. C. 301 ; 40 L. J., M. C. 85 ; 24 L. T. 193 ; 19 W. E. 478 ; 12 Cox, C. C. 23. On an indictment for obtaining money by false pretences, it was proved that the prisoner, a travelling hawker, represented to the prose- cutor's wife that he was a tea-dealer from Leicester, and induced her to buy certain packages which he stated contained good tea, but three- fourths of the contents of which was not tea at all, but a mixture of substances unfit to drink and deleterious to health. The jury found that the prisoner knew the real nature of the contents of the packages, that it was not tea, but a mix- ture of articles unfit tor drink, and that he de- signedly falsely pretended that it was good tea with intent to defraud; and the prisoner was convicted :— Held, that the conviction was right. Beq. V. Foster, 2 Q. B. D. 301 ; 46 L. J., M. C. 128 ; 36 L. T. 34 ; 13 Cox, C. C. 393. A false representation that a stamp on a watch ■ 'all mark of the Goldsmiths' Company, 185 CEIMINAL LAW— J'afee Pretences and Cheats. 186 and that the number 18, part thereof, indicated that the watch was made of 18-carat gold, is an indictable offence, and is not the less so because accompanied by a representation that the watch was a gold one, and some gold was proved to have been contained in its composition. Reg. V. Snter, 10 Cox, C. C. 577 ; 17 L. T. 177 ; 16 W. R. 141. A man went into a pawnbroker's shop in the middle of the day, and laid down eleven thimbles on the counter, saying, " I want 5«. on them ; " the pawnbroker's assistant asked the man if they were silver, and he said they were. The assistant tested them, and found they were not silver, and in consequence did not give the man any money, but sent for a policeman, and gave him into his custody : — Held, that the conduct of the man who presented the thimbles amounted to an at- tempt to commit the statutable misdemeanor of obtaining money under false pretences, and by consequence that if the money had been obtained that statutable offence would have been com- plete. Reg. V. Ball, Car. & M. 249. A. falsely pretended to a pawnbroker that a chain was silver. The pawnbroker lent A. Ws. on the chain, without placing any reliance upon the statement of A., but relying on his own ex- amination and test. The chain was made of a com- position worth about one farthing an ounce : — Held, that he was properly convicted of attempt- ing to obtain money by false pretences, the statement being a false pretence within the statute. Reg. v. Roehvclt, Deare. & B. C. C. 24 ; 7 Cox, C. C. 126 ; 25 L. J., M. C. 101 ; 2 Jur., N. S. 597. A wilful misrepresentation of a definite fact with intent to defraud, cognizable by the senses — ^where the seller, by manoeuvring, contrives to pass off tastere of cheese as if extracted from the cheese offered for sale, whereas it is not — is a false pretence. Reg. v. Gois, Bell, C. C. 208 ; 8 Cox, C. C. 264 ; 29 L. J., M. C. 86 ; 6 Jur., N. S. 178 ; 1 L. T. 337 ; 8 W. R. 193. Knowingly exposing to sale and selling wrought gold under the sterling alloy, as and for gold of the true standard weight, which is indictable in a goldsmith, is a private imposition only in a common person. Rex v. Bower, Cowp. 323. B. was in the habit of selling baking powders, wrapped in printed wrappers, entitled " B.'s Baking Powders," and having his printed signa- ture at the end. The prisoner got printed a quantity of wrappers, in imitation of those of B., only leaving out B.'s signature, and sold spurious powders wrapped up in these labels as. B.'s powders : — Held, that the prisoner was not guilty of forging the wrappers, or uttering forged wrappers, though he might be indictable for the fraud, on a charge of obtaining money by false pretences. Reg. v. Smith, Dears. & B. C. C. 566 ; 8 Cox, C. C. 32 ; 27 L. J., M. C. 225 ; 4 Jur., N. S. 1003. An indictment charged that the defendant knowingly and falsely pretended that a hoi-se was sound, and that he himself was a farmer, at C, negativing both pretences in the usual way. The defendant was convicted, but a case re- served in which, after stating that the various allegations in the indictment were proved, and that the defence was that this was a case of giving a false warranty, and therefore not in- dictable, the question was put, whether the con- viction could be sustained. The court having directed an amendment, the facts proved were set out more specifically ; but it was not stated as a fact that the defendant Imew the horee to be unsound, though evidence' was stated ti'om which that inference might be di'awn ; nor was it slated what direction had been given to the jury :— Held, that, as the case was framed, the conviction must be quashed ; as the court, not knowing what direction had been given, could not answer the question put in the affirmative ; and as it was consistent with the case that the jury might have been told that even if the defen- dant did not know that the horse was unsound, he might be convicted upon the other false pre- tence alone. Reg. v. KeigMey, Dears & B. C. C. 145 ; 7 Cox, C. C. 217. Exaggerated Praise not Sufficient to Consti- tute.] — ^A simple misrepresentation of the quality of goods is not a false pretence, provided the goods are in specie that which they are repre- sented to be. Reg. v. Bryan, Dears. & B. C. C. 265 ; 7 Cox, C. C. 318'; 26 L. J., M. C. 84 ; 3 Jur., N. S. 620. For the purpose of procuring advances of money by way of pledge, a party produced spoons to the prosecutors, who were pawnbrokers, and falsely and fraudulently stated that " they were of the best quality ; that they were equal to Elkington's A ; that the foundation was of the best material ; and that they had as much sUver on them as Elkington's A : " — Held, that the representations being merely as to the quality of the articles, were not false pretences within the statute, as the articles delivered to the pawn- brokers were the same in specie as he had pro- fessed them to be, though of inf&ior quality to what he had stated. lb. On the trial of an indictment for false pre- tences, it was proved that the prisoner offered a chain in pledge to a pawnbroker, and required money to be advanced upon it, representing that it was gold. On being tested it turned out to be a compound of brass, silver, and gold, but the gold was very minute in quantity : — Held, not a false pretence. Reg. v. Lee, 8 Cox, C. C. 233. L. and W. induced the prosecutor to buy certain plated goods at an auction, at which L. was acting as auctioneer, for 71., on the represen- tation that they were the best silver plate, lined with gold, and worth 201. ; the foundation of the goods was Britannia metal, instead of nickel, as in the best goods, covered with a transparent film t)f silver, and they were worth only about 30s. : — Held, that there was no false pretence, and 'that an agreement between two persons to dispose of these goods in the way they were disposed of was not a conspiracy. Rcq. v. Levhie, 10 Cox, C. C. 374. 6. By Promises op Maeeiage. When it Lies.]— An indictment will lie for fraudulently obtaining goods under a pretence of a treaty of marriage. Anon., Lofft. 146. An indictment for obtaining money from H. under the false pretence that the prisoner in- tended to marry H., and wanted the money to pay for a wedding-suit he had purchased, is not sufficient to sustain a conviction. Ren v John- ston, 2 M. C. C. 254. A., obtaining money from the "prosecutrix bv falsely pretending that he was unmarried, that he would furnish a house with the money and would then marry her, is properly convicted of Digitized by Microsoft® 187 CEIMINAL LAW— ii'aise Pretences and Cheats. obtaining money under false pretences. JR^/i. v. JcnnUon, 9 Cox, C. C. 158 ; L. & C. 157 ; 31 L. J., M. C. 146 ; 8 Jur., N. S. 442 : 6 L. T. 256 ; 10 W. R. 488. Evidence.]— The prisoner paid his addresses to the prosecutrix, and obtained a promise of marriage from her, which promise she afterwards refused to ratify. He then threatened her with an action, and by this means obtained money from her. During the whole of the transactions the prisoner had a wife. On an indictment against him for obtaining money under false pretences, the pretences laid were, first, that he was unmarried ; and secondly, that he was en- titled to bring and maintain his action against her for a breach of promise of marriage : — Held, per Lord Denman, C. J., and Maule, J., that the fact of the prisoner paying his addresses was suiEcient evidence for the jury on which they might find the first pretence, that he was a single man and in a condition to marry ; and, per Maule, J., that there was sufficient evidence on which to find the falseness of the other pre- tence, that he was entitled to maintain his action for breach of promise of marriage ; and that such latter false pretence was a sufiicient false pretence within the statute. Heg. v. Copeland, Car. & M. 616. 7. Eepbesentations as to Business. Question for Jury as to Prisoner's Ueaning.] — C. was convicted of obtaining potatoes by falsely pretending that he was then in a. large way of business, that he was in a position to do a good trade in potatoes, and that he was able to pay for large quantities of potatoes as and when the same might be delivered to him. The evidence that C. had so pretended was the following letter written by him to the pro- secutor : — " Sir, — Please send me one truck of regents and one truck of rocks as samples, at your prices named in your letter ; let them be good quality, then I am sure a good trade will be done for both of us. I will remit you cash on arrival of goods and invoice. Yours, &c. — P.S. — I may say if you use me well I shall be a good customer. An answer will oblige saying when they are put on :" — Held, that the words of the letter were fairly and reasonably capable of a construction supporting the pretences charged, and that it was a question for the jury, whether the writer intended the prosecutor to put that construction upon them. Reg. v. Cooper, 2 Q. B. D. 510 ; 46 L. J., M. C. 219 ; 36 L. T. 671 ; 25 W. E. 696. Deposit by Prosecutor as Security.] — On an indictment for obtaining money by false pre- tences, it appeared that the prisoner on engaging an assistant, from whom he received a deposit, represented to him that he was doing a good business, and that he had sold a good business for a certain large sum, whereas the business was worthless, and he had been bankrupt : — Held, that the indictment could not be sustained upon either of the representations. Beg. v. William- son, 11 Cox, 0. C. 328 ; 21 L. T. 444. A prisoner obtained a sum of money from the prosecutor by pretending that he carried on an extensive business as an auctioneer and a house agent, and that he wanted a clerk, and that the money was to be deposited as seciu-ity for the Digitized by Microsoft® 188 prosecutor's honesty as such clerk. The jury found that the prisoner was not carrying on any such business at all :— Held, that this was an indictable false pretence. Reg. v. Oral), 11 Cox, C. C. 85 ; 18 L. T. 870 ; 16 W. R. 732. Prisoner's Knowledge of Conduct of Business.]' — On an indictment for obtaining goods in a market by falsely pretending that a room had been taken at which to pay the market people for their goods, the jury found that the well- known practice was for buyers to engage a room at a public-house, and that the prisoner con- veyed to the minds of tne mariiet people that she had engaged such a room, and that they parted with their goods on such belief : — Held, there being no evidence that the prisoner knew of such a practice, and the case being consistent with a promise only on her part to engage such a room and pay for the goods there, a conviction could not be sustained. Reg. v. Burrows, 11 Cox, C. C. 258 ; 20 L. T. 499 ; 17 W. R. 682. 8. Aeisikg out op Conteacts, Effect of False Pretence on.]— A false pretence knowingly made to obtain money is indictable, though the money is obtained by means of a contract which the prosecutor was induced to make by the false pretence of the prisoner. Reg. V. Abbott, 1 Den. C. C. 273 ; 2 C. & K. 630 ; 2 Cox, C. C. 430 ; S. P., Reg. v. Dark, 1 Den. C. C. 276 ; Reg. v. Kcndrick, D. & M. 208 ; 5 Q. B. 49. Delivering less than Contracted for.] — De- livering less beer in a cask than contracted for as the due quantity is not an indictable ofEence. Rex V. Wheatley, 1 W. Bl. 273 ; 2 Burr. 1129. Nor is delivering less oats than the quantity contracted for as the due quantity. Rex v. 2 Burr. 1130. Previous Sale of Goods Contracted to be Sold.] — If one professes to sell an interest in property, and receives the purchase-money, the vendee taking the usual covenant for title ; and it turns out that the vendor has in fact previously sold his interest in the property to a third person ; this is not sufficient to support an indictment for obtaining money by false pretences. Rex v. Codrington, 1 C. & P. 661. Effect of Ratification of.] — The prisoner pre- tended to sell goods to A. which he pretended to have bought for him from B. ; the goods having been sent by B. to A., the prisoner got the money from A. : — Held, not indictable for ob- taining goods from B. by false pretences. Reg. V. Martin, 1 F. & F. 501. The prisoner, by false and fraudulent repre- sentations made to the prosecutor, as to his business, customers and profits, induced the prosecutor to enter into a partnership with him, and to advance 5002., as part of the capital of the concern ; and the prosecutor, after such advance, recognized and acted upon such partnership : — Held, that this was not an obtaining of money by false pretences. Reg. v. Watson, Dears. & B. C. C. 348 ; 7 Cox, C. C. 364 ; 27 L. J., M. C. 18 ; . 4Jur., N. S. 14. Partnership Accounts.] — The prisoner entered into partnership with the prosecutors, and it was subsequently agreed that he should travel about CEIMINAL LAW— FaZse Pretences and Cheats. 189 the country to obtain orders, and have a com- mission upon all orders he might receive, such commission to be paid to him as soon as he received the orders, and to be payable out of the capital funds of the partnership before dividing any profits. He falsely represented to his partners that he had obtained a certain order, and in consequence was paid his commission thereon : — Held, that this vras «. mere matter of account between the partnei-s, and that the prisoner was, therefore, not guilty of obtaining money by false pretences. Sea. v. Evans, 9 Cox, C. C. 238 ; L. & C. 252 ; 32 L. J., M. C. 38 ; 9 Jur., N. S. 184 ; 7 L. T. 507 ; 11 W. E. 125. For Sale of Non-existent Chattel.]— A prisoner was indicted for obtaining by false pretences a spring-van. By false pretences, he induced the prosecutor to enter into a contract to build and deliver a van for a certain sum of money, and the prosecutor on the faith of those pretences built and delivered the van in pursuance of the original order, although the prisoner counter- manded the order after the building and before the delivery : — Held, that, to bring the case within the statute, it is not necessary that the chattel should be in existence when the false pretence is made, but that the obtaining is within the statute if the pretence is a con- tinuing one, so that the chattel is made and delivered in pursuance of the pretence ; that the question whether the pretence is or is not such a continuing one, is one of fact for the jury, and that here there was evidence from which the jury might infer that it was such a con- tinuing one. Reg. v. Martin, 1 L. E., C. C. 56 ; 36 L. J., M. C. 20 ; 15 L. T. 54 ; 15 W. E. 358 ; 10 Cox, C. C. 383. 9. By Means of False Oedebs. Of Innocent Agent.] — B. was one of many persons employed whose wages were paid weekly at a pay-table. On one occasion, when B.'s wages were due, the prisoner said to a little boy, " I will give you a penny if you will go and get B.'s money." The boy innocently went to the pay-table, and said to the ti-easurer, " I am come for B.'s money ;" and B.'s wages were given to him. He took the money to the prisoner, who was waiting outside, and who gave the boy the promised penny : — Held, that the prisoner could not be convicted on the charge of obtaining the money from the treasurer by falsely pretending to the treasurer that he, the prisoner, had autho- rity from B. to receive his money, or of obtaining it from the treasurer and the boy, by falsely pretending to the boy that he had such authority, or of obtaining it from the boy by the like false pretence to the boy ; but that he might have been convicted on a count charging him with obtaining it from the treasurer, by falsely pre- tending to the treasurer that the boy had the authority from B. to receive the amount. Reg. V. Butcher, Bell, C. C. 6 ; 8 Cox, C. 0. 77 ; 28 L. J., M. C. 14 ; 4 Jur., N. S. 1155 ; 32 L. T., 0. S. 110 ; 7 W. E. 38. Order given ty Person having Authority to Order for Another.] — A surveyor of highways, having authority to order gravel for the roads, ordering gravel as usual, and applying it for his own use, is not liable to a charge of obtaining it by false pretences ; nor for larceny, unless it 190 Reg. appears that he did not mean to pay for it. y.Micliardson, 1 F. & F. 488. Order given without Authority.]— An indict- ment that B. obtained twenty yards of carpet by falsely pretending that a certain persoii who lived in a large house down the street, and had had a daughter married some time back, had. been at him about some carpet, and had asked him to procure a piece of carpet, whereas no such person had been at him about any carpet, nor had any such person asked him to procure any piece of cai-pet. The evidence was that B. obtained twenty yards of carpet by stating to the prosecutor, who was a shopkeeper in a village, that he wanted some carpeting for a family living in a large house in the village who had had a daughter lately married ; that B. afterwards sold the carpeting so obtained to two difilerent per- sons, and a lady was called, who lived in the village, whose daughter was man-ied about a year previously, and who stated that she had not sent B. to the prosecutor's shop for the carpet : — Held, that there was a sufacient false pretence alleged and proved, and that it was sufiaciently negatived by the evidence. Reg. v. Bm-nsides, Bell, C. C. 282 ; 8 Cox, C. C. 370 ; 30 L. J., M. C. 42 ; 6 Jur., N. S. 1310 ; 3 L. T. 311 ; 9W. B. 37. E. was convicted for stealing a cheque. He was a clerk to a savings bank, and received the . cheque from the manager of the bank, upon a false representation that one of the depositors had given notice of withdrawal and for the purpose of handing it over to the depositor. According to the usual course of business, if a depositor could not attend at a proper time to receive the cheque, it was handed to E. as the agent of the depositor : — Held, that the case was one of false pretences and not larceny. Reg. v. Essex, Dears. & B. C. C. 371 ; 7 Cox, C. C. 384 ; 27 L. J., M. C. 20 ; 4 Jur., N. S. 16. An indictment charged that the prisoner was living separately from her husband, and receiving an income from him for her separate maintenance under a deed of separation, which stipulated that he should not be liable for her debte ; and that she falsely pretended to U., a servant of W., that she was living under the protection of her hus- band, and was authorized to apply to W. for goods on the credit of her husband, and that he was willing to pay for them ; and that she wanted them to furnish a house in his occupation. It was proved that on the 4th of August she called at W.'s shop, and on being served by U., selected certain goods, and, being asked for a deposit, said it was a cash transaction, that her husbaad would give a cheque as soon as the goods were delivered. The deed was proved, and it was also proved that the annuity covenanted to be paid by the husband was duly paid ; that the house which she gave as her address, and which was found shut up after the goods had been sent to it, had been taken by her whilst in company with a man with whom she had been living as his wife from the middle of July till the end of August :— Held, that there was abundant evidence to support a conviction Reg. V. Davis, 11 Cox, C. C. 181 ; 19 L. T. 325 • 17 W. E. 127. ' Effect of Forged Order.]— A person who ob- tained goods on delivering a forged letter— " Please to let the bearer, W. T., have for J E four yards of linen," signed J. E., was not ind'ictl Digitized by Microsoft® 191 CRIMINAL l.AW— False Pretences and Cheats. able for obtaining goods by false pretence, as tms was uttering a forged request for the delivery ? -J?,? .' "^^^^^ "^^^ ^ felony under 11 Geo. 4 & IWiU. 4, c. 66, s. 10. Jtcx V. Uvans, 5 C. & P. .103. 10. By Means op False Accounts. Statute.]— By 38 & 39 Vict. c. 24 (which by s. 4 may be cited as The Falsification of Ac- counts Act, 1875), s. 1, 'if any clcrJi, officer- or servant, or miy person employed vr acting in tJie eajMCity of a clerk, officer or servant, shall wil- fully and -with intent to defravd, destroy, alter, ■mtitilate or falsify any book, paper, ivriting, 'valuaUe security or account which hcUmgs to or ■is in the possesHon of his employer, or has been received by him for or on behalf of his employer, or shall wilfully and with intent to difrand, make or C07umr in making any false entry in, or omit or alter, or concur in omitting or altering, any material particvlar from or in any snch book, or a7iy document or account, then in every such case t lie person so offending shall be guilty of a misdemeanor, and be liable to be kept in penal servitude for a term not exceeding seten years, or to be imprisoned with or without hard labour for any term not exceeding two years. By s. 2, it shall be sufficient in any indictment render the act to allege a general intent to de- fraud, without naming any particular person intended to be defrauded. Larger Sum of Money Obtained.]— A work- man, employed by clothiers, was to keep an account of the number of sheai-men employed, and the amount of their earnings and wages, which he was to deliver weekly to a clerk, in writing, who paid him the amount ; he delivered in a false account, charging for more work, and of other men, than was actually done, by which he obtained a larger sum than was actually due : — Held, an obtaining money under false pre- tences, within 30 Geo. 2, c. 24, because without the false pretence he would not have obtained the credit, and it was not like a case of money paid generally on account. Rex v. Mitchell, 2 East, P. C. 830. Part of Total Sum only Appropriated.] — A., the servant of B., rendered an account to B. of 14/. \s. 2d., as due from A. to his workmen, and B. gave A. a cheque for the amount. All that sum was so due except 7s., which A. kept, when he got the cheque cashed, and paid the workmen the residue. In an indictment it was charged that by this false pretence, A. obtained the cheque from B., with intent to defraud him of the same. It was objected, that the intent was only to defraud B. of a part of the proceeds of the cheque. A. was convicted, and the judges held ■the conviction right, and that the evidence sup- poited the count. lieg. v. Leonard, 2 C. & K. 514 ; 1 Den. C. C. 304 ; 3 Cox, C. C. 284. Beceipt Bec[iiired.] — A servant of A. applied to B. for payment of 17«. due from B. to A. B. refused to pay it without A.'s receipt. The servant went away and returned with this docu- ment, whereupon B. paid the d«bt : — -Held, a question for the jury, whether the servant tendered the receipt as the handwriting of A., which would make him liable on this indictment, or as his own, which would make his act a false pretence. & K. 635. Meg. V. Inder. 192 1 Den. C. C. 323 ; 2 C. False Pretences or Larceny. J— It was the prisoner's duty, as bailiff to the prosecutor, to pay and receive moneys. Upon an account rendered of such payments and receipts, it appeared he had charged his master with five payments of \l. 8s., instead of 11. is., the sums he had actually paid. There was also a similar over-charge of two other amounts :— Held, that the prisoner was wrongly convicted of larceny, the offence, if any, being that of obtaining money by false pretences. Beg. v. Green, Deare. C. C. 323; 6 Cox, C. C. 296 ; 2 C. L. E. 603 ; 18 Jur. 158. It was the duty of the prisoner, who was a servant of the prosecutors, in the absence of their chief clerk, to purchase and pay for, on behalf of his master, any kitchen stuff brought to their premises for sale. On one occasion he falsely stated to the chief clerk that he had paid 2s. Sa. for kitchen stuff, which he had bought for his master, and demanded to be paid for it. The clerk on this paid him 2s. 3d. out of the money which his master had furnished him with to pay for the kitchen stuff. The prisoner applied the money to his own use : — Held, that as the clerk had delivered the money to the prisoner with the intention of parting with it altogether, the prisoner was not liable to an indictment for stealing the money, but that he might have been indicted for obtaining by false pretences. Beg. V. Barnes, T. & M. 387 ; 2 Den. C. C. 59 ; 20 L. J., M. C. 34 : 14 Jur. 1123. It was the duty of a servant to ascertain daily the amount of dock dues payable by his master, and, having ascertained it, to apply to his master's cashier for the amount, and then to pay it in discharge of the dues. On one occasion, by representing falsely to the cashier that the amount was larger than it really was, as he well knew, he obtained from the cashier the sum he stated it to be, and then paid the real amount due, and appropriated the difference : — Held, that his offence was not larceny, but obtaining money by false pretences. Beg. v. Thompson, L. & C. 233 ; 9 Cox, C. C. 222 ; 32 L. J., M. C. 57 ; 8 Jur., N. S. 1162 ; 7 L. T. 393 ; 11 W. K. 41. Obtaining Cheque.] — By means of a false wages sheet the prisoner obtained from . his master a cheque for the amount stated in the sheet to pay the men's wages. The cheque was informally drawn, and refused payment by the bank. The prisoner returned it to his master, telling him of the cause of its non-payment, and the master tore it up and gave another, which the prisoner cashed, and appropriated the dif- ference between what was really due for wages and what was falsely stated to be due. On an indictment charging him with obtaining 8s. 6d., the actual sum appropriated by him, it was objected that the above evidence did not prove the charge, for that he had only obtained a valueless piece of paper : — Held, that the false pretence was a continuing one, and that the second valuable cheque was obtained thereby equally with the first, and that the charge was proved. Beg. v. Greathead, 38 L. T. 691. Substitution by Prisoner of Proper Accounts for other Purposes.] — An indictment alleged that the Digitized by Microsoft® 193 CEIMINAL 'LK^— False Pretences and Cheats. 194 prisoner obtained a coat by falsely pretending that a bill of parcels of a coat, value 14s. %d., of which 4s. 6d. had been paid on account, and "that 10s. only was due, was a bill of parcels of another coat of the value of 32s. The evidence was that the prisoner's wife had selected the 14s. 6rf. coat for him, subject to its fitting him, and had paid 4s. 6d. on account, for which she received a bill of parcels giving credit for that amount. On trying on the coat it was found to be too small, and the prisoner was then measured for one to cost 22s. When that was made it was tried on by the prosecutor, who was not privy to the f oi-mer part of the transaction. The prisoner when the coat was given to him handed the bill of parcels for the 14.s. 6d. and 10s., saying, "There is 10s. to pay." The bill was receipted, and the prisoner took the 22s. coat away with him. The prosecutor stated that believing the bill of parcels to refer to the 22s. coat, ho parted with that coat on payment of 10s., otherwise he should not have done so : — Held, that there was evidence to support a conviction. Meg. v. Steels, 11 Cox, C. C. 5 ; 17 L. T. 666 ; 16 W. R. 341. 11. By Mbans op Chbqubs, Bills op Ex- change AND PEOMISSOEY NOTES. At Common Law.] — A person who, under a mere false pretence of purchasing lottery tickets, bargains with the holder of them, and obtains the delivery of them by giving a draft on a banker, ■ with whom he had no cash, for the amount of them, is not indictable for a fraud at common law ; for, in order to constitute this offence, the property must be obtained either by conspiracy, or by means of a false token as well as a false pretence, and not, as in this case, by a mere false assertion, or a bare naked lie. Itex V. Lara, 2 Leach, C. C. 652 ; 2 East, P. C. 819, 827 ; 6 T. R. 565. Knowledge that Cheque, &c., will not be Paid.] — Obtaining goods by means of a cheque which the party knows will not be paid, is an indict- able offieuce. Rex v. Jaclison, 3 Camp. 370. Prosecutor agreed to sell a mare, warranted sound, to the prisoner for 20^. 10s. The prisoner came and took the mare away on a Thursday, giving a cheque for the price, which, at his request, the prosecutor agi'ced not to cash till Saturday. He, however, paid the cheque to his bankers on the same Thursday ; they returned it to him on the Saturday indorsed " no account." The prisoner had no effects at the bank on the Saturday, or on any day for a long' time pre- viously. For the prisoner, B., a witness, proved that he had requested prisoner to buy a horse for him (B.), and that prisoner had told B. that he thought he knew of a mare that would suit, and asked B. for a cheque, which B. did not give, as he had not his cheque-book with him ; that the prisoner, on the Monday after the Saturday, told B. he had bought a horse for him for 201. 10s., and that B. sent a cheque to him on the follow- ing day for the amount. On the Wednesday the mare was sent back to the prosecutor, with a veterinary certificate that she was not sound, a summons against the prisoner having been taken by the prosecutor and left at the prisoner's house on the previous Monday. The prisoner's counsel contended that the prisoner ought to be acquitted, first, because the prosecutor having broken the contract, the charge of false pretences could not be maintained ; secondly, because there was no false pretence of an existing fact, as the piisoner did not allege he had funds at the bank at the time he drew the cheque ; and thirdly, because, upon B.'s evidence, the prisoner had reasonable cause to believe that the cheque would be paid on the Saturday. The court overruled the objec- tions, and directed the jury that if they believed that the prisoner knew he had no funds at the bank at the time he gave the cheque, and that the prosecutor had parted with the mare upon the belief that the cheque was a good and valid one, they must find the prisoner guilty. The jury thereupon found the prisoner guilty : — Held, that the direction was wrong, and that the case ought not to have been left to them, and that the conviction ought to be quashed. Reg. \. Walne, 11 Cox, C. C. 647 ; 23 L. T. 748. A man who makes and gives a cheque for the amount of goods purchased in a ready money transaction, saying that he wishes to pay ready money, makes a representation that the cheque is a good and valid order for the amount inserted in it ; and if such pei-son has only a colourable account at the bank on which the cheque is drawn, without available assets to meet it, and has no authority to overdraw, and knows that the cheque will be dishonoured on presentation, and intends to defraud, he may be convicted of ob- taining such goods by such false pretences. Reg. V. Hazelton, 2 L. E., C. 0. 134 ; 44 L. J., M. C. 11 ; 31 L. T. 451 ; 23 W. R. 139. A. was charged with falsely pretending that a post-dated cheque, drawn by himself, was a good and genuine order for 25Z., and of the value of 2bl., by means of which he obtained a watch and a chain. It was found by the jury that, before the completion of the sale, and the delivery of the watch by the prosecutor to the prisoner, the prisoner represented to the prosecutor that he had an account with the bankers on whom the cheque was drawn, and that he had a right to draw the cheque, though he postponed the date for his own convenience, all which was false ; and that he represented that the cheque would be paid on or after the day of the date, but that he had no reasonable ground to believe that it would be paid, or that he could provide funds to pay it. The prisoner was convicted, and the judges held the conviction right. Rex v. Parlicr, 7 C. &P. 825- 2M. C. C. 1. Obtaining credit in account from the party's own banker, by drawing a bill of exchange on a person on whom the party has no right to draw, and which has no chance of being paid, is not a false pretence within 7 & 8 Geo. 4, c. 29, s. 53, though the banker pays money for him in conse- quence to an extent that he would not othei-wise have done. Rex v. Wawll, 1 M. C. C. 224. Cheque Signed in riotitious Name.]— E. M., in payment for a pony and cart, purchased by him from the prosecutor, drew a cheque in the name of W. M.,in the presence of the prosecutor, upon a bank at which he, the prisoner, had no account, and gave it to the prosecutor as his o-mi cheque, di-awn in his own name. At the time he drew the ohpque the prisoner knew that it would be, as in fact it was, dishonoured. The prosecutor reteived the cheque in the belief that it was drawn in the prisoner's own name : — Semble, that R. M. was guilty of obtaining the pony and cart by false pretences. Rea v Martin, 5 Q. B. D. 34 ; 49 L. J., M. C. 11 ; 41 Digitized by Microsoft® 195 CEllVIINAL LAW— jfaZse Pretences and Cheats. 196 L. T. 531 ; 28 W. E. 232 ; 44 J. P. 74 ; 14 Cox, C. C. 375. Bill not Bue till after time stated.] — Where a prisoner obtained goods on the faith of a false statement that a bill which he gave for the price of them would be paid on the following day, he may be convicted of obtaining goods under false pretences, though such bill on the face of it was not due till after that day. Reg. V. Httghes, 1 F. & F. 355. Indictment— Form and Contents of.] — If an indictment for attempting to obtain money under false pretences, charges it to have been attempted by means of a paper writing purport- ing to be an. order for money, and the instrument cannot be considered as stated in the indictment to be such an order, it is bad. Rex v. Cart- lorigU, R. & E. C. C. 106. But an indictment that A. unlawfully did falsely pretend that a printed paper was a good and valid promissory note, is sufficient, without setting out the paper. Keg. v. Ctmlsmi, T. & M. 332 ; 1 Den. C. C. 592 ; 19 L. J., M. C. 182 ; 14 Jur. 557. An indictment stated that the defendant falsely pretended to W. tliat he was a captain in the East India Company's service, and that a promissory note which he " then and there pro- duced and delivered to W., purporting to be made for the payment of 2lL, not saying by whom it purported to be drawn, nor othervrise describing it, was a good and valuable security for 211. ; by which false pretences he obtained," &c. : whereas the defendant was not a captain in the company's seiTice ; and whereas the pro- missory note which he then and there produced, and delivered to W., " was not a good and valu- able security for 21L, or for any other sum : " — Held, that the indictment did not sufficiently describe the note, or shew how it was wanting in value ; and that a conviction could not be supported on the representation as to the defen- dant's character, because the false pretences ■were so connected on the record, that one could not be separated from the other. Reg. v. Wicli- ham, 2 P. & n. 333 ; 10 A. & B. 34. 12. Inducing Peesons by Fraud to Exe- cute OE Dbsteoy Valuable SecueiIies. By 24 & 25 Vict. c. 96, s. 90, wlwsoerer, imtli intent to defra-Ud in- injure any other person, gliall ly any faUe pretence fraudulently cause or induce any other person to execute, malic, accept, indorse or destroy the whole or any part of any valuable security, or to write, impress or affiai his name, or the name of any other jierson, or of any company, firm or co-partnership, or the seal of any body corporate, company or fociety, upon any paper or parchment, in order that the same may be afterwards made or con- verted into or used or dealt loith as a valuable security, shall be guilty of a misdemeanor. (^Pre- vious enactment, 21 & 22 Vict, c 47.) Executing Valuable Security.] — Inducing a person by a false pretence to accept a bill of exchange, was not an obtaining a valuable security by a false pretence within 7 & 8 Geo. 4, c. 29, s. 53. Reg. v. Danger, Dears. & B. C. C. 307 ; 7 Cox, C. C. 303 ; 26 L. J., M. C. 185 ; 3 Jur., N. S. 1011. , Digitized by Ivlicrosoft® The prisoner was convicted upon an indict- ment, charging him with stealing a cheque. It was proved that he was clerk to n. savings bank, and received the cheque from a manager of the bank, upon^ false representation that one of the depositors had given notice of withdrawal, and for the purpose of handing it over to the de- positor. It was found that, according to the usual course of business, if a depositor could not attend at a proper time to receive the cheque, it was handed to the prisoner, as the agent of the depositor : — Held, that the case was one of false pretence, and not larceny, and that the convic- tion was wrong. Reg. v. Essex, Dears. & B. C. C. 371 ; 7 Cox, C. C. 384 ; 27 L. J., M. C. 20 ; 4 Jur., N. S. 16. If a person, by false pretences, obtains a cheque on a banker on unstamped paper, payable to D. F. J., and not payable to bearer, it is not an obtaining a valuable security by false pretences. Bex v. Yates, Car. C. L. 333 ; 1 M. C. C. 170. But obtaining, as a loan, from the drawer of a bill accepted by the prisoner and negotiated by the drawer, part of the amount, for the purpose of paying the bill, under the false pretence that the prisoner was prepared with the residue of the amount, is an offence within 7 & 8 Geo. 4, c. 29, s. 53, the prisoner being shewn not to be so pre- pared, and not intending so to apply the money. Rex V. Crossley, 2 M. & Eob. 17 ; 2 Lewin, C. C. 164. 13. By Passing off Flash ok Woethless Bank Notes. Counterfeit Notes.] — The fact of uttering a counterfeit note as a genuine one is tantamount to a representation that it was so ; and it is a false pretence, notwithstanding the note upon the face of it would have been good for nothing in point of law, even if true. Rex v. Freeth, E. & E. C. C. 127. Passing off a flash note as a Bank of England note on a person unable to read, and obtaining from him in exchange for it five pigs of the value of Zl. 17s. &d., and 11. 2s. 6d. change, is a false pretence. Reg. v. Cowlsun, T. cSi M. 332 ; 1 Den. C. C. 592 ; 4 Cox, C. 0. 227 ; 19 L. J., M. C. 182 ; 14 Jur. 557. The defendant fraudulently offered all. Irish bank note as a note for 51., and obtained change as for a 51. note. The person from whom the change was obtained could read, and the note itself upon the face of it clearly afforded the means of detecting the fraud : — Held, that this was obtaining money by means of false pretences. Reo. V. Jessop, Dears. & B. C. C. 442 ; 7 Cox, C. C. 399 ; 27 L. J., M. C. 70 ; 4 Jur., N. S. 123. Halves of Bank Notes.] — A person who obtains goods by sending by post halt notes in payment, but sends the corresponding halves to another pei-son in payment for other goods, is properly convicted of obtaining the first-mentioned goods under false pretences. Beg. v. Mmphy, 10 Ir. E., C. L. 508 ; 13 Cox, C. C. 298. Proof that Notes are Valueless. ]— The prisoner, knowing that some old country bank notes had been taken by his uncle forty years before, and that the bank had stopped payment, gave them to a man to pass, telling him to say, if asked about them, that he had taken them from a man did not know. The man passed the notes, - - - ":r) he 197 CEIMINAL LAW — False Pretences and Cheats. 198 and the prisoner obtained value for them. It appeared that the bankers were made bankrupt : — Held, that he was guilty of obtaining money by false pretences, and that the bankruptcy pro- ceedings need not be proved. , Seg. v. iowey, 11 Cox, C. C. 115 ; 37 L. J., M. C. 52 ; 17 L. T. 481 ; 16 W. B. 344. On an indictment for obtaining money by falsely pretending that the promissory note of a bank that has stopped payment by reason of bankruptcy, was a good and valuable security for the payment of the amount mentioned in it, and was of that value, it is not necessary to prove the proceedings in bankruptcy. It is sufficient to prove the time when the baak stopped payment, and that cash could not be obtained for the note on its being presented for payment at the place where it was made payable. Meg. V.Smith, 6 Cox, C. C. 314. On an indictment for delivering in payment for a horse certain promissoiy nptes, as for good and available promissory notes, which the prisoner knew to be not good, nor of any value ; the notes purported to be the notes of a country bank which was supposed to have failed : — Held, that at all events it was necessary to prove that the notes were bad and of no value. Box v. Flint, E. & R. C. C. 460. Evidence that Notes may be of some Value.] — Indictment for false pretences, in passing a note of a bank that had stopped payment as a good note. The prisoner knew that the bank had stopped payment ; but it appeared that two only of the partners of the bank had become bankrupt, and that the third had not : — Held, that the pri- soner must be acquitted. Rex v. Spencer, 3 C. & P. 420. If a person pass a note of a countiy bank for ol. payable on demand as a good note, and as of the value of 5Z., knowing that the bank is insol- vent, and has stopped payment, and cannot pay the note in full, he may be indicted for obtaining money by false pretences. Reg. v. Ikianss, Bell, . C. C. 187 ; 8 Cox, C. C. 257 ; 29 L. J., M. C. 20 ; 5 Jur., N. S. 1361 ; 1 L. T. 108. But where the evidence shews that the bank has paid a dividend, the direction to the j ury that there is evidence that the note is not of any value, will be wrong. Ih. Indictment — Form and Contents of.] — An indictment charging that the defendant unlaw- fully did pretend to S. that a paper writing which he produced to S. was a good hi. Ledbury Bank note, by means whereof he unlawfully obtained money from S., with intent to cheat and defraud him of the same : whereas, in truth and in fact, the paper writing was not a good al. note of the Ledbury Bank, — ^is bad, as it does not charge that the defendant knew that it was not a good 5L note of the Ledbury Bank, and is not aided by the allegation of the intent to defraud. Ren v PMlpotts, 1 C. & K. 112. The prisoner was convicted of attempting to obtain a sewing machine by false pretences. The indictment alleged that he did falsely pre- tend that a paper partly in print and partly in writing, produced by him to the prosecutor, and •purporting to be a bank note for the payment to the bearer of ol., was then a good, genuine and available order for the payment of U., and was then of the value of U. ; by means of which false pretence the prisoner did unlawfully at- Digitized by tempt to obtain a sewing machine. The evi- dence was that the prisoner bargained for the purchase of the sewing machine for 35»., and said that a friend had told her to get one, and had sent her the money to pay for it, and at the same time gave a worthless bank note for al. payable to the bearer, of the Devonshire Bank, which had stopped payment many years before. The prisoner knew at the time that the bank had stopped payment, and that the note was of no value : — Held, that the indictment, though inartificially framed, sufficiently alleged that the prisoner falsely represented the note to be a good and genuine iiote of an existing bank, and of the value of 51., and that the evidence suppoKfced the conviction. Meg. v. Jarman, 14 Cox, C. C. 48 ; 38 L. T. 460. 14. Cheats. Under colour of Betting.] — If there is a plan to cheat a man of his property, under colour of a bet, and he parts with the possession only to deposit it as a stake with one of the confede- rates ; the taking by such confederate is felonious. Rex V. Mobson, B. & B. C. C. 413. King-dropping.] — To obtain property from another by the practice of ring-dropping is felony, if the jury finds it was obtained under a preconceived design to steal it. Mex v. Patch, 1 Leach, C. C. 238 ; 2 East, P. C. 678 ; S. P., Mc.v V. Marsh, 1 Leach, C. C. 345. A person who induces another to deliver bank notes to him by the practice of ring-dropping, on the condition that if he does not restore them in such a time the entire value of the ring will belong to the pereon delivering the notes, is guilty of felony ; for, although the possession of the notes is parted with, the property still remains in the owner. Mex v. Watson, 2 Leach, C. C. 640 ; 2 East, P. C. 680. To' aid and assist a person to the jurors un- known, to obtain money by the practice of i-ing- dropping, is felony, if the jury finds that the prisoner was confederating with the person un- known to obtain the money by means of this practice. Rex v. Moore, 1 Leach, C. C. 314 : 2 East, P. C. 679. Pretending to be Merchant.]— It is an indict- able offence if two eSect a cheat by means of one pretending to be a merchant and the other a broker, and as such bartering pretended wines for hats. Rex v. Macarty, 2 East, P. C. 823. Picture with spurious Name attached.] — If a man in the course of his trade, openly carried on, puts a false mark or token upon a spurious article, so as to pass it off as a genuine one, and the article is sold and money obtained by means of the false mark or token, he is guilty of a cheat at common law. Reg. v. Class, Dears. & B C C 460 ; 7 Cox, C. C. 494 ; 27 L. J., M. C. 54 ; 3 Jur., N. S. 1309. If a person knowingly sells as an original, a copy of a picture, with the painter's name imi- tated upon it, and by means of the imitated name, knowingly and fi-audulently induces another to buy and pay for the picture as a genuine work of the artist, he may be indicted for a cheat at common law, by means of a false token ; but he cannot be indicted for forging, or Microsoft® 199 CEIMINAL 1,A.W— False Pretences and Cheats. 200 uttering the forged name of the painter ; for the crime of forgery must be committed with some document in writing, and does not extend to the fraudulent imitation of a name put on a picture merely as a mark to identify it as the painter's work. lb. Wagering by tossing with Coins.] — The pri- soners were indicted and convicted under the 8 & 9 Vict. c. 109, s. 17, of obtaining by fraud and unlawful device and ill-practice in playing at a certain game or sport, to wit, in and by wagering on the event of a certain game or sport, a watch and other things from the prose- cutor. The evidence was that the prosecutor was induced to go to a public-house and drink and toss for wagei-s with one of the prisoners, and the event was that the prosecutor lost, and the prisoners took away the property stated : — Held, that this was a sport, pastime or exercise, if not a game, within the meaning of s. 17 of 8 & 9 "Vict. c. 109. Beg. v. O'Connor, 15 Oox, C. C. 3 ; 45 L. T. 512 ; 46 J. P. 214. Indictment.] — An indictment for obtaining money by selling an article which was marked with a spurious mark or token must contain an averment that it was by means of such false mark or token that he was enabled to pass oflE the article and obtain the money. Reg. v. Closs, Dears. & B. C. C. 460 ; 7 Cox, C. C. 494 ; 27 L. J., M. C. 54 ; 3 Jur., N. S. 1309. In an indictment under 8 & 9 Vict. o. 109, s. 17, for winning money at cards by fraud, un- lawful device and ill practice, it is not necessary to state to whom the money belonged. Reg. v. J/O.SJJ, Dears. &B. C. C. 104 ; 7 Cox, C. C. 200 ; 26 L. J., M. C. 9 ; 2 Jur., N. S. 1196. 15. Amounting to Laeceny. Statute.]— By 24 & 25 Vict. c. 96, s. 88, if upon the trial of any person indicted for the misdemeanor of obtaining by an ij false pretence from any otlier person any chattel, money or 'valuable security, with intent to defrawd, it ahall be proved that he obtained the property in gucstion in any such manner as to amount in law to larceny, he sliall not by reason thereof be entitled to be acguitted of such misdemeanor and no person tried for such misdemeanor shall he liable to be afterwards prosecuted for larceny upon the same facts. False Pretences must be Proved.]— To pre- vent a person indicted fcr false pretences from ■being acquitted on the gi'ound that the ofience is that of felony, the false pretences laid must be proved, for under the 24 & 25 Vict c. 96, s. ■88, he is to be found guUty of the misdemeanor. Jlcn. v. Bnlmer, L. & C. 476 ; 9 Cox, C. C 492 ; 33 L. J., M. C. 171 ; 10 Jur., N. S. 684 ; 10 L. T. 580. b. Form and Contents of. Form of Averments.]— By 24 & 25 Vict. c. 96, s. 88, it shall be sufficient in any iiidirtment for obtaining or attempting to obtain any such pro- perty — (i.e., atty chattel, money or nduuble security, see •«■ 87 and s. 1) — by false pretences to allege that the party accused did the act with ititent to defraud, without alleging an intent to defraud any partirular person, and without alleging any ownership of the chattel, ■money, or valuable security; and on the trial of any such indictment it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to proi-e that the party accused did the net charged with an intent to defraud. (^Former provision, 14 & 15 Vict. c. 100, s. 8.) By 14 & 15 Vict. c. 100,8. i,inan indictment for obtaining by false pretences any instrument, it slhall be sufficient to describe such instrument by any 9iame or designation by ivhich the same may be usually known, or by the purport thereof, without setting out any copy or facsimile there- of, or otherwise describing the same or the value thereof. False Pretence on one Person, Deceit on Another.] — An indictment for a fraud at com- mon law, charging the false pretence to have been made to one person, and the deceit to have been practised on a different person, is bad. Rex V. Lara, 2 Leach, C. C.'647 ; 2 East, P. C. 819, 824 ; 6 T. E. 565. 16. Indictment. a. Parties Indictable. Where the pretence is conveyed by words ■SDoken by one defendant in the presence of Xrs who are acting in concert together, they may be all Indicted jointly Young v. Re^^ (m error-), 2 Bast, P. 0. 82, 833 ; 1 Leach, C. C i505 ; 3 T. B. 98. Digitized by Microsoft® "Feloniously" Pretend.]— An indictment on a charge of obtaining goods under false pretences, is bad, if it states that the prisoner "unlawfully, knowingly, and designedly, did feloniously pretend," &c. Rex v. Walker, 6 C. & P. 657. See Rex v. Howorth, 3 Stark. 26. Prisoner's Knowledge of Fraud not Alleged.] —An indictment for obtaining money under false pretences must allege, that the defendant knew the falsehood ; " falsely and fraudulently" is not enough. Reg. v. Henderson, 2 M. C. C. 192 ; Car. & M. 328. . ^ , , In an indictment for obtaining money by false pretences under 7 & 8 Geo. 4, c. 29, it was alleged that the defendant " did unlawfully falsely pre- tend " &c. :— Held, that the omission of the word "knowingly" was no ground for arresting the iudgment. Req. v. Bowen, 4 New Sess. Gas. 62 ; 3 Cox, C. C. 483 ; 13 Q. B. 790 ; 19 L. J., M. C. 65 ; 13 Jur. 1045. False Pretence must be Stated.]— An indict- ment charging the defendant with obtaining money by false pretences, is insufacient, if it does not shew what the false pretences were. Rexy. Mason, 1 Leach, C. C. 487 ; 2 East, P. C. 837 ; 2 T. E. 581. Sufficiency of False Pretence.] -A first count charged that the defendant "nlavrfully did falsely pretend to J. L. that he the defendant was sent bv W. P. for an order to go to J. B. foi Tpa 1 of shoes, by means of which false pretence he did obtain from J. B. a pair of shoes o% the goods and chattels of J. B., with intent to de- fraud J L of the price of the said shoes, to wit nSfshimn^-ofthemoneysofJ.L. Thesecond ■ count charged that he falsely pretended to J. L. 201 CEIMINAL LAW— Faise Pretences and Cheats. 202 that W. P. had said that J. L. was to give him, the defendant, an order to go to J. B. for a pair of shoes, by means of which false pretence he did obtain from J. B., in the name of J. L., a pair of shoes of the goods of J. B., with intent to defraud J. L. of the same :— Held, that both of these counts were bad in arrest of judgment, as neither of them charged a sufficient false pretence. Jfn/. T. Tullij, 9 C. & P. 227. Sed quaere, see Jlef/. V. Bromii, 2 Cox, C. C. 348. An indictment stating that, by the rules of a benefit society, every free member was entitled to 51. on the death of his wife ; and that the defendant falsely pretended that a paper which he produced was genuine, and contained a true account of his wife's death and bmlal, and that he further falsely pretended that he was entitled to 51. from the society, by virtue of their rules, in consequence of the death of his wife, by means of which last-mentioned false pretence he obtained money, is good. Beg. v. 3ent, 1 C. & K. 249. A false representation as to the value of a business will not sustain an indictment for obtaining money by false pretences. Reg. v. Willia/Dison, 11 Cox, C. C. 328. Several Inducements.] — A man was convicted on an indictment charging that he did falsely pretend that he then lived at, and was the land- lord of, a beerhouse, and thereby obtained goods. The evidence was, that he said he was the nephew of a man in the prosecutor's employ, V. CooU, 1 F. & F. 64. Other Cases.] — One who obtains goods by false- pretences in one county, and afterwards brings them into another county, where he is appre-- bended with them, cannot be indicted for the offence in the county, but must be indicted in the county where the goods were obtained.. Reg. V. Stanhury, 9 Cox, C. C. 94 ; L. & C. 128 ; 31 L. J., M. C. 88 ; 8 Jur., N. S. 84 ; 5 L. T. 686 ; 10 W. R. 236. Where a misdemeanor consists of different parts, so much of the charge as amounts to a. Digitized by Microsoft® 211 CRIMINAL LAW— Felony and Felons. misdemeanor in law must be proved in the county ^ 7^,''^^*'^'' ^^°"^^ is ^^^^- ^"'^ V. Buttery, 3 B. & C. 700 ; 5 D. & E. 616. 19. Ebceiving Pbopeety obtained by False Pbetbnoes. Beceiver— When Guilty.]— On the trial of an indictment for receiving goods, knowing them to have been obtained by false pretences, if the jury is not satisfied that the prisoner knew that the goods were obtained by false pretences, the receiver is entitled to be acquitted, lien. v. Rijmes, 3 C. & K. 327. 20. Effect of False Pkbtences on Contracts. Of Conviction.]— By 24 & 25 Vict. c. 96, s. 110, if any person guilty (inter alia) of obtaining any chattel, money, or other property by false pre- tences " shall be indicted on behalf of the owner of the property and convicted, in such case the property shall be restored to the owner." — W. purchased and obtained delivery of certain sheep, from the defendant by false pretences. The plaintiff purchased the sheep from W. and paid W. for them without knowledge of the fraud, the defendant having done nothing in the mean- time to avoid the contract between himself and W. The defendant finding that the sheep were on the plaintiff's premises retook possession of them ; W. having been convicted of obtaining the sheep by false pretences on the prosecution of the defendant : — Held, that the effect of 24 & 25 Vict. c. 96, s. 100, was not to revest the pro- perty in the sheep in the defendant as against the plaintiff, who had acquired a good title, to them before the conviction, and consequently that the defendant was liable in an action by the plaintiff for the value of the sheep. Moyce v. Newingten, 4 Q. B. D. 32 ; 48 L. J., Q. B. 125 ; 39 L. T. 535 ; 27 "W. R. 319. See also Candy v. Lindsay, 1 Q. B. D. 348 ; 45 L. J., Q. B. 381 ; 34 L. T. 314 ; 24 W. E. 780 ; and 2 Q. B. D. 96 ; 46 L. J., Q. B. 233 ; 36 L. T. 345 ; 25 W. R. 417 — C. A. Svit this point was not raised in S. C, 3 App. Cas. 459 ; 47 L. J., Q. B. 481 ; 38 L. T. 573 : 26 W. E. 406. XVII. FELONY AND FELONS. 1. Rights of the Crown. 2. Validity of Assignments by Felons, 213. 3. Effect of Pardon, 214. 4. Other Points relatbig to, 215. 5. Compounding Felonies and InformatiimK 217. 1. Eights op the Crown. Forfeiture.]- 33&34 Vict. o. 23, abolishes for- feiture of lands and goods for treason and felony, and provides for the administratiun of the estates of eonviets. Before this Enactment.] — Where the legatee of a promissory note bequeathed by will is con- victed of felony, the forfeiture caused by such conviction does not divest the executor of his light to sue the maker, though he is a trustee for 212 the crown jji respect of the proeeeds.of the suit. Btshop V. Cm-tis, 18 Q. B. 878 ; 21 L. J., Q B 391 ; 17 Jur. 23. i >*■ • A testator devised real estate to his widow for life, and at her death to trustees, to sell and pay part of the proceeds to B., who committed a felony, but had undergone his punishment before the widow's death :— Held, that his interest was not forfeited to the crown. Thompson, In re, 22 Beav. 506. The testator also directed his trustees to pro- vide a fund out of his personalty and other real estate, to secure an annuity for his widow. The fund was provided :— Held, that B.'s interest, being vested, became forfeited to the crown by ^•~ conviction for felony in the widow's life. his Digitized by Microsoft® though he had undergone his punishment pre- viously to her death. lb. A stock legacy, and a share of residuary per- sonalty expectant on the death of a tenant for life, bequeathed to a minor, payable at twenty- one, with a limitation over in the event of his death under twenty-one, are interests which, prior to the 4th July, 1870, were forfeitable to the crown on the conviction of the minor for felony. Bateman, In re, 15 L. R., Eq. 355 ; 42 L. J., Ch. 553 ; 28 L. T. 395 ; 21 W. E. 435. On a petition by the attorney-general for payment to the crown of personal property of a felon; — Held, that a conviction in New South Wales was sufiicient to support the petition. A father bequeathed to his son S. " the in- terest of 2,0O0Z. to be paid him by my executor yearly so long as he lives, and then the principal to be divided amongst my real sons and daughters that are living except my son that has the in- terest paid him." The will contained no resi- duary gift. The father left S., and eight other children, who all predeceased S. One of the eight children was convicted of felony during the life of S., and died in prison. His interest under the will having been claimed by the crown : — Held, that the claim could not be sus- tained. Davis, In re, 27 L. T. 477. A. died intestate, the wife of a felon under sentence of transportation, and leaving property acquired after the conviction of her husband : — Held, that such property belonged to the crown as accrued to the felon, and not to the next of kin of the wife. Coombes v. Queen's Proetor, 2 Eob. Ecc. Eep. 547 ; 16 Jur. 820. A right of action for damages is not forfeited to the crown upon a conviction for felony. Flemings. Smith, 12 Ir. C. L. E. 404. But a right of action, in respect of money had and received, money paid, and upon an account stated, is forfeited. lb. Plea to the money counts, that the plaintiff had been convicted of felony, and sentenced to six years' penal servitude ; and that the causes of action accrued after the plaintiff was con- victed, and before he had endured the punish- ment to which he was adjudged ; and that by reason of the conviction, the moneys and rights of action for recovery thereof, became forfeited to the crown, and had not since been restored. Eeplication, that the felony was not punishable with death, and that before action, and after sentence, the sentence and punishment had been commuted, and that the plaintiff had endured the full term of the commuted punishment, is no answer. lb. A settlement contained a provision, that if any I 2 CEIMINAL TuAW— Felony and Felons. 213 of the children who were the objects of the settlor's bounty should, previously to the assign- ment to him of the trust property, have alienated his expectant share, then his share should be forfeited and belong to the others. One of the children, before the assignment to him, and before his share vested, committed a felony, and then executed a deed purporting to be an assign- ment of his share ;— Held, that this operated as a forfeiture to such of the others as were entitled to take under the settlement, and was valid against the crown. Blake v. Barnett, 2 Drew. & Sm. 117 ; 31 L. J., Ch. 898 ; 8 Jur., K S. 812 ; « L. T. 886 ; 10 W. K. 767. Freeholds of inheritance which, at the time of his death, belong to a man who dies felo de se, do not escheat to the crown, but pass to his heir- at-law. Norris v. Chambres, 29 Beav. 246 ; 30 L. J., Ch. 285 ; 7 Jur., N. S. 59. Affirmed on appeal, 7 Jur., N. S. 689 ; 4 L. T. 345 ; 9 W. E. 794. Land belonging to several persons was taken under a local act, and the purchase-money paid into court. One of the owners was afterwards convicted of felony, and sentenced to transpor- tation for seven years, after the expiration of which he claimed his share of the purchase- money : — Held, that the money retained its character of realty, and was not forfeited to the crown. Harrop, In re, 3 Drew. 726 ; 26 L. J., Ch. 516 ; 3 Jur., N. S. 380. 214 2. Validity op Assignments by Felons. After the commission of a felony, and before his conviction, a felon may sell or assign over his personal property for valuable consideration ; and a debt existing at the time of the commis- sion of the offence is a sufficient consideration to support such an assignment. But the sale must be bon3. fide, and not colourable and merely for the purpose of avoiding the forfeiture on convic- tion. Clwione V. Baylis. 31 Beav. 351 ; 31 L. J., Ch. 757 ; 8 Jur., N. S. 1028 ; 6 L. T. 739 ; U "W. R. 5. The assignment by a felon of his goods and chattels after the offence committed, and before conviction, depends for its validity, as against the claim of the crown, upon valuable consideration and the bona fides of the transaction. Perldm V. Bradley, 1 Hare, 219 ; 6 Jur. 254. A voluntary settlement of personal estate, executed in favour of a wife and children, after the commission of a felony, but before and in fear of conviction, is invalid against the crown. Saunders, In re, 4 Giff. 179 ; 9 Cox. C. C. 279 ; 32 L. J., Ch. 224 ; 9 Jur., N. S. 570 ; 7 L. T. 704. Although, by contemplation of law, the whole time during which assizes continue at one place is considered for some purposes as one legal day, yet the particular day on which a conviction actually took place may be proved when neces- sary ; and therefore, where a cdhvicted felon made a bona fide assignment of goods after the commission-day of the assizes, but before the day on which he was actually convicted : — Held, that the assignee could prove the actual day of the conviction, although the record mentioned only the commission-day, and that the assign- ment was valid. WhUaJier v. W'isiey, 12 C. B. 44 ; 21 L. J., C. P. 116 ; 16 Jur. 411. When a deed is made by a prisoner on the eve of his trial for a capital offence, which assigns his property to another, it cannot be supported without proof of consideration. Shaw v. Bmii, 1 Stark. 319. If A., being in custody on a charge of felony, conveys all his property in trust for his wife for life, and then in trust for his son, and on the next day A. is convicted of the felony, this con- veyance will be void as against the crown. Morewood v. Wilkes, G C. & P. 144. Exercise of Power of Eevocation.]— A felon, shortly before his conviction, conveyed real estate to trustees upon certain trusts, reserving to himself a power of revocation. Whilst still undischarged he borrowed a sum of _ money, and, by a memorandum, agreed that it should be charged upon his settled estate : — Held, that the memorandum of charge was an equitable ex- ercise of the power of revocation, and that such power was duly exercised in favour of the mortgagee. Ilainjpriee v. Pearson, 25 W. R. 768. Prisoner Acquitted on Ground of Insanity — Effect of Assignment by.] — A person being in prison on a charge of felony, in order to avoid a forfeiture of his property in the event of a con- viction, executed a voluntary deed, assigning his pei-sonal estate to his brother absolutely. He was tried, found not guilty, on the ground of insanity, and ordered to be imprisoned as a lunatic during her Majesty's pleasure: — Held, that the deed, being without consideration, and executed by an insane person under a total misapprehension, was inoperative, and that the representatives of the brother took no interest under it. Mawning v. Gill, 13 L. E., Eq. 485 ; 41 L. J., Ch. 736 ; 26 L. T. 14 ; 20 W. R. 357 ; 12 Cox, C. C. 274. 3. Effect of Pardon. A pardon granted to a felon under the sign manual, has not the effect of a pardon under the great seal. Gmgh v. Davies, 2 Kay & J. 623 ; 25 L. J., Ch. 677. The 5 Geo. 4, c. 84, s. 26, protects felons whose sentences have been remitted by the governor qf a penal colony, in the enjoyment of property subsequently acquired by_ them, not only by their own industry, but also by other means. n. Therefore, where a convict who had received a conditional free pardon subsequently became entitled, as one of a class which could not be previously ascertained, to a share of personal property bequeathed by a will made long before the date of his conviction, he was entitled to retain this share against the crown. Ih. The 5 Geo. 4, c. 84, s. 26, enables a felon who has obtamed a remission of sentence, to maintain an action in respect only of property to which he has acquired a title after conviction. Fleininq V. Smith, 12 Ir. C. L. R. 404. A conditional pardon, under 6 & 7 Vict. c. 7, is valid, although no place is exempted from its operation. Barnett \. Blake, mxew & Sm 117- 31 L. J., Ch. 898 ; 8 Jur., N. S. 812 ; 6 L t' 886 ' 10 W. E. 767. . -u. i. 000 , In 1833, A. was convicted of felony, and trans- ported. At this time, his wife was entitled to a fund, contingently on her surviving her mother Digitized by Microsoft® 215 CRIMINAL -LAW— Felony and Felons. In 18J:6, A. obtained a conditional pardon, avail- able in all places, except the United Kingdom. The mother died in 1838, and the wife in 1852. On a petition by the crown for payment, the court, without deciding the right, merely ordered payment to the administrator of the wife. Rar- rlngton, In rc<, 29 Beav. 24. A party sentenced to death for felony, which sentence was commuted to transportation for life, received a conditional free pardon in a penal colony :— Held, that such pardon did not alter the efEect of the attainder investing his property in the crown. Church, In re, 16 Jur. 617. 4. Othek Points relating to. Act 'oi Bankruptcy — Convicted Felon not complying with Debtor Summons.]— Notwith- standing the provision contained in s. 8 of the act 33 & 84 Vict. c. 23, that every convicted felon shall, during the time while he shall be subject to the operation of the act, be incapable of alienating or charging any property, such a c mvict can pay a debt which is claimed by a debtor summons issued and served on him after his conviction, and if he fails to pay the debt within the time limited by the summons, he will commit an act of bankruptcy, upon which an adjudication can be made against him. Graves, Ex parte, Harris, In re, 19 Ch. D. 1 ; 51 L. J., Ch. 1 ; 45 L. T. 397 ; 30 W. E. 51 ; 46 J. P. 70 ; 14 Cox, 0. C. 629 ; 15 Cox, C. C. 118— C. A. Suspension of Civil Semedy until Public Pro- secution.] — Where a debt arises out of a felonious act of the debtor, the civil remedy is suspended only until public justice is satisfied. Dudley anA West Bromwieh Banldny Company v. Spittle, 1 Johns. & H. 14 ; 2 L. T. 47 ; 8 W. K. 351. Therefore, where a party, who claimed to be a creditor for the amount paid by him on a forged cheque, had commenced a prosecution upon which a true bill was found and the prisoner was arraigned, but the prosecutor had abstained from bringing on the trial by direction of the judge, who thought the ends of justice satisfied by sentencing the prisoner for another forgery, to which he had pleaded guilty : — Held, that he had done enough to satisfy the rule of law, and tiat his civil remedy revived. li. A., a banter's clerk, misappropriated the moneys of his employers, but the false entries relating to the transactions were not discovered until after his death. The banking company having filed a bill in equity against his legal personal representative for an account, the defendant demurred, on the ground that the acts of A. were felonious, and therefore could not be made the ground of a suit in equity. The rule of public policy not applying, the demurrer was overruled, with costs. Wickham v. Gatrill, 2 Sm. & G. 353 ; 2 Eq. B. 805 ; 23 L. J., Ch. 783 ; 18 Jur. 768. , . , u- u The civil remedies for suing the felon, which belong to the person whose property has been feloniously taken, are suspended, after the dis- covery of the commission of the offence, mitil the conviction of the felon, in order that the dignity of the law may be vindicated by the pro- secution and conviction of the felon. But it is indifferent by whom the felon is prosecuted. Chowne v. liaylis, 31 Beav. 351 ; 31 L. J., Ch 757; 8Jur.,N..S.1028; 6 L. T ' 216 In an .action for the recovery of a brooch, the pleas being not guilty and not possessed, the ]uiy found a verdict for the plaintiff. A rule for a new trial having been obtained, on the gi'ound that it appeared that the brooch was taken by the defendant under such circumstances as to prove a charge of felony, and that the judge ought therefore to have nonsuited :— Held, that the judge was bound to try the issues on the record, and that he was right in not havin" non- suited the plaintiff. Wells v. Abrahams, 7 L. R., Q. B. 554 ; 41 L. J., Q. B. 306 ; 26 L. T. 433 ; 20 W. R. 659. An action cannot be maintained where a declai-ation alleges a ease of felony ; secus, where the direction alleges only a misdemeanor. Fissington v. Hutchinson, 15 L. T. 390. In an action by a Woman for assaulting her and forcibly violating her peraon, whereby she was delivered of a child, the judge, upon her evi- dence, directed a nonsuit : — Held, that the direc- tion was right, for if a rape had been committed no action would lie until after the defendant had been prosecuted : and if the plaintiff had consented she could not maintain an action for the assault. Welloch v. Constantine, 2 H. & C. 146 ; 8. P., Qninlan v. Barher, Beatty's Ir. Rep. 47. An insurance company granted a fire policy to S., and during the currency of' the policy S.'s wife feloniously burnt the property insured. The company, not admitting any claim on the policy, brought an action against S. and his wife for the damage done by the act of the wife : — Held, that the action for the felony, if it were maintainable, was maintainable without shewing that the felon had been prosecuted. Midland Insurance Company v. Smith, 6 Q. B. D. 561 ; 50 L. J., Q. B. 329 ; 45 L. T. 411 ; 29 W. R. 850 ; 45 J. P. 699. What Bebts Provable in Bankruptcy — Claim Arising out of Felony — No Prosecution.] — Bankers allowed a customer to overdraw his current account on his depositing with them as security for the overdraft some bills of ex- change drawn by him upon, and purporting to be accepted by, a third person. After the cus- tomer had overdrawn his account the bankers discovered that the acceptances were forgeries. They then communicated with the customer, and ultimately gave up the forged acceptances to him, receiving from him in exchange joint and several promissory notes of himself and his father. . The customer was afterwards adju- dicated a bankrupt. The notes were not paid at maturity : — Held, that though the bankers had not prosecuted the bankrupt for the felony, and whether they had or had not agreed not to prosecute him, they were entitled to prove in the bankruptcy for the balance due to them upon the bankrupt's current account. Leslie, Mji parte, Guerrier, In re, 20 Ch. D. 131 ; 51 L. J., Ch. 689 ; 46 L. T. 548 ; 30 W. R. 344 ; 15 Cox, C. C. 125— C. A. Per James and Bramwell, L. JJ. :— Even if a person injured by a felony is debaiTcd from proving in the bankruptcy of the felon in re- spect of the injury until he has prosecuted the felon, the obligation to prosecute does not extend to his trustee in bankruptcy, though the injured person himself tendered his proof before his own 7'39 ; 11 W. K. 5. I bankruptcy. Ball, Ex parte, Shepherd, In re Digitized by Microsoft® CRIMINAL LAW— ForcifcZe Entry and Detainer. 217 10 Ch. D. 667 ; 48 L. J., Bk. 57 ; 40 L. T. 141 ; 27 W. R. 563 ; 14 Cox, C. C. 237— C. A. Per Baggallay, L. J. :— A person who has been injured by a felony is not allowed by the poljcy of the law to seek civil redress, if he has failed in his duty of bringing or endeavouring to bring the felon to justice. And the trustee m bank- i-uptcy of the injured person stands m no better position than he himself. /*. But this rule does not apply where the offender has escaped from the jurisdiction, before a prose- cution could have been commenced by the exer- cise of reasonable diligence. /*. Statement of Claim shewing Felony.]— -A statement of claim is not demurrable on the ground that it shews the cause of action to be a felony for which the felon has not been prose- cuted. Moope V. D'Avigilor, 10 Q. B. D. 41.i ; 48 L. T. 761 ; 47 J. P. 248. No Defence to Action against Master for Damage caused by Servant.]— The defence that the act complained of amounted to a felony does not apply to an action against a master for damages sustained through the wrongful act of a servant. Oalorn v. Gillett, 8 L. E., Ex. 88 ; 42 L. J., Ex. 53 ; 28 L. T. 197 ; 21 ^. E. 409. Plea of Conviction. J— Where a plea, that the plaintiff since the last pleading has been con- victed of felony, is pleaded dan-ein continuance, the plaintiff may confess the plea, and sign judgment for his costs. Sarnett v. London and North-Western Railway Company, 5 H. & N. 604. Order directing Disposal of Property found on Prisoner.]— &e infra, XXII, LARCENY. 5. Compounding Felonies and Infokmations. Felonies.] — The law does not authorize a private person to forego a prosecution upon any terms ; and even if a promise is given and broken in such a manner as a jury would consider scan- dalous, yet, in point of law, that will not make any difierence. Beg. v. Daly, 9 C. & P. 342. Indictment.] — If, in an indictment for compounding felony, it is averred that the defendant did desist, and from that time hitherto had desisted, from all further prosecution ; and it appears, that, after the alleged compounding, he prosecuted the offender to conviction, the judge will direct an acquittal. Hex v. Stone, 4 C. & P. 379. To what Cases Applicable.] — The 18 Eliz. c. 5, which prohibits the compounding of any oif ence upon colour or pretence of process, or without pro- cess upon colour of any offence, against any penal law, does not apply to offences cognizable only before magistrates ; and an indictment for com- pounding such an offence will be bad in arrest of judgment. Rex v. Crisp, 1 B. & A. 282. indictment conviction. 21S taking money without nrocess to P-'^^*^^^ action being brought :— Held, ^^"^ ™!L^^Ji, rtnine- was liable to the punishment piescriDea oy tte former act for taking such penality without eavc o"a court at Westminster, or without judg- ment or conviction. RexY. 6!tf«(;2/,E.&E.C.O.S4. No Offence Committed, ]-A. threatened B. that he would inform against him for sellmg s^mts without a licence, unless B. would p^e him a sum of money. B. had not, m fact, sold any spirits, but he gave A. the ""oney to prevent an i^ormation :-Held, that A. was indictable under 18 Eliz. c. 5, B. 4, although B.had not coinmitted any offence, and although no information was ever preferred, nor any process sued out. Meg. V. Rest, 9 C. & P. 368 ; 2 M. C. C. 125. After Conviction.] — A popular must not be compounded after Rury V. Levy, 1 W. Bl. 443. Taking Penalty without Leave.] — On an indictment on .51 Eliz. c. 5, s. 4, for compounding an offence against 13 Geo. 3, c. 84, s. 13, and XVIII. FOECIBLB ENTEYAND DETAINEE. Statutes.]— 5 R. 2, s«. 1, c. 8 ; 8 Hen. 6, c. 9 ; 31 Eliz. 0. 11 ; 21 Jac. 1, c. 15. Title to Sue. ] — A person using land as a garden for more than twenty years, under permission from the owner to do so, in oi-der to keep it from trespassers, the owner firom time to time commg on the land and giving directions as to cutting the trees :— Held, that he had not got a title so as to enable him to sue a claimant under the owner for a forcible entry. Allen v. England, 3 F. & F. 49. What constitutes. ]— When a person havingthe legal title to land is in actual possession of it, the attempt to eject him by force brings the person who makes it within the provisions of the statute against forcible entiy. Lows v. Telford, 1 App. Cas. 414 ; 45 L. J., Ex. 613 ; 35 L. T. 69 ; 13 Cox, C. C. 226. Eevei-sing 31 L. T. 90— Ex. Ch. It will do so though the possession of the person having such legal title has only just commenced, though he may himself have obtained it by forcing open a lock, though his ejection has not been made by a "multitude" of men, nor attended with any great use of violence, and though the person who attempts to eject him may even set up a claim to the possession of the land. li. If a pei-son, who has a legal right of entry upon land which is in the possession of a wrongdoer, is allowed to enter peaceably through the outer door, it is still illegal for him to turn out the wrongdoer with violence. Edwich v. Hawlics, or Edridge v. Hawker, ^ 8 Ch. D. 199 ; 50 L. J., Ch. 577 ; 45 L. T. 168 ; 29 W. E. 913. To constitute a forcible entry, or a forcible detainer, it is not necessary that any one should be assaulted, but only that the entry or the detainer should be with such numbers of persons, and shew of force, as is calculated to deter the rightful owner from sending the persons away, and resuming his own possession. Milner v. Maclean, 2 C. & P. 17. An indictment for a forcible entiy cannot be supported by evidence of a mere trespass ; but there must be proof of such force, or at least such shew of force, as is calculated to prevent any resistance. Rex v. Smyth, 5 C. & P. 201 ; 1 M. & Eob. 156. A person having no possession or title to pre- mises, but fraudulently pretending to have such title, and so allowed by the servant of the true Digitized by Microsoft® .219 CKIMINAL LAW — Forcible Entry and Detainer. owner to enter, does not thereby acquire posses- sion, but may be forcibly expelled by Mm on discovery of the fraud ; and if in such a case .assaults are committed in consequence, the .question for the jury will be, whether there has been an excess of violence. A subsequent .attempt by force to re-enter, and so causing an afflray : — Held, an indictable ofEence, for which the party might be given in charge. Collins v. Thomas, 1 F. & F. 416. If a tenant of a house, after regular notice to ■quit, abandons it, and locks it up, leaving some articles of furniture in it, and the landlord breaks it open and takes possession, the tenant cannot •maintain trespass : his remedy, if any, is by indictment for forcible entry. Turner v. Jlcy- mott, 7 Moore, 574 ; 1 Bing. 158. See Hilary y. Gay, 6 C. & P. 284 ; Newton v. liarland, 2 Scott, N. E. 474 ; 1 M. & G. 644 ; Burling v. Read, 11 Q. B. 904 ; Pollen v. Brewer, 7 C. B., ISr. S. 371. Indictment.] — An indictment at common law, ■charging the defendants with having unlawfully, and with a strong hand, entered the prosecutor's mill, and expelled him from the possession, is good. Rex V. Wilson, 8 T. E. 357. Semble, in an indictment for a forcible entry, it is not necessary to allege the prosecutor's -title to the property, it is sufficient to state the possession : but if the title is stated it need not be proved. Reg. v. Child, 2 Cox, C. C. 102. A wife separated from her husband took a house, of which the husband, with the landlord's consent, obtained possession. Semble, that if the wife came with others, and made a forcible entry into this house, she might be convicted on .an indictment for forcible entry, stating it to be the house of the husband. Bc.v v. Smyth, 5 C, & P. 201 ; 1 M. & Eob. 156. Evidence.] — A constable entered a house with ■a wan-ant in his hand, and searched the house ; and for such entering and searching was indicted ior a forcible entry : — Held, that his counsel might ask the witnesses for the prosecution what the constable said, at the time, as to whom he ■was, searching for. Rex v. Smyth,'o G. & P. 201 ; 1 M. & Eob. 156. Upon the trial of an indictment for a forcible entry or a detainer, the party dispossessed was not a competent witness for the prosecution, before 6 & 7 Vict. c. 85, and 14 & 15 Vict. c. 99. Rex V. WiUia^is, 4 M. & B. 471 ; 9 B. & C. 549 ; S P., Rex V. Beavan, E. & M. 342. On the trial of such an indictment, the defen- dant cannot impeach the title of the party dis- II. Hearing by Justices— Mandamus.]— The court Tefused to grant a mandamus to compel magis- trates to hear a complaint and act summarily under the statutes relating to forcible entry and detainer. Davy, Etc parte, 2 D., N. S. 24. Conviction by— Sufficiency of.]— The 8 Hen 6, c. 9, was intended to give a summary iurisdiction in case of forcible detainer after an unlawful entry ; and a conviction by justices on that statute, merely stating an entry and a ioreible detainer, is insufficient. Rex v. OaUey, 4 B. & Ad. 307 ; 1 N. & M. 58. The 15 E. 2, c. 2, gave justices a summary 220 jurisdiction to convict, on their own view, for a forcible detainer after a forcible entry. It. In a conviction under 8 Hen. 6, c. 9, for a for- cible detainer, it must appear on the face of the conviction that there was an unlawful entry. Rex V. Wilson, 5 N. & M. 164 ; 3 A. & E. 817 ; IH. &\V.387. A conviction under a forcible detainer, on the view merely of the justices, without any evidence of an unlawful entry, is bad, even though infor- mation and complaint of an unlawful expulsion are stated. 11. In a conviction for a forcible detainer, under H Hen. 6, o. 9, where the magistrates proceed upon view, it is not necessary to set out the particular facts presented to their view. Rex v. Wilson, 3 N. & M. 753 ; 1 A. & E. 627. At the time of the conviction, the defendant tendered to the justices ■-■ traverse of the force complained of ; and a few days after an inquisi- tion was held before the magistrates, for the pur- pose of trying the alleged force by jury, who, after hearing evidence adduced by both parties, found the defendant guilty ; and the magistrates then gave restitution. A return was made to the .court, on certiorari, of the conviction and inquisition. The latter was entitled an inquisi- tion, by the oaths of twelve, &c., before, &c., who say upon their oaths that, &c. ; stating an unlawful entry and detainer, but not reciting any complaint made by the prosecutor : — Held, that the inquisition was founded on the convic- tion, and could not be sustained, the conviction being void ; and that the inquisition, even if looked at alone, was bad, as it did not state any complaint, nor by what authority the jury was summoned. Ih. In order to justify a conviction by justices, under 15 Eic. 2, c. 2, and 8 Hen. 6, o. 9, it must be proved before them that there was, as well an unlawful entry on the premises as a forcible detainer. Attwood v. Jolijfe, 3 New Sess. Cas. 116. Where a conviction stated that justices had convicted A. of forcible detainer upon their own view, and that afterwards a complaint was made to the justices that A. forcibly entered the pre- mises, and that notice of such complaint was given to A., who received the notice, but said nothing, and then went on to allege that the justices received evidence on oath of the unlaw- ful entry : — Held, that the conviction was bad, for not shewing that A. had been summoned to answer the charge of the unlavrful entry, or that he had any opportunity afforded him of defend- ing himself against such charge. IT). V. having been in possession of a house from May to October, the defendants called there, and, insisting that V. had no title, proceeded to take the keys out of the room doors. Upon their doing so, V. gave them into custody for stealing the keys ; but the magistrate refused to detain them. They then returned to the house, and having procured a sledge-hammer, forced the inner door of the hall, and some having entered that way, and some by a staircase window, over- powering the prosecutor's opposition, and fur- nished with a hatchet and other weapons, after a straggle which caused a disorderly crowd to assemble, they ejected the prosecutor and his servants From the commencement of the pro- ceedings till the conclusion, a female servant of he prosecutor's was in the kitchen :— Held, assuming the title of the prosecutor to have been Digitized by Microsoft® 221 CEIMINAL l^KSN— Forgery and Uttering Forged Instruments. 222 bad, and that the defendants had acted by the orders of those who had a good title to the pre- mises, that the evidence was sufficient to support a conviction of the defendants for a forcible entry and riot. Jter/. v. StiiM, 14 L. T. 633 ; 14 W. R. 806. aestitution— Application, Grounds for.]— An averment in an indictment for a forcible entry that the prosecutor was seised, is sufficient to found an application for a writ of restitution ; and it need not be shewn by the prosecutor that he still continued to be seised. iJw v. Dillon, 2 Chit. 314. An indictment charged that the defendants into one messuage, then and there being in the possession of W. P., he W. P. then and there being also seised thereof, with force of arms, did enter, and W. P., from the peaceable possession with force and arms, did put out. After a con- viction of the defendants : — Held, that this was a sufficient averment of the present seisin of W. P. to warrant the court in awarding a writ of restitution. Hex v, Hoare^^ M. & S. 266. Judge has Discretion. ]-Si judge at the assizes may, in his discretion, r&sc to award restitution, after an indictment TtcJi forcible entry and detainer has been found by th^o^rand jury, and the court has no power to review-ljis decision. Rerj.y. IlarUind,l P. & D. 93 ; 8 A. " A: E. 826 ; 2 Lowin, C. C. 171 ; 2 M. A: Rob. 141. Awarded by Justice — Inquisition.] — In order to authorize a justice to award restitution pursuant to an inquisition taken under 8 Hen. 6, c. 9, for a forcible entry, the inquisition should set forth the estate possessed by the party in the property disputed. Reri. v. SoiKser, 8 D. P. C. 128 ; 1 W., W. & H. 34.5. Certiorari.] — Where the indictment is brought before the Queen's Bench by certiorari, that court is bound, upon conviction, to award restitution. Jicu- v. Williams, 4 M. & R. 471 ; 9 B. & C. 549. So the court is bound to award a restitution, as a consequence of quashing a conviction for an unlawful detainer under 8 Hen. 6, c. 9, which is bad, without inquiring into the legal or equit- able claim of the respective parties. Sex v. WiUmi, 6 N. & M. 625 ; 3 A. & B. 817 ; 2 H. & W. 225. Before Trial.] — For the mode of proceed- ing to obtain restitution on application to a judge, after indictment found, but before trial, see Ilo.e v. Hake, 4 M. .*c E. 483. Damages — Eeoovery of, against true Owner of Land.] — An action may be maintained by a per- son who has been in possession of lands, without title, against the true owner of the lands, for with force and strong hand entering the lands, expelling the plaintiflE from the possession, and taking goods the property of the defendant then being on the lands. JVrii^tim y. Harland (1 Sc. N. R. 474) observed upon. 10 Gar. 1, sess. 3, c. 13, is similar to 21 Jac. 1, c. 15. Beattlc V. Mair, 10 L. R., Ir. 208. Damages cannot be recover p^rl. gi'y'f'j^stj tllu fu'l owner' for a torciole entry on land, for the Stat. 5 Ric. 2, st. 1, c. 8, only makes a forcible entry an indictable offence, and does not create any civil remedy for it. But for any indepen- dent wrong (such as an assault or an mpry to furniture) committed in the course of the for- cible entry, damages can be recovered even by a person whose possession was wrongful, tor tne statute makes a possession obtained by force un- lawful, even when it is so obtained by the ngM- ful owner. Newton v. JIarland (1 ^co"' J^- ■''• 474), Pollen v. Brewer (7 C B., N. S. 371), and Lotos r.- Telford (1 App. Oas. 414) considered. BedcUll v.lfaitland, 17 Ch. D. 174 ; 50 L. J.j Ch. 401 ; 44 L. T. 248 ; 29 W ". R. 484. Licence to Eject— LegaHty M.]— A licence by a tenant to his landlord to eject' him on a speci- fied day without any process - of aaw is void, as authorizing the commission of an act which is made illegal by the act 5 Ric. 2, st. 1. c. 8. Edwielt, V. SawJtes or Edrldge vj. Hawhes, 18 Ch. D. 199 ; 50 L. J., Ch. 577 ; 45 /L. T. 168 ; 29 W. R. 913. ^ XIX. FORGERY AND UTTE^p:^ INSTRUMENTS" IG FORGED A. FORGERY^ 1. Statute, 223. ■^ General Princvples, 223. ^ipl^tmdar Offences. \ \. Bank Notes, 224. J ^Is of Exchange andh Promissory Notes. '^^i^Tlie Offence, 2$0. ii. ^odictment, 23 iii. Eitoce, 238.* c. Cheques, ^0. d. Documents ~i?urportJing to be made Abroad, 242r e. Court Rolls, 243. /. Debentures, 243. g. Deeds or Bonds, 24,1 h. Evidence, InstrumeiSs of,245. i. Exchequer Bills or B^da, 246. j. India Bonds, Stock, , Jr Certificates, 247. A. Marriage Liceacesfor Certificates, 247. I. Orders and Proceedings of Magistrates, 248. ,' Ml. Records, Judicial! and Curial Process, 248. ■) II. Registers of Births, Marriages, and Deaths, 251. ' 0. Registry of .5Jeeds, 252. p. Seals of theiKingdom, 253. q. Stamps, and l^arks on Plate, 253. r. Stock Oertifiioates and Coupons, 255. s. Trade MarUs, 255. t. Transfer^ Stocks, &c., and Powers of Attomejv, 255. «. WarrantiS, Orders, Undertakings, Ee- questsi and Receipts for Goods or for Mone|f. i. Stiatutes, 257. ii. G^oods, in Respect of, 258. iii. Money, in Respect of, 260. iv. Iindictment and Evidence, 268. r. Wills,J^71. w. Othfar Bistruments, 273. 4. Oltainirjtj PI'ssferty npon Forged ItistrU' -mental, 274. 5. I/iftTctment, Ecidence, and Practice, a. Parties Indictable, 275. Digitized by Microsoft® 223 CRIMINAL 'LAW—Forgenj and Uttering Forged Instruments. 224 and Contents of Indictment, i. Form 276. c. Proof of Possession, 277. d. Allegation and Proof of Intent to De- fraud, 278. e. Evidence generally, 280. /. Witnesses, 282. ff. Jurisdiction to Try, 283. /t. Election of Forgeries, 284. '{. Punishment, 284. j. Costs of Prosecution, 284. /(. Power to Seize Forged Instruments, 284. • 1. Statute. 24 & 25 Vict. c. 98, is the consolidating statute oj- the law of JBnglaml and Ireland, relating 'to iitdiotable offences hy forge nj, in force, which, hy s. 56, commenced and tooU effect on the \st of Kmember, 1861, and, hy s. 55, nothing in the statute contained extends to Scotland cveept as exi>ressly therein provided. By 33 & 34 Vict. c. 58, s. 7, the itrovisions of the above act are cetcnded to Scotland. 2. General Pklnciples. Definition.] — Forgery is the false making of an instrument, which purports on the face of it to be good and valid for the purposes for which it was created, with a design to defraud any person or persons. lte.c v. Jones, 2 East, P. C. 991. Prima facie Besemblance.] — In forgery there need not be an exact resemblance ; it is suf- ficient if the tnsti-ument is prima facie fitted to pass for a true instrument. Ret v. Elliot, 1 Leach, C. C. 175, 179 ; 2 Bast, P. C. 951 ; S. P., Heg. T. Mahony, 6 Cox, C. C. 487. By making Mark.] — To make a mark in the name of another person, with intent to defraud the person whose name is assumed, is forgery. lli:v V. Dunn, 1 Leach, C. C. 57 ; 2 East, P. 0. 962. Alteration of Socument.J — It is a forgeiy to alter a document which a party has previously forged himself ; and he may be convicted of forging and uttering it in the state to which it was so altered. Rex v. Kinder, 2 East, P. C. 856. Contents Unknown by Party Signing.] — It is not forgery fraudulently to procure a party's signature to a document, the contents of which have been altered without his knowledge. Reg. V. Chadwicii, 2 M. & Kob. 545. Or forgery fraudulently to induce a person to execute an instrument on a misrepresentation of its contents. Reg. v. Collins, 2 M. & Kob. 461. 'So Tittering Necessary.] — A person may be convicted of forgery with intent to defraud, although the note was found in his custody when apprehended, and never, in fact, uttered by him. Rex V. Crocker, 2 Leach, C. 0. 987 ; 2 N. E. 87 ; K. & R. C. 0. 97. Traud not Effected. ] — Forging an order from Digitized by Microsoft® one to charge certain goods contained in a schedule to his account, and to appropriate part of the proceeds to the forger's own use, done with intent to defraud the principal, is forgery at common law, though the fraud is not effected. Rex V. Ward, 2 East, P. C. 861. Where no Person to be Defrauded.]— A man may be convicted of forging and uttering an in- strument, with intent to defraud, though there is no person in a situation to be defrauded by his act. Reg. v. Xash, 2 Den. C. C. 448 ; 21 L. J„ M. C. 147 ; 16 Jur. 553. Where a person had made alterations in a diploma of the College of Surgeons, to make it appear to be a document issued by the college to him, and had hung it up in his house, and shewed it to certain persons, it was found by the case reserved for the court that he had no intent in forging to commit any particular fraud or spe- cific wrong to any individual : — Held, that he could not be convicted of forgeiy. Reg. v. Hodgson, Dears. & B. C. C. 3 ; 7 Cox, C. C. 122 ; 25 L. J., M. C. 78 ; 2 Jur., N. S. 453. There must be a Document.] — A forgery must be of some document or writing ; therefore the painting an artist's name in the corner of a picture, in order to pass it off as an original picture by that artist, is not a forgery. Reg. v. Closs, Dears. & B. C. C. 460 ; 7 Cox, C. C. 494 ; 27 L. J., M. C. 54 ; 3 Jur., N. S. 1309. B. was in the habit of selling certain powders, wrapped in printed papers, describing their use, and having a printed signature at the end. The prisoner had a number of wrappers printed in imitation of B.'s, so as to deceive persons of or- dinaiy observation, and to make them believe them'to be B.'s ; he then sold spurious powders, wrapped up in these papei'S, as B.'s powders ; and all this was done with intent to defraud : — Held, that there was no forgery. Reg. v. Smitli, Dears. & B. C. C. 566 ; 8 Cox, C. C. 32 ; 27 L. J., M. C. 225 ; 4 Jur., N. S. 1003. Mark made with Marksman's Assent.] — The 11 & 12 Vict. c. 63, directs that the votes for the election of membei'S of local boards of health shall be given by means of voting papers, and by s. 25, " if any voter cannot write, he shall affix his mark at the foot of a voting paper in the presence of a witness, who shall attest and write the name of the voter against the same, as well as the initials of such voter against the name of every candidate for whom the voter intends to vote." The defendants, who took an active part on behalf of some of the candidates, went to the houses of voters who were , marksmen, to assist in filling up the voting papers, and having obtained the express or implied consent of voters or members of their families, filled up the papers with the proper names and marks of the voters, and put their own names as attesting witnesses without obtaining the actual signatures or marks of the parties themselves : — Held, that this did not constitute the offence of forgery at common law. Reg. v. Hartshorn, 6 Cox, C. C. 395. 3. PAETICULAE OFFENCES. a. Bank Notes. Forging, Altering or Uttering.]— By 24 & 25 Vict. c. 98, s. 12, whosoever shall forge or alter, CRIMINAL 'LAW— Forgery and Uttering Forged Instruments. 225 ())• shall offer, litter, dispose of or put off, hnow- ■hig the same to be forged or altered, any note or bill of exchange of the Banh of England or of the Hanh of Ireland, or of any other body cor- porate, convpany or person cari'ying on the busi- ness of banliers, commonly called a banh note, a banlt, bill of exchange, or a banJipost bill, or any indorsement on or assignment of any banh note, banh bill of exchange or banlt post bill with intent to defraud, shall be guilty of felony, and, being conricted thereof, sliall be liable, at the discretion of the court, to be hept in penal scr- ritudefor life, or for any term not less than fee ■years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without soli- tary conjintment. 226 Purchasing or Beceiving.] — By a. 13 i'l'CT', without lawful autliority or excuse (the proof whereof shall lie on the party accused), shall purchase or receive from any otlisr pcrsmi, or have in his custody or possession, any forged ianh note, banh bill of exchange or bank post hill, or blank bank note, blank bank bill of exchange or blank bank post bill, knovyiiig the same to be forged, shall be gvilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be luipt in penal servitude for any term not exceeding fourteen years, and not less thanjixe •years (27 & 28 Vict. c. 47), or to be imprismud for any term not exceeding two years, with or without hard labour. Putting off. ] — Giving to a confederate a forged bank note, that he may utter it, is a disposing and putting away thereof. Hex v. Palmer, E. & E. C. C. 72 ; 1 N. E. 96 ; 2 Leach, C. C. 978. And see Brooks v. Warwiek, 2 Stark. 380. What is Forging.] — The changing the figure 2 into the figure 5, in a bank note (220Z. to 250^.), is forging and counterfeiting a bank note. Ret' v. Dawson, 1 Stra. 19 ; 2 East, P. C. ■978. So, the altering a banker's one-pound note, by substituting the word " ten" for the word " one," is a forgery, although it thereby purports to be a note for ten " pound," and not pounds. Bex v. Post, E. & E. C. C. 101. A forged bank note, although the word "pounds" is omitted in the body of it, and there is no water-mark in the paper, is a coun- terfeit note for the payment of money. Rex v. Eliot, 2 East, P. C. 951. See Sanderson v. Piper, 7 Scott, 408 ; 5 Bing. N. C. 425 ; 2 Arn. 58 ; 8 Jur. 773. Expunging, by a certain liquor, a notification of payment of part of the contents of a bank bill, written on the face of it, would sustain an indictment on 8 & 9 Will. 3, c. 20, s. 36, for rasing out an indorsement on such bill. Bex t. Bigg, 2 East, P. C. 882 ; 3 P. Wms. 419. The counterfeit making of any part of a genuine note, which may give it a gi'eater cur- rency, is forgery ; therefore, if a note is made payable at a country banker's or at his banker's in London, who fails, it is forgery to alter the name of that London banker to the name of another London banker, with whom the maker makes his other notes payable after the failure of the first. Bex v. Treble, 2 Taunt. 328 ; 2 Leach, C. C. 1040 ; E. & E. C. C. 164. Instruments for making Paper for Notes of the Bank of England or of Ireland.]— By 24 & 2o Vict. c. 98, 5. 14, whosoever, without laufuL authority or excuse (the proof whereof shall lie , on tlw party accused'), shall make or use, or knowingly have in his custody or possesion, any frame, mould or instrmnent for tJw mahtng of paper with the words "Bank of England " or " Bank of Ireland," or any part of such words intended to resemble and pass for the sa/me, visible in the substance of the paper, or for the making of paper with curved or waving bar lines, or with the laying wire lines tliereofin a waving or curved shape, or with any number, sum or amount expressed in a word or words in roman letters, visible in tlie substance of the paper, or with any device or distinction peculiar to, and appearing in the substance of the paper used by, the Banks of England and Ireland respectively for any notes, bills of exchange or bank post hills of such banks resjiectively, or sliall make, use, sell, expose to sale, utter or dispose of, or knowingly have in his custody or possession, any paper whatsoever with the words " Bank of England " or " Bank of Ire- land," or any part of such words intended to resemble and pass for the same, visible in the substance of the paper, or any paper with curved or leaving bar lines, or with the laying wire lines thereof in a waving or curved shape, or with any number, sum or amount expressed in a word or words in roman letters, appearing vis'ible in the substance of the paper, or icith any device or distinction jicouliar to, and ap- pearing in the substance of the paper used by, the Banks of Ihiglaiid and Ireland respectively for any notes, bills of exchange or bank post bills of such banlts respectively, or shall by any art or contrivance eamse the words " Bank of England " or " Bank of Ireland" or any part of such words intended to resemble and pass for the same, or any device or distinction peculiar to, and ap2)earing in the substance of the paper used by, the Banks of England and Ireland respectively for any notes, bills of exchange or bank 2>ost bills of such banks respectively, to appear visible in the substance of any paper, or shall cause the numerical sum, or amount of any bank note, bank bill of exchange or bank post bill, blank bank note, blank bank Mil of ex- change or blank bank post bill, in a word or icordx in roman letters, to appear visible in, the sub- staiice of the paper whereon the same shall he written or printed, shall be guilty of felony, and, being convicted thereof, sliall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years, and not less than five years (27 & 28 Vict, c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour. By s. 15, nothing in the last jireceding section contaiiied shall prevent any person from issuing any bill of exchange or promissory note lia/cing the amount thereof expressed in guineas, or in a numerical figure or figures denoting the amount thereof in pounds sterling, appearing visible in the substance of the paper upon which the same shall be ivritten or printed, nor shall prevent any person from making, using or selling any paper having waviiig or curved liiies or any otiier devices in tlw nature of water-marks visible in the substance of the paper, not being bar lines or laying wire lines, provided the same are not Digitized by Microsoft® 227 CEIMINAL LAW— Forgery and Uttering Forged Instruments. -so contriTcd as to form the r/roumhvorJi or ten: ture of the jmjin; or to resemble the waolna or purred Im/mff wire lines or bar lines of the ivater-marks of the paper used by tlie Banhs of Jmgland and Ireland rexpeetirely. Plates for Notes, &c., of Bank of England or of Ireland.] -By 24 & 25 Vict. c. 98, =. 16, who- goemir, without latoful authority or excuse (the m-oof whereof shall lie on the party accused'), shall engrave or -in anywise make ujwn any ^late whatsoever, or upon any wood, stone, or other material, any promissory note, bill of exchange, or lank post bill, or part of a pro- missory note, bill of crchnngc, or bank post i)tll, purporting to be a bank note, bank bill j"ament, or make, rise, sell, exjjose to sale, utter or dispose of, or knowingly liare in his eustody or possession, any paper in the suhstancc of which the name or firm of any mieh body corporate, company or person shall appear fisiblc, or by any art or contricance cause the name or firm of any sm-h body cojporate, comjyany or person to apjiear risible, in the swh- staiiee of the j'aper upon which the same shall be written or printed, shall be guilty of felony, and, being coniiated thereof , shall be liable, at the discretion of tlhc court, to be kept in penal servitude for any term not exeeeding fourteen years, and not less than five years (27 & 28 Vict, c. 47), or to be imprisoned for any term, not e.c- ceeding two years, with or withimt hard labour, and with or without solitary confinement. Engraving Plates for Foreign Bills or Notes.] — By s. 19, whosoever, without lauful authority or e.reuse (the proof whereof shall lie em the party accused'), shall engrave or in anywise make upon any plate ichatsoever, or U2}0ii any icood, stoUiC, or other material, any bill of r.r- changc, jjromissory note, undertaking or order for payment of money, or any part of any bill of exchange, promissory note, undertaking or order for payment of money, in whatsoever lan- guage the same may be expressed, and whether the same shall or shall not be or be intended to be under seal, purporting to be the bill, note, undertaking or order, or ]}art of the bill, note, undertaking or order, of any foreign prince or stati; or of any minister or officer in the service of any foreign prince or state, or of any body corporate or body of the like natnre constituted or recognized by any foreign 2>rince or state, or of any person or company of 2>ersoiis resideoit in any country not under the dominion of her Majesty, or shall use, or knowingly have in his custody or possesion, any 2>late, stone, wood or other material upon which any such foreign bill, note, undertaking or order, or any part thereof, shall be engrared or made, or shall knoioingly offer, utter, dispose of or put off, or have in his custody or possessio}i, any 2)iiper upon tohieh any part of any such foreign bill, note, undertaking or order shall be made or printed, shall be guilty of felony, ami, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years, and not less than five years (27 & 28. Vict. e. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary con- finement. (Previous enactments, 43 Geo. 3, c. 139, ss. 1, 2, and 11 Geo. 4 & 1 ■\Vill. 4, c. 66, s. 19.) What within Statute.]— Making on a glass plate a positive impression of an undertaking of a foreign state for the payment of money by means of photography, without lawful authority or excuse, is a felony within this statute. Reg. v. Rinaldi. L. & C. 330 ; 33 L. J., M. C. 28 :*9 L. T. 395 ; 12 W. R. 87. Jointly employing Innocent Agent.] — Three . foreigners were indicted for feloniously engi-aving and making two parts of a promissory note of the Emperor of Russia. The plates were en- graved by an Englishman, who was an innocent agent in the transaction. Two of the prisoners only were present at the time when the order was given for the engraving of the plates ; but they said they were employed to get it done by a third person, and there was some evidence to connect the third prisoner with the other two in subsequent parts of the transaction. The ques- tions left to the jury were — firat, whether the other two, who gave the order for the engravings knew the nature of the instrument ; and secondly, whether all three concurred in the order given. The judge told the jury that, in order to find all three guilty, they inust be satisfied that they jointly employed the engraver, but that it was not necessary that they should all be present when the order was given, as it would be sufli- cient if one first communicated with the other two, and that all three concurred in the employ- ment of the engraver. The jury found the two guilty who gave the order. The third prisoner was acquitted. Reg. v. Mazeau, 9 C. & P. 676. What a Foreign Note,]— The 11 Geo. 4 & 1 Will. 4, c. 66, s. 18, applied to plates of promis- sory notes of persons carrying on the business of bankers in the province of Upper Canada. Reg^ V. Hannon, 9 C. & P. 11 ; 2 M. C. C. 11. The forging and uttering a Prussian treasury note for the payment of one dollar was within 43 Geo. 3, c. 139, s. 1. Rex v. Goldstein, 7 Moore, 1 ; 3 B. & B. 201 ; 10 Price, 88 ; R. & R. C. C. 473. The 43 Geo. 3, c. 139, made to prevent forgery in Great Britain of foreign securities, was not to be understood to require that such securities, should possess the technical properties required by the law of England, it being sufficient if they imported on the face of the whole instrument an undertaking or order for payment of money. lb. Indictment — Form and Contents.] — In an in- dictment for forging, the words, " purporting to be a bank note," mean that the instrument upon the face of it appears to be a bank note ; and the want of such appearance cannot be supplied by the representation of the party uttering it. Rex V. Jones, 1 Leach, C. C. 204 ; 2 East, P. C. 883 ; 1 Dougl. 302. Where an indictment on 41 Geo. 3, c. 57, s. 2, stated that the prisoner knowingly and without any authority from a certain corjjorate company called, &c., had in his custody a certain plate on which was engraved part of a promissory note, purporting to be the promissory note of the company ; and it appeared that this company can-ied on the business of bankere, although in- corporated for a totally different purpose : — Held, that the indictment was bad, having omitted to aver that the company " carried on the business of bankers." Rex v. Catapodi, E. & R. C. C. 65. A bank post bill cannot, in an indictment for forging or uttering, be described as a bill of ex- change ; but it mav be described as a bank bill of exchange. Rex v. Birkeit, R. & E. C. C. 251. b. Bills of Exchangre and Promissory Notes, i. The Offence, ii. Indictment, 236. iii. Evidence, 238. i. The Offence. Statute.]— By 24 & 25 Vict. c. 98, s. 22, xoho- Digitized by Microsoft® ^31 CRIMINAL LAW— Forgery and Uttering Forged Instruments. 232 soever shall forge or alter, or shall offer, vtter, (hs2>ose of or put off, knowing the same to he Jorged or altered, any bill of exehaiige, or any aeoeptanee, indorsement or assignment of any Mil of exeliange, or any promissory note for the 2?ayment of money, or any indorsement or assign- ment of any such promissory note, with intent to ■dtfraud, shall be guilty of felony, and, being eonvieted thereof, shall be liable, at the disere- tion of tlie court, to be hept in penal serritiulc for life, or for any term not less than, Jire years <27 & 28 "Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or imth- out hard labour, and with or without solitary confinement. What are.] — ^Aii instrument payable to the order of A., and directed " at Messrs. P. & Co., bankers," may be described as a bill of exchange in an indictment for forgery. Ren. v. Smith, 2 M. 0. C. 295. A writing directed to A. & Co., requiring them to pay the bearer on demand a sum of money, is not, on an indictment for forgery, a bill of ex- change or an order for the payment of money. Beg. V. Carry, 2 M. C. C. 218. A document in the ordinary form of a bill of exchange, but requiring the drawee to pay to his own order, and purporting to be indorsed by the drawer, and accepted by the drawee, cannot, in an indictment for forgery and uttering, be treated as a bill of exchange. Beg. v. Bartlett, 2 M. & Rob. 362. An instrument drawn by A. upon B., requiring him to pay to the order of C. a certain sum, at a •certain time, " without acceptance," is a bill, and may be so described in an indictment for forgery. Reg. V. Klnnear, 2 M. & Rob. 117. A promissory note for the payment of one guinea in cash, or Bank of England note, was not a note for the payment of money within 2 Geo. 2, c. 25. Bex v. Wilcoelis, 2 Russ. C. & M. 457.. A person forging a seaman's advance note cannot be indicted for foiling or uttering it as a promissory note. Beg. v. Howie, 11 Cox, C. C. 320. Invalid in Form.] — Forging a bill or a note for less than 20s. or 51., which does not comply with the requisites of 17 Geo. 3, c. 30, or any •other bill or note which the legislature has declared void, is not within the statutes against forgery. Bex v. Moffatt, 1 Leach, C. C. 431 ; 2 East, P. C. 954. On an indictment for forging a note, it ap- peared that it was not payable to the bearer on ■demand, or payable in money ; that the maker ■only promised to take it in payment, and that the requisitions of the 17 Geo. 3, c. 30, were not •complied with : — Held, that the forgery of such ■an instrument was not the subject of an indict- ment at common law. Bex v. Burke, R. & R. '€. C. 496. An order for the payment of prize-money, ■ signed in the name of a seaman, was a bill of ■exchange within 7 Geo. 2, c. 22, the forgery of which was felony, although the requisites of 32 Geo. 8, c. 34, s. 2, had not been complied with. Bex v. M'Intosh, 2 East, P. C. 942, 956 ; 2 Leach, 0. C. 883. Signature need not be a Fao-simile.] — In order to complete the offence of forgery, the Digitized by Microsoft® signature need not be an exact fao-simile of that of the person represented, and a slight variance, if not such as would under the cir- cumstances put a person on inquiry, will not suffice to take such a forgery out of the defini- tion ^ of the offence, when applied to the falsely putting the name of an existing person to an instrument, without authority, for the purpose of fraud. P. M. promised to get his mother -in- law, " C. W.'s," name to two notes. He brought the two notes, which in the meantime he had got^ his wife to sign by her maiden name, " A. W.," and handing them over, saying, " Here are the notes." On his trial for forging and utter- ing these notes, the jury found him guilty, being of opinion that, when he got his wife's signature to them, he intended to pass them as the notes of his mother-in-law :— Held, that the convic- tion was right, and the question which had been thus put to the jury was the correct way of leaving it to them. Ben. v. 3Iahony, 6 Cox, C. C. 487. Inchoate Negotiable Instrument — No Drawer' s Name.] — H. purchased goods upon the terms that he should give to the vendors his acceptance for the price, indorsed by a solvent third party. The vendors sent to him for such acceptance and indorsement a document in the form of a bill of exchange, for the price, but without any drawer's name thereon. H. returned this docu- ment accepted by himself, and with what pur- ported to be an indorsement by a solvent third party. This indorsement was fictitious and had been forged by H. No drawer's name was ever placed upon the document : — ^Held, that the document was not a bill of exchange, as it bore no drawer's name, and that H. could not be convicted of feloniously forging or feloniously uttering an indorsement on a bill of exchange. Beg. v. Harper, 7 Q. B. D. 78 ; 50 L. J., M. C. 90 ; 44 L. T. 615 ; 29 W. R. 743 ; 14 Cox, C. C. 574. . Semble, that he might have been convicted of a common-law forgery. lb. The acceptance to what purported to be a bill of exchange was forged. At the time, however, this was so forged, the document had not been signed by the drawer : — Held, that the docu- ment, not having the signature of the drawer attached to it at the time the acceptor's name was forged, was not a bill of exchange. Beg. v. Mo2>sey, 11 Cox, C. C. 143. To constitute the forgery of a bill of exchange, the instrument must be a complete forging; an ac- ceptance to an instrument in the form of a bill, but without the drawer's name, is not within the statute. Beg. v. Butterwick, 2 M. & Rob. 196. The forging a note which, for want of a sig- nature, was incomplete, was not within the statute which made forging notes capital. Bex V. Pateman, R. & R. C. C. 455. No Drawee's Name.]— An indictment for uttering a false bill of exchange is supported by proof of uttering an instrument in form of a bill with a forged acceptance on it, though there is no person named as drawee in the bill. Ben. V. Hawkes, 2 M. C. C. 60. See Peto v. Beynolda,^ Ex. 410; 8. C. (in enw), 11 Ex. 418 ; and Fidder v. Marshall, 9 C. B., N. S. 603. 233 CRIMINAL l^A^N— Forgery and Uttering Forged Instruments. 284 , Payable to or Order.]— Where a prisoner was indicted for forging a bill, and the bill was payable to or order :— Held, that there must be a payee ; forging an instrument payable to or order is not sufficient. lifiT V. Randall, B. & R. C. C. 193. On Unstamped Paper.]— Forging on un- stamped paper a bill or a note which requires a stamp, is as much an ofEence as if it was on stamped paper. Ri:v v. Tlawle.swood, 2 T. E. 60S, n. ; S. P., Rex v. Morton, 2 Bast, P. C. 9.55 ; Rex v. RocuUst, 2 Leaoh, C. C. 703 ; 2 East, P. C. 956. Negotiahility of, not Essential.]— It was not necessary that a note should be negotiable, in order to be a note within 2 Geo. 2, c. 25, so as to bo the subject of an indictment for forging or uttering it. Rex v. Box, E. & R. C. C. 300 ; 6 Taunt. 325. Bill made after Signature forged by another.] If the prisoner writes another's name across a blank stamp, on which, after he is gone, a third person who is in league with him, writes a bill of exchange : — Semble, that this is not a forgery of the acceptance of a bill of exchange by the prisoner. Reg. v. Coole, 8 C. & P. 582. Indorsement, when Forgery.] — Discharging a genuine indorsement, and inserting another, is altering the indorsement, and forgery. Rex v. Birltett, E. & E. C. C. 251. A bill of exchange made payable to A., B., C, D., or order, exeoutrices. The indictment charged, that the prisoner forged on the back of the bill a certain forged indorsement, which indorsement was as follows (naming one of the executrices) : — Held, a forged indorsement. R£(l. V. Wintcrbottom., 2 C. & K. 37 ; 1 Den. C. 0.41. The forging of an indorsement in this country on a bill drawn abroad on a person in this country and payable in this country was an offence within 39 Geo. 3, c. 63. Reg. v. Roberts, 7 Cox, C. C. 422 ; 7 Ir. C. L. B. 325. Forging a bill or a note, purporting to bo pay- able to A. B. or order, is a complete offence, though there is no indorsement upon it in A. B.'s name. Rex v. Birliet, Byl. Bills, 441. By Person knowing he has no Title.] — If a bill of exchange, payable to A. or order, gets into the hands of another person of the same name as the payee, and such person, know- ing that he was not the real person in whose favour it was drawn, indorses it, he is guilty of a forgery. Mead v. Young, i T. E. 28. Alteration of Amount.] — Altering a bill from a lower to a higher sum is forging it ; and a person might have been indicted on 7 Geo. 2, c. 22, for forging such an instrument, although the statute had the word "alter" as well as "forge." Rex v. Teagme. E. & E. C. C. 33 ; 2 East, P. C. 979. ruling in larger Sum than Authorized.] — If a person, having the blank acceptance of another, is authorized to write on it a bill of exchange for a limited amount, and he writes a bill of exchange for a larger amount, with intent to defraud either the acceptor or any other person ; this is forgery. Jtex V. Hart, 7 C. & P. 652 ; 1 M. C. 0. 486. What is or is not a false making of a bill of exchange, is a question of law. lb. Alteration of Date.]— A., being in want of 1.000?., applied to B., who drew a bill for that amount, which A. accepted, payable at three months after date. In a few days B. came to A., and said that he could not get the l,O00Z. bill discounted, as it was too large, and proposed that two bills for 500Z. each should be substituted ; one for 500Z. was drawn by B., and accepted by A. : B., upon this, pretended to destroy the 1,000L bill in A.'s presence, but did not in fact destroy it ; on the contrary, he altered it from a bill at three, to a bill at twelve months : — Held, that this was forgery in B., jvith intent to defraud A. Rear V. Atkinson, 7 C. & P. 669. Drawing Bill or Note in Name of Non-existent or Fictitious Person or Firm.] — If a person authorizes another to sign a note in his name,, dated at a particular place, and made payable at a banker's : and the person in whose name it is drawn represents it to be the name of another person, with intent to defraud, and no such person as the note and the representation import' exists, this is forgery, for it is a false making of an instrument in the name of a non-existing person. Rex v. ParJ/es. 2 Leach, C. C. 775 ; 2 East, P. C. 963, 992. A person who has for many years been known by a name which was not his own, and afterwards: assumes his real name, and in that name draws a bill of exchange, is not guilty of forgery, though the bill was drawn for the purposes of fraud. Rex V. AicJdes, 1 Leaoh, C. G. 438 ; 2 East, P. C. 968> Assuming and using a fictitious name, though for the purposes of concealment and fraud, will not amount to forgery, if it was not for that very fraud, or system of fraud, of which the forgery forms a part. Re,r v. Bontien, E. & R. C. C. 260. Where a prisoner fraudulently used the name of another person for the purposes of his trade, and afterwards accepted a bill in that name : — Held, that he could not be convicted of forgery, unless when he first assumed the fictitious name he contemplated the making of that specific bUU Reg. T. White, 5 Cox, C. C. 290. A bill drawn in fictitious names, where there are no such pei-sons existing as the bill imports, may be a forgeiy. Rex v. Wilkes, 2 East, P. C. 957. It is felony to forge the name of a person, although such person never existed. Rsx v. Bolland, 1 Leach, C. C. 83 ; 2 East, P. C. 958. Writing the acceptance of an existing person to a bill of exchange without authority, or the name of a firm or person non-existing, in accept- ance of a bUl, with intent to defraud, is forgery ; and if a person writes an acceptance in his own name to represent a fictitious firm, with intent to- defraud, it is a forged acceptance ; for if an accept- ance represents a fictitious firm, it is the same as if it represented a fictitious person. Ren. v. Rogers, 8 C. & P. 629. If a person gets another to accept a bill in his true name, intending at the time to represent such name to be the name of another person; for the purposes of fraud, it is a forgery. Req. v. Mitchell^ 1 Den. C. C. 282. A receipt indorsed on a bill of exchange in a fictitious name is a forgery, although it does not purport to be the name of any particular person. Digitized by Microsoft® 235 CEIMINAL -LAW-Forgery and Uttering Forged Insttmients. m:x V. Taylor, 1 Leaoh, 0. C. 215 ; 2 East, P. C. Signing a money order in an assumed name is torgery. If the name was assumed to defraud the pei-son to whom such order was given, though the prisoner had borne other names unknown to the prosecutor, who knew him only by the assumed name. Ilea- v. Franeia, B. & R. C. C. 209 If, on an indictment for forging a 'bill "of ex- change It IS proved that the prisoner assumed a false name for the purpose of pecuniary fraud, connected with the forgery, the drawing, accept' mg, or indorsing of such bill of exchange, in such false or assumed name, is forgerv Ri-x v Peacoeh, E. & R. t!. C. 278. Where a name made use of by a prisoner in a forged mstrument is assumed by him with the intention of defrauding the prosecutor, it is forgery, though the prisoner's real name would have earned with it as much credit as the assumed name. Rex v. WUley, R. & R. C. G. 90. Indoi-sing a bill in a fictitious name is a forgery though the bill would have then been equally negotiable if indorsed by the prisoner in his own name, if the fictitious name was used in order to defraud. Rex v. Marslmll, R. & R. C C 75 ■ S. P., Rex V. Taft, 1 Leach. C. C..172 ; 2 East! P. C. 959. ' Addingf Address to Name of Drawer.]— Putting an address to the name of a drawer of a bill of exchange while the bill is in the coui-se of com- pletion, with intent to make the acceptance appear to be that of a different existing person, is forgery. Reg. v. BlenMn-tnp, 2 Cox, C. C. 420 ; 1 Den. C. C. 276 ; 2 C. & K. 531 ; 17 L. J., M. C. 62. Address of different Person given, though Name the same.] — If there are two persons of the same name, but of different descriptions or additions, and one signs his name with the description or addition of the other for the purpose of fi-aud, it is forgery. Rex v. Weli, Bayl. Bills, 4.S2. Addition of False Address, but no Descrip- tion.] — ^A nui-seryman and seedsman got his fore- man to accept two bills, the acceptances having no addition, description, or address, and after- wards, without the acceptor's knowledge, he added to the direction a false address, but no description, and represented in one case that the acceptance was that of a customer, and in the other case that it was that of a seedsman, there being in fact no such person at the supposed false address : — Held, that in the one case (the former) he was not guilty of forgery of the accept- ance, but that in the other case he was. Reg. V. Epps, 4 F. & F. 81. Bill Drawn and Accepted by Person not Living at Address given.] — Where a bill was drawn by the prisoner, and addressed to " Mr. T. B., Baize Manufacturer, Romford," and puiported to have been accepted by him, payable when due at No. 40, Castle-street, Holbom, and it was proved that no such person resided at Romford, and that there was no baize manufactory there, and that he did not live at Castle-street ; and the prisoner produced witnesses to prove that the acceptance was of the handwriting of T. B., but that he had never carried on the business of a baize manufac- turer at Romford, nor resided at Castle-street : — 236 Held, that although this was a case of gi'oss fraud. It did not amount to forgeiy, as the accept- ance was written by a person of the name of 2^8^- l'^^:lti^^'''''' '""^ n. ; 3 B. & B. Under Presumption or Assumption of Autho- rity.]— If A. puts the name of B. on a bill of exchange as acceptor, without B.'s authority, ex- pecting to be able to meet it when due or ox- pecting that B. will overlook it ; this is forgerv But if A. either had authority from B., or from the course of their dealings, bona fide considered that he had such authority, it is not forserv Rex V. Forles, 7 C. & P. 224 ; ,S'. i>., Jtea v Parhli, 8 C. & P. 94. ' ■'' ^ The fact that on three or four previous occa- sions, when he had drawn bills in that way the party whose name was used had paid them, even without remark or remonstrance, would afford fair ground for the belief that he had such autho- rity. Reg. V. Beard, 8 C. & P. 143. If a person, wishing to raise money, puts the name of- another on a bill without his authority intending to pay the bill when due, and believ- ing that he should be able to do so ; this is forgery. lb. So, if a person, relying on the kindness of another (a near relation for instance), uses his name on a bill without authority, trusting that the pei-son will pay it, rather than there should be a criminal prosecution on the subject ; this also is a forgery. Ih. If a person knows the acceptance of a bill of exchange tobe.forged, and uttered it as true, and believed that his bankers, to whom he uttered it, would advance money on it, which they would' not otherwise, that is ample evidence of an in- tent to defraud, and evidence upon which a jury ought to act : and a person is not the less guilty of forgery because he may intend ultimately to take up the forged bill, and may suppose that the party whose name is forged will be no loser ; and the fact that the bill has been since paid by the forger will make no difference, if the offence was complete at the time of the uttering. Req V. Gcaok, 9 C. & P. 499. By Procuration.]— By 24 & 25 Vict. o. 98, s. 2i, whosoever, with intent to defraud, sliall draw, malie, sign, accept or indorse any bill of exchange or promissory note, by procuration or otherwise, for, in the name, or on the account nfamj other person, without lawful authority or excuse, or shall offer, utter, disjjose of, or put off, any such bill or note so drawn, made, signed, accepted, or indorsed, by procuration or other- wise, without lawful authority or excuse as aforesaid, hnoioiiig the same to hare been so drawn, made, signed, accepted, or indorsed as aforesaid, sliall be guilty of felony. Before this Enactment.] — A prisoner falsely averring an authority to indorse a bill of exchange for T. Tomlinson, wrote on the back of the bill, " Per procuration Thomas Tomlinson, Emanuel White." The bill was thereupon dis- counted, and the prisoner went off with the money : — Held, no forgeiy. Reg. v. White, 1 Den. C. C. 208; 2 C. & K. 404; 2 Cox, C. 0. 210. ii. Indictment. Form and Validity of.] — A count charging a Digitized by Microsoft® 237 CEIMINAL LAW — l^orcjery and Uttering Forged Instruments. 238 prisoner with uttering a forged bill, with intent to defraud A., and setting out the bill with the acceptance upon it, is not supported by proving that the prisoner uttered the bill, and that the acceptance on it was a forgery. Rex v. Horwell, 6 0. & P. 148 ; 1 M. C. 0. 405. In an indictment for forgery, a count which, since 11 Geo. 4 & 1 Will. 4, c. 66, charged, that the prisoner "did falsely make, forge and coun- terfeit, and did cause and procure to be falsely made, forged and counterfeited, and did will- ingly act and assist in the false making, forging and counterfeiting " a bill of exchange, was good ; as were counts charging that he did utter and publish as true, and did after dispose of and put away the bill. Hex v. Brewer, 6 C. & P. 363. An indictment on 2 Geo. 2, c. 25, charging that the prisoner feloniously altered a bill by malting, forging and adding a cipher, was good, though the words of the statute were, " if any person shall falsely make or forge, counterfeit," &c. Bex V. Msworth, 2 Bast, P. 0. 986. Intent to Defraud.] — A forged bill of ex- change, given in payment to one of two known partners, may be laid to be forged with intent to defraud that one, the partnership dealing having been conducted by him only. Beg, v. JTamcm, 2 M. C. C. 245 ; Car. & M. 334. Purport and Tenor Eepugnant.] — An indict- ment for forging a bill of exchange directed to Ransom, Moreland and Hammei'sley, stating that it purported to be directed to George Lord Kinnaird, William Moreland and Thomas Ham- mersley, by the names and description of Ran- som, Moreland and Hammersley , is bad ; for the purport and tenor are repugnant. Rex v. Gil- christ, 2 Leach, C. C. 657 ; 2 East, P. C. 982. "Purporting."] — An indictment, charging that the defendant, having in his possession a bill of exchange, purporting to be directed to one J. King, by the name and description of J. Ring, forged the acceptance of the said J. King, is bad, because the word " purport " means what appears on the face of the instrument, and the bill did not purport to be drawn on J. King. Rex V. Reading, 1 Bast, 180, n. An indictment for forging a bill of exchange, stating it to be signed by H. H. instead of pur- porting only to be so signed, the signature itself being a forgery, is bad. Rex v. Carter, 2 East, P. C. 985. Attestation after Prisoner's Sigfaature.] — An indictment stating the tenor of a note is sus- tained by proof that the attestation of the wit- ness, and the words " M. W., her mark," were added after the prisoner's signature, though on the same occasion. Bex v. Dunn, 2 Bast, P. C 976. Date not Stated.] — In an indictment for forg- ing a promissory note, the forged note might, under 2 & 3 Will. 4, c. 123, s. 3, be described as " a certain forged promissory note, for the pay- ment of 29Z.," without stating the date. Bex v Burgiss, 7 C. & P. 490. On Poreign Notes or Bills.]— An indictment for uttering a forged bill of exchange set out as follows : — " k 4 mois de date par cette lettre de change, eI I'ordre de nous-mSme la somme de 500 livres sterling," — and translated, — " at four months' date by this bill of exchange, to the order of ourselves, the sum of five hundred pounds sterling," is good. Bex v. SzndursMe, 1 M. C. C. 429. Translation Necessary.] — Where a pri- soner ■ was convicted of forging an instrument (purporting to be a Prussian note) in a foreign language, but no count in the indictment con- tained an English translation of the note : judg- ment was ordered to be arrested. Rex v. Gold- stem, 7 Moore, 1 ; 10 Price, 88 ; 8 B. & B. 201 ; R. & R. C. C. 473. Foreign notes were set out in an indictment in the original language, but the translation omitted some words which were in the margin or a border round the body of the note, and de- noted the year in which the notes were issued, and it appeared that without these words the notes would not be capable of being circulated in the country to which they belonged : — Held, that the translation was imperfect. Reas v. Harrit, 7 C. & P. 429. Describing a foreign note wholly in the En- glish language is not sufficient in an indictment for forgery, notwithstanding the 2 & 3 Will. 4, c. 123, s. 3 ; but this objection, provided the de- scription was in the words of the statute creating the offence, could only be taken advantage of by demurrer. IT). An indictment under 11 Geo. 4 & 1 Will. 4, c. 66, s. 19, for feloniously having in possession plates upon which were engraved a promissory note for payment of money of a foreign prince inaccurately setting out the note in the foreign language and the translation, and with fac- similes of the note not ingrossed in the indict- ment, but attached thereto on paper, was bad. Bex V. Warslianer, 1 M. C. C. 466. Setting out Notes.] — Sewing to the parcli- ment on which the indictment is written im- pressions of forged notes taken from engraved plates, is not a legal mode of setting out the notes in the indictment. Bex v. Harris, 7 0. & P. 429. Allegation that it is Payable in England.]— An indictment under 11 Geo. 4 & 1 Will. 4, c. 66, for uttering a forged foreign promissory' note j need not allege it to be payable in England. Reg. V. Lee, 2 M. & Rob. 281. ,„*f*f ^y Verdict.] — Counts under 2 & 3 W]ll. 4, e. 123, s. 3, stating the plates to have engi'aved on them, in the Polish language a promissory note for payment of money, to wit for the payment of five florins, purporting to bo a promissoiy note for payment of money of a certam foreign prince, without stating the value, r'n ??°i.^**^'' '''='^'^'«'- -»''* ^- WarsUaner, 1 M. C. C. 466. ' Describing a foreign note wholly in the En- glish langiiage is not sufficient, but this objection is cured after verdict by 7 Geo. 4, c. 64, s. 21 if the description was in the words of the statute creating the offence. B^x v. Harris, 7 C. & P. iii. Evidence. w+l°i®^*A^ *i^* Prisoner thought he had Autho- rity.] -A letter which had passed thi'ough the Digitized by Microsoft® 239 CRIMINAL 'LAW— Forgery and Uttering Forged Instruments. 240 post-office before an alleged forgery, is admissible for the prisoner, in order to shew that he sup- posed he had a right to cause a name to be signed. Reg. V. Clifford, 2 0. & K. 202. A letter from the prisoner to the prosecutor left unanswered is sufficient to warrant the jury in presuming a bona fide belief in an implied authority. Meg. v. Beardsall, 1 F. & F. 629. On an indictment for forging and uttering a bill, knowing it to be forged, it appearing that the person whose name was used was informed of it at the time, and did not repudiate it ; the jury was directed to acquit, though he was called as a witness, and denied any previous authority. Rug. v. Smith, 3 F. & F. 504. To Negative Express or Implied Authority.] — Proof that a prisoner on uttering a note repre- sented the maker as living at a particular place, and in a particular line of business, the evidence that it is not that person's note is sufficient to , prove it a iorgery, especially if the prisoner is \the payee of the note ; and proof that there is another person of the name in a different line of business will not make it necessary for the prosecutor to shew that it was not that person's note. 7?(v v. Hampton, 1 M. C. C. 255. Where a bill purported to be accepted by " Samuel Knight, Market-place, Birmingham : " — Held, on an indictment for the forgery of the acceptance, that the result of inquiries made at Birmingham by the prosecutor, who was not acquainted with the place, was evidence for the jury, though neither the best nor the usual evidence given to prove the non-existence of a party whose name is used. Rex v. Khig, 5 G. & P. 123. The prisoners were indicted for forging a bill of exchange. The bill purported to be accepted by one George Smith, and was directed to George Smith, draper, Birmingham. The direction was in the handwriting of the prisoner, White, but the acceptance was not. George Smith, a draper, at Birmingham, proved that the acceptance was not his ; that he had made personal inquiries, and consulted a directory, and could not dis- cover that there was any other George Smith, a draper, at Birmingham. Letters were produced from White to Davis, in which the former re- quested the latter to get him blank bUls, signed by men of straw : — Held, first, that there was evidence to go to the jury that the George Smith' who was called was the only draper of that name in Birmingham ; and. secondly, that there was evidence for the jury that the name, George Smith, in the acceptance was fictitious, and that the acceptance was not the genuine acceptance of a man of straw signing his real name. Reg. V. White, 2 F. & F. 554. On an indictment for uttering a forged cheque, it is sufficient to disprove the handwriting of the supposed maker ; and he need not be called to disprove an authority to others to use his name ; circumstances shewing guilty know- ledge are enough. Reg. v. Hurley, 2 M. & Rob. 473. Proof of Acceptance.]— If a bill purporting to be accepted by J. K. is shewn to him, and he declares it to be a good bill, that is a sufficient proof that he wrote the acceptance. Rex v. Hevey, 1 Leach, C. C. 232. Digitized by Microsoft® 0. ChecLues. \_See and eom^pare cases under preeeding sub- head.l Statute.]— By 24 & 25 Vict. c. 98, s. 25, when- ever any ehe/iue or draft on any hanker shall be crossed loith the name of a banker, or with two transi-erxe lines with the lonrds •' and cotiipany,"' or any abbreviation thereof, whosoever shall ohliteraie, add to, or alter any sueh crossing, or shall offer, utter, dispose of, or put off any cliegue or draft whereon any such obliteration, addition, or alteration has been made, Itnowing the same to ha-oe been made, with intent, in any of the cases aforesaid, to defraud, shall be guilti/ of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be lapt in penal servitude for life or for any term not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exoeeding two years, with or without hard labour, and loith or toithont solitary confinem.ent. (Previous enact- ment, 21 & 22 Vict. c. 79, s. 3.) What is a Cheque.]— A forged draft on a banker was an order for the payment of money within 7 Geo. 2, c. 22, although the person whose- name was forged never kept cash with, or was^ known to, the banker. Rex v. Loehett, 1 Leaoh, C. C. 94 ; 2 East, P. C. 940. A cheque in which the order of the words is- transposed (e. g., to "pay A. B. seventeen or bearer pounds ") is still a cheque, and an order • for the payment of money, for the forgery of which an indictment will lie. Reg. v. Boreham,. 2 Cox, C. 0. 189. Incomplete Instrument.] — The practice was for a majority of the officers of a parish to- draw cheques on the treasurer of a union ; and' one of their blank cheques, filled up for \l. Zs. Sd., had a note at the bottom — ■" Unless this cheque is signed by a majority of the parish officers, it will not be cashed." 'This cheque was signed by one of the officers while it was for 11. 3s. 6d. ; it was altered to SI. 3s. 6d., and when cashed by the treasurer had the signatures of a majority of the officers to it : — Held, that if the cheque was. fraudulently altered when it had only one sig- nature to it, this was no forgery, as it was then; an incomplete instrument. Reg. v. Turpin, 2 C. & K. 820. Forged Indorsement of valid Cheque.] — Forging and uttering an indorsement on a cheque, with a view to get it cached by the- credit of the name, will support a conviction for forgery, although the cheque is valid. Reg. v.. Warden, 3 F. & F. 82. Alteration after Cheque Cashed.] — The drawer- of a cheque on a bank which was duly honoured, and returned to him by the bank, afterwards; altered his signature in order to give it the appearance of forgery, and to defraud the bant and cause the payee of the cheque to be charged with forgery : — Held, that this alteration did not constitute a forgery. Brittain v. Banh of Lon- don, 3 F. & F. 465 ; 8 L. T. 382 ; 11 W. R. 569.. But see 2 Russ. C. & M. 719. Filling in larger Amount than Authorized.] — Where a party receives a blank cheque, signed 241 CRIMINAL LAW-— Forgery and Uttering Forged Instruments. 242 with directions to fill in a certain amount, and lie fraudulently fills in a larger amount, and tievotes the proceeds of the cheque to other purposes, he is guilty of forgery. Beg, v. Wilson, 2 Cox, C. C. 426 ; 1 Den. C. C. 284 ; 17 L. J., M. C. 82 ; 2 C. & K. 527. A. gave to B., his clerk, a blank cheque, and directed him to fill it up with the amount of a bill of exchange, and expenses (for which A. had to provide, and which amount B. was to ascer- tain), and get the cheque cashed, and pay the amount to Mr. W., and take up the bill. The bill was for 156Z. 9s. 9d., the expenses about 10«. B. fiUed up the cheque with the sum of 250Z., got it cashed, and kept the whole amount, alleging that 'it was due to him for salary : — Held, that this was forgery, and that this was so even if B. bon^ fide believed that the sum of 2501. was due to him from A., or even if it was really due to Mm. lb. So filling in a form of cheque already signed, with blanks left in it for the sum, without autho- rity, is a forgery. Flower v. Slmvi, 2 C. & K. 703. Cheque signed in Fictitious Name.] — The prisoner Robert Martin, in payment for a pony and cart purchased by him from the prosecutor, "drew a cheque in the name of WilKam Martin in the presence of the prosecutor upon a bank at which he, the prisoner, had no account, aud gave it to the prosecutor as his own cheque drawn in his own name. At the time he drew the cheque the prisoner knew that it would be, as in fact it was, dishonoured. The prosecutor received the ■cheque in the belief that it was drawn in the prisoner's own name : — Held, that the prisoner was not guUty of the offence of forgery. The resolution in Dunn's case (1 Lea. 0. C. 59) : " In •all forgeries the instrument supposed to be forged must be a false instrument itself ; and if a person give a note entirely as his own, his sub- scribing it by a fictitious name will not make it •a forgery, the credit there being wholly given to himself, without any regard to the name, or any relation to a third person," followed and ap- proved. Reg. V. Martin, 5 Q. B. D. 34 ; 14 Cox, C. C. 375 ; 49 L. J., M. 0. 11 ; 41 L. T. 531 ; 28 •W. R. 232 ; 44 J. P. 74. Evidence to go to Jury that Drawer a Fictitious "Person.] — On an indictment for forging a cheque ■purporting io be drawn by G. A. upon Messrs. J. L. & Co., proof that no person named G. A. keeps an account with or has any right to draw ~on Messrs. J. L. & Co., is prima facie evidence that G. A. is a fictitious person. Bex v. Bacli- ler, 5 C. & P. 118. tfpon an indictment for the forgery of a cheque, ■dated Knighton, and purporting to be drawn by John Hust, it was proved that no John Hust lived at Knighton who would be likely to keep ■an account with a banker : — Held, evidence to go to the jury that John Hust was a fictitious person. Beg. v. Aslihy, 2 F. & F. 560. Evidence of Intent to Defraud — Presentment.] — A forged cheque on the W. bank was presented 'for payment at the S. bank, where the supposed ■drawer never kept cash : — Held, that this was ■sufficient evidence of an intent to defraud the partners of the bank, although there was no probability of their paying the cheque, even if it had been genuine. Besc v. Crowtlier, 5 C. & P. 516. d. Documents Purporting- to be made Abroad. Statute.]— By 24 & 25 Vict. c. 98, s. 40, where the forging or altering any writing or matter whatso- ever, or the offering, uttering, disposing of, or put- ting off amy writing or matter tuhatsoerer, know- ing the same to ie forged or altered, is in this act expressed to be an offence, if any person shall, in England or Ireland, forge or alter, or offer, utter, dispose of, or put off, knowing the same to be forged or altered, any such writing or matter, in wJiatever place or country out of England and Ireland, whether under the dominion of lier Majesty or not, such writing or matter may purport to be made or may liave been made, and in whatever language tjte same or any part thereof may be expressed, erery such person, and every person aiding, abetting , or counselling such person, shall be deemed to be an offender ivithin the meaning of this act, and shall be painisliable thereby in the same mamier as if the writing or matter had puiported to be made or had been made in England or Ireland; and if any person shall in England or Ireland forge or alter, or offer, utter, dispose of, or put off, linoioing the same to be forged or altered, any bill of ex- change, or any promissory note for the payment of money, or any indorsement on or assignment of any bill of exchange or promissory note for tlie jiayme^it of mo7iey, or any acceptance of any bill of exchange, or any undeiiaking, warrant, order, a/wthority, or request for the payment of money, or for the delivery or transfer of any goods or security, or any deed, bond, or writing obligatory for the payment of money (whether such deed, bond, or writing obligatory shall be inade only for the payment of money, or for the payment of money together with some other ]>ur- pose), or any indorsement on or assignment of any suehundertaMng, warrant, order, authority, request, deed, bond, or writing obligatory, in whatsoever place or country out of England and Ireland, whether under the dominion of her Majesty or not, the money payable or secured by such bill, note, undertaking, ivarrant, order, authority, request, deed, bond, or ivriting obli- gatory may be or may pmrport to be payable, and in whatever language the same, or any part thereof, may be eapressed, and lohether such bill,'note, undcHahing , warrant, order, authority, or request be or be not under seal, every such person, and every person aiding, abetting, or counselling such person, shall be deemed to be an offender within the meaning of this act, and shall bepunishable thereby in the same manner as if the mon^y had been payable, or had purported to be payable, in England or Ire- land. [Similar to -11 Geo. 4 & l' Will. 4, c. 66, s. 30.) Uttering in England— Circulated Abroad.] — On an indictment for forging and uttering a cheque or an order for the payment of money, it appearing that the cheque was dated as if drawn abroad ; but thei'c being evidence, by comparison of handwriting, that it was drawn abroad, and also evidence that he caused it to be presented to a banker abroad, through whom it was pre- sented in this country without a stamp : — Held, that the prisoner might be convicted of uttering it in this country, if he set it in circulation abroad. Beg. v. Taylor, 4 F. & F, 511. Digitized by Microsoft® 243 CEIMINAL LA^V— Forgery and Uttering Forged Instruments. 244 e. Court Rolls. Statute.]— By 24 & 25 Vict. c. 98, s. 30, whoso- ever slMll forge or alter, or sJuiU offer, utter, , dispose of, or put off, knowing the same to be forged or altered, any court roll, or oopy of any court roll, relating to any copylhold or customary estate, ivith intent to defraud, shall he guilty of felony. t. Debentures. Statute.]— By 24 & 23 Vict. c. 98, s. 26, toho- soever shall fraudulently forge or alter, or shall offer, utter, dispose of, or put off, hnowlng the mine to le forged or fraudulently altered, any debenture issued wider any lawful authority wliatsoever, either within lier Majesty's do- minions or elsewhere, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be hept in penal servitude for any term not exceeding fourteen years, and not less thanfice years (27 & 28 Vict. c. 47), or to be imprlsoiiedfor any term not exceed- ing two years, with or without hard labour, and loith or without solitary confinement. g. Deeds or Bonds. Statute.]— By 24 & 25 Vict. c. 98, s. 20, who- soever, with intent to defraud, shall forge or alter, or shall offer, utter, dispose of, or put off, hnowing the same to be forged or altered, any deed, or any bond or writin// obligatory, or any assignment at law or in equity of any such bond or wnting obligatory, or shall forge any name, liandwriting , or signature purporting to be the Tiame, handwriting, or signature of a witness attesting tlie execution of any deed, bond, or writing obligatory, or shall offer, titter, dispose of, or put off any deed, bond or tvriting obliga- tory having thereon any such forged name, liand- writing, or signature, Tinowing the same to be forged, shall be guilty of felony, and, being con- meted thereof, shall be liable, at the discretion of the court, to be hept in penal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary con- finement. {Former provision, 11 Geo. 4 & 1 Will. 4, c. 66, s. 10.) Bond — What is.] — On an indictment for forgery of an administration bond on adminis- tration granted of the effects of S., it was objected, that 22 & 23 Car. 2, c. 10, requiring the bond to be given by the party to whom administration was granted, and not by the party that was entitled to administration, no forgery was made out ; but the bond was a good bond within the statute, having been given by the party to whom, in fact, administration was granted : — Held, that this was not a good objec- tion. Reg. V. Barber, 1 C. & K. 434. Deed — What is. J — ^A power of attorney to transfer government stock, signed, sealed and delivered, was a deed within 2 Geo. 2, c. 25, s. 1. Rex V. Fauntleroy,! M. 0. G. 52 ; 2 Bing. 413 ; 10 Moore 1 ; 1 C. & P. 421 ; S. P., Rex v. Pringle, 1 M. C. C. 68. See now 24 & 25 Viet. c. 98, ss. 2, 4, post, col. 235. . -^ — Forgery of — Particular Statutory Pro- visions as to Form.]- Forginga deed was within 2 Oreo. 2, c. 25, s. 1, although there may have been subsequent directory provisions by other statutes, that instruments for the same purpose as such forged deed shall be in a particular form, or shall comply with certain requisites, and the forged deed was not in that form, and did not comply with those requisites ; for the directory provisions do not make the deed (although out of the form prescribed, and without the requi- sites) wholly void. Rex v. Lyon, E. & R. C. C. 255. Fraudulent Mortgage by one Executor.] —A son who was heir-at-law to his father, who was one of the executors and trustees of his father's will, though he had not proved the will, and whose christian names and description were identical with those of his father, after his father's death, executed mortgages of freehold and leasehold property of the father and applied the mortgage money to his own purposes. He handed over the title deeds to the mortgagees. The transaction took place without the know- ledge of his mother and sister, who were co-trus- tees and co-executrices with him, and who had proved the will. The mortgage deeds purported to be executed by the absolute owner of the pro- perty, and the solicitor who acted for both parties believed the son to be the absolute owner. The son told him nothing about the father's will. The son took a beneficial interest under the trusts of the father's wiU. Semble, perLindley, L. J. : — The son could have been convicted of forgery by reason of his executing the mortgage deeds. Cooper, In re. Cooper v. Vesey, 20 Oh. D. 611 ; 47 L. T. 89 ; 30 W. E. 648—0. A. Affirming 51 L. J., Ch. 149 ; 45 L. T. 532 ; 30 W. B. 148. Antedating Deed with Intent to Defraud.] — A deed really executed by the parties between whom it purports to be made, but antedated with intent fraudulently to defeat a prior deed, is a forgery. Reg. v. Ritson, 1 L. E., 0. C. 200 ; 39 L. J., M. C. 10 ; 21 L. T. 437 ; 18 W. B. 73 ; 11 Cox, G. G. 352. A. by deed, bearing date on the 7th of May, 1868, conveyed on that day certain lands to B., in fee. Subsequently, on the 26th of April, 1869, C. produced a deed, bearing date the 12th of March, 1868, pm-porting to be a demise of the same land for a long term of years, as from the 25th of March, 1868, from A. to 0. The alleged lease was executed after A.'s conveyance to B., and ante-dated for the purpose of defrauding B. : — Held, that A. and C. were guilty of forgery. lb. Forging Letters of Orders issued by Bishop.] ■ — The forging of letters of orders issued by a bishop, certifying that on a day and at a place mentioned therein, A. B. was admitted into the holy order of deacons, according to the manner prescribed by the Church of England, and rightly and canonioally ordained deacon, in testimony whereof the bishop had caused his episcopal seal to be affixed thereunto, is not the feloniously forging of a deed within the 24 & 25 Vict. c. 98, s. 20, although such forgery is a misdemeanor at common law. Reg. v. Morton, 2 L. E., C. C. 22 ; 42 L. J., M. C. 58 ; 28 L. T. 452 ; 21 W. E. 629. K 2 Digitized by Microsoft® 245 CRIMINAL LAW — Forgery and Uttering Forged Instruments. 246 Indictment — Superfluous Description.] — A superfluous description of the instrument forged is not material. Therefore an indictment for forging a "bond, laying it to be " a bond and writing obligatory," was good upon 2 Geo. 2, c. 25, though both terms were used in the statute ; and a bond is a writing obligatory, though the converse doesncthold generally. JRex t. Dunniit, 2 East, P. C. 985 ; 2 Leach, C. C. 581. Intent to Defraud avowed generally.] — Since 14 & 15 "Vict. c. 100, s. 8, it is sufficient, upon an indictment for forgery and uttering a bond, to lay the intent generally to defraud , and the prisoner may be convicted, though it does not appear that he had any intention ultimately to defraud the party whose signature he had forged, he having defrauded the party to whom he uttered the instrument. Ren. v. Trenfield, 1 F. & P. 43. Deed need not be set out Verbatim.] — A count for uttering a forged deed describing it as " a certain deed purporting to be made on the 1st day of March, 1837, between E. W. of the one part, and D. G. of the other part, purporting to be an under lease by the said K. W. to the said D. G. of certain lands, tenements and pre- mises therein mentioned, subject to the payment of the yearly rent of 8Z., payable on the first day of March in every year, and purporting to con- tain a covenant by the said D. G. with the said R. W. for the payment by the said D. G. to the said E. W. of the yearly rent of SI.," is good, under 2 & 3 "Will. 4, c. 123, s. 3. Req. v. Davies, 9 C. & P. 427 ; 2 M. C. C. 177. A count for forging or uttering a deed, pur- porting to be a lease of certain premises, described shortly, is good, without setting it out verbatim. lb. The instrument forged may be described as a deed, without setting it out, or averring facts to shew that it was such a deed as might be the subject of larceny. Reg. v. Collins, 2 M. & Eob. 4C1. h. Evidence, Instruments of. Statute.]— By 24 & 25 Vict. c. 98, s. 29, who- soever shall forge or fraudulently alter, or shall offer, utter, dispose of, or put 'off, knowing the same to ie forged or fraudulently altered, any i list I'^iment, whether written or printed, or partly written and partly printed, which is or shall he made ccidencr hy any aet passed or to Repassed, and for which offence no punishment is herein promded, shall ie guilty of felony, and, heing convicted thereof shall he liahle, at the discre- tion of the court, to he kept in penal serritvde for any term not exceeding seven years, and not less than five years (27 & 28 Vict. o. 47), or to he imprisoned for any term not exceeding two years, ivith or without hard labour, and loith or zvithout solitary confinement. Indictment.]— An indictment stating that the prisoner forged a certain paper instrument, partly printed and partly written, in the words and figures following, that is to say, &o., was bad in form, as it did not state what the instrument was in respect of which the forgery was com- mitted, nor how the party signing it had authority to sign it. Rex v. Wilcox, E. & E C. C. 50. i. Ezchequer Bills or Bonds. Altering, Uttering, or Putting-off.] — By 24 & 25 Vict. c. 98, s. 8, whosoever shall forge or alter, or shall offer, utter, dispose of, or put off, know- ing the same to he forged or altered, any Ex- chequer bill or Exchequer bond or Exchequer debenture, or any indorsement on or assignment of any Exchequer bill or Exchequer bond or Ex- chequer debenture, or any receipt or certificate for interest accruing thereon, unth intent to de- fraud, shall be guilty of felony, and being con- victed tlierenf, shall he liahle, at the discretion of the cowrt, to be kept in penal ■•servitude for life, or for any term not less than Jive years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary con- finement. Making or Having in Possession Instruments for Making.] — Bys. 9, whosoever without law- ful authority or excuse (the proof lehercof shall lie on the party accused'), shall mahe, or cause or procure to be made, or shall aid or assist in making, or shall knowingly hare in his custody or possession, any frame, mould, or instrument having therein any words, letters, figures, marks, lines, or devices peculiar to and appearing in the suhstatice of any paper provided or to be pro- vided or used for Exchequer hills or Exchequer bonds or Exchequer debentures, or any machinery for workiyig any threads into the substance of any paper, or any such thread, and intended to imitate such words, letters, figures, marks, lines, threads, or devices, or any plate peculiarly em- XJloyed for printing such Exchequer bills, bonds, or debentures, or any die or seal jieeuliarly used for preparing any such plate, or for sealing such Exchequer bills, bonds, or debentures, or any plate, die, or seal intended to imitate any such plate, die, or seal as aforesaid, shall be guilty of felony, and, being convicted thereof, shall be liable, at tlie discretion of the court, to be kept in picnal servitude for any term not exceeding seven years, and not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confine- ment. Making Paper for Purpose of Forging.]— Bv s. 10, whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall make, or cause or procure to he made, or aid or assist in making, any paper in tits substance of lohich shall appear any words, letters, figures, marks, lines, threads, or other donees peculiar to and appearing in the sub- stance of any paper provided or to be provided or used for such Exchequer bills, bonds, or de- bentures, or any 2)art of such words, letters, figures, marks, lines, threads, or other devices, and 'intended to vmitate the same, or shall know- ingly hare in his custody or 2}ossession any paper whatsoever in the substance whereof shall appear amy such words, letters, figures, marks, lines, threads, or devices as aforesaid, or any parts of such words, letters, figures, marks, lines, threads, or other devices, and intended to imitate the sams, or shall camse or assist in causinn any such words, letters, figurcs,marks, lines, threads, or devices as aforesaid, or any part of .mch words, letters, figures, marks, lines, threads, or Digitized by Microsoft® 247 CRIMINAL LAW — Forgery and Uttering Forged Instruments. 248 other (Icciccs, and intended to imitate the same, to aj)2H-ar in the suistanee of any papev what- erei; oi' shall tahe or assist in taking any iiii- jjression of anij such plate, die, or seal as in the last pireedincj section mentioned, shall be (juiltij of fdonij, and, licinrj convicted thereof, shall be liable, at the discretion of the court, to be kej)t in penal sercitude for any term not exceeding seren years, and not less than Jice years (27 & 28 Vict. 0. -47), or to be imprisoned for any term not exceeding two years, with or icithout hard labour, and loitJb or mithout solitary confine- not less than fice years (27 & 28 Yiot. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or ■without solitary confinement. (^Former preci- sion, 11 Geo. 4 & 1 Will. 4, c. 06, s. 20.) Uttering.]— If A. gives to B. a forged certifi- cate of a pretended marriage between himself and B., in order that B. may give it to a third party, A. is not guilty of an uttering. Reg. y. Heyiuood, 2 C. & K. 352. 'Purchasing and Having in Possession Paper,] — By s. 11, whosoccer, without lawful authority or excuse (tlie proof whereof shall lie on the party accused'), shall purchase or rceeirc, or knowingly hare in his custody or possession, any paper iiMnufactnred and pirocided hy or under the directions of the Commissioners of Inland Itevenue or Commissioners of her 3fajesty's Treasury, for the purpose of being used as Ex- chequer bills or Exchequer bonds or Exchequer debentures, before such paper shall have been duly stamped, signed, and issued for public use, or any such plate, die, or seal as in the last two preceding sections mentioned, shall be guilty of a misdemeanor, and, being concicted thereof, shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding three years, with or loithottt hard labour. j. India Bonds, Stock, or Certificates. Statutes.] — By 24 & 25 Yict. c. 98, s. 7, whoso- ever sJuill forge or alter, or shall offer, utter, dispose of, or put off, Itnowing the same to be forged or altered, any bond, commonly called an East India bond, or any bond, debenture, or security issiied or made under ths authority of any act passed or to be passed relating to the East Indies, or any indorsement on or assign- ment of any such bond, debenture, or security, with intent to defraud, shall be guilty of felony, and, being concicted thereof, shall be liable, at ■the discretion of the court, to be hept in penal servitude for life, or for any term not less than fire years (27 & 28 Vict. c. 47), or to be impri- soned for any term not exceeding two years, luith or without hard labour, and with or with- out solitary confinement. 25 & 26 Vict. c. 7, s. 14, mahes it felony to forge or utter certificates of India stoch, trans- ferable at the Bank of England or of Ireland. By 26 & 27 Vict. c. 73, s. 13, forgiiig Indta stock certificates or coupons is a felony. By s. 14, the personation of owners of India ■stock certificates or coupons is a felony. By s. 15, engraving upon plates of India stock eertifieates or coupons is a felony. k. Marriage Licences or Certificates. ■ Statute.]— By 24 & 25 Vict. c. 98, s. 35, whoso- ever shall forge or fraudulently alter any licence of or certificate for marriage, or shall off'er, utter, dispose of, or put off any such licence or certifi- cate, knowing the same to be forged or fraudu- lently altered, shall be guilty of felony, and. Icing convicted tliereof, shall be hable, at tlie discretion of the^ourt, to be kept in penal scrvi- for any term not exceeding seven years, and 1. Orders and Proceeding's of Magistrates. Statute.]— By 24 & 25 Vict. c. 98, s. 32, whoso- ever, with intent to defraud, shall forge or alter, or shall off'er, utter, dispose of, or put off', know- ing the same to be forged or altered, any sum- mons, conviction, order, .or icarrant of any justice of the peace, or any recognizance pur- porting to have been entered into before any justice of the peace, or other officer a%ithorixed to take the same, or any examination, deposition, affidavit, affirmation, or solemn declaration, taken or made before any justice of the peace, sliall be guilty of felony, and, being convicted thereof, sliall be Viable, at the discretion of the court, to be kept in penal servitude for the tenn of five years (27 & 28 Vict. c. 47), or to be im- prisoned for any term not exceeding two years, ivith or without hard labour, and loith or with-, out solitary cotfinemcnt. Forging Order not in accordance with Statu- tory Provisions.] — Forging a magistrate's order to pay money under hand only was not a capital offence, as the 17 Geo. 2, c. 5, under which the magistrate had power to make it, requu-ed it to be under hand and seal. Hex v. Rushworth, K. & R. C. C. 317 ; 1 Stark. 396. And so, if it was addressed to the treasurer of the county, instead of the high constable, the magistrate having no power by the act to make it upon the former. lb. The 7 Geo. 2, o. 22, was not confined to com- mercial transactions, but would have applied to an order made by a justice to a high constable or treasurer to pay a reward. Rex v. Graham, 2 East, P. C. 945. Signature — No such Magistrate in County.] — ^An order was made under 48 Geo. 3, c. 75, s. B, purporting on the face of it to be an order of a magistrate on the treasurer of a county, to-allow one J. C. the expenses of burying a dead body cast on shore : — Held, that this was a forgery, although there was no such magistrate iu the county of the name of the person who signed the order, and although J. G. was not therein stated to be a parish oflacer, or that the expenses hi- curred were necessarj'. Rex v. Froud, 3 Moore, 645 ; 7 Price, 609 ; 1 B. & B. 300 ; B. & E. C. C. 389. Order to Gaoler to discharge Prisoner.]— Forging an order from a magistrate to a gaoler to discharge a prisoner as upon bail having been given, is forgery at common law. Rex v. Hams, 1 M. C. C. 393 : 6 C. & P. 129. m. Records, Judicial and Curia! Process. Statute.]— By 24 & 25 Vict. c. 98, s. 27, who- Digitized by Microsoft® 249 CKIMINAL LAW — Forgery and Uttering Forged Instruments. 250 after they had been issued by the county clerk, was highly irregular. And semble, that the filling up of a county court summons, or altering a distringas into a summons, alter it had been so issued in blank, was a forgery at common law. Sex V. Collier, 5 C. & P. 160. Acting or Professing to Act under Pretence of Process.] — The prisoner had obtained a blank form used in a county court for the plaintiff to fill in particulars as instructions for issuing sum- monses ; this he filled up and signed it, without any authority, " W. G., registrar of the Taunton Court." On the back of the form he wrote, " Unless the whole amount claimed by A. K., draper, of T., is paid on Saturday, an execution warrant will be immediately issued against you. Witness my signature, W. G." The prisoner sent the form thus filled up to a person who was indebted to him : — Held, that this was acting, or professing to act, under the false colour or pre- tence of the process of the County Court, within 9 & 10 Vict. c. 95, s. 57. Reg. v. Richmond, Bell, C. C. 142 ; 8 Cox, C. C. 200 ; 28 L. J., M. C. 188 ; 5 Jur., N. S. 521 ; 32 L. T., 0. S. 139 ; 7 W. K. 417. But the 9 & 10 Vict. c. 95, s. 57, does not apply to mere false representations or assertion of authority to receive a debt. Reg. v. Myott, 6 Cox, C. C. 406. Existence of, Unnecessary.] — To con- stitute the offence of acting, or professing to act, under false colour or pretence of the process of the county court, it is not necessary that there should be any actual process in existence, or anything on the face of it purporting to be such. Reg. V. Evans, Dears. & B. C. C. 236 ; 7 Cox, C. 0. 293 ; 26 L. J., M. C. 92 ; 3 Jur., N. S. 594. What is — Notice to Produce.] — ^A notice to produce, given in a pretended cause in a county court, is not process of the court within 9 & 10 Vict. c. 95, s. 57. Reg. v. Castle, Dears. & B. C. C. 363 ; 7 Cox, C. C. 375 ; 27 L. J., M. C. 70 ; 3 Jur., N. S. 1308. Indictment.]— The 24 & 25 Vict. c. 98, s. 28, enacts that whosoever shall forge or fraudulently alter any process of any court (with certain exceptions), shall be guilty of felony :— Held, that an indictment for forgery under that section must allege an intent to defraud. Ren. v. Poioner, 12 Cox, C. C. 235. Accountant-General and other Officers' Names. ] —By 24 & 25 Vict. c. 98, s. 33, loJwsoever, iirith intent tQ defraud, shall forge or altci' any certi- ficate, o-eport, entry, indorsement, declaration of trvst, note, direction, authority, insti-ument , or writing made or purporting ur appearing to he made, ly tlie accountant-general, or any .other officer of the Court of Chancery in England or Ireland, or ly any judge or .officer of the Landed Estates Court in Ireland, or by any officer of any court in England or Ireland, or ly any cashier or other officer or clerh of the Bank of England or Ireland, or the name, handturiting , or signa- ture of any such accountant-general, judge, cashier, officer, or clerlt as aforesaid, or shall offer, utter, di-ijnise of, or put off any such certi- ficate, report, entry, indorsement, declaration of trust, note, direction, authority, instiiiment, or ioever shall forge or fraudulently alter, or shall offer, utter, dispose of, or put off, know- ing the same to be forged or fraudulently altered, any record, writ, return, panM, process, rule, order, warrant, interrogatory, deposition, affidarit, affirmation, recognizance, cognovit actionem, or warrant of attorney, or any original document lohatsoei-er, of or belonging to any cotirt of record, or any bill, ^letition, process, notice, rule, answer, pleading, interrogatory, deposition, affidavit, affirmation, report, order, or decree, or any original document whatsoever, of or belonging to any court of equity or court of admiralty in England or Ireland, or any document or writing, or an/y copy of any docu- ment or icriting, used or intended to be used as evidence in any court in this section mentioned, sliall he guilty of felony, and being eonricted thereof shall . be liable, at the discretion of the court, to be hept in penal servitude for any term nut exceeding seren years, and not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. By Clerk of Court or Officer.]- By s. 28, who- soever, being the clerh of any court, or other officer having the custody of the records of any court, or being the deputy of any such clerh or .officer, shall utter any false copy or certificate of any record, linowing the same to be false ; and whosoever, other than such clerh, officer or deputy, shall certify any copy or certificate of any record as such clerh, officer, or deputy ; and whosoever shall forge or fraudulently alter, or offer, utter, dispose of, or put off, knowing the same to be forged or fraudulently altered, any copy or certificate of any record, or shall offer, utter, dispose of, or put off any copy or certifi- cate of any record having thereon any false or forged name, handwriting, or signature, knoioing the same to be false or forged ; and lohosoever shall forge the seal of any court of record, or shall forge or fraudulently alter any process of any court other than such courts as in the last preceding section mentioned, or shall serve or enforce any forged process of any court whatso- ever, knowing the same to be forged, or shall deliver or cause to be delivered to any person any paper falsely purporting to be any such process, or a copy thereof, or to be any judgment, decree, or order of any court of law or equity, or a copy thereof, knowing the same to be false, or shall act or profess to act under any such false process hnoiving the same to be false, shall be guilty of felony. {Punishment as in preceding section!) Where Process a Nullity.] — One who was committed to gaol under an attachment for a contempt in a civil cause, counterfeited a pre- tended discharge, as from his creditor to the sheriff and gaoler, under which he obtained his discharge : — Held, a misdemeanor at common law, although the attachment not being for non- payment of money, the order was in itself a mere nullity, and no warrant to the sheriff for his discharge. Rex v. Fawcett, 2 East, P C 862. Process issued in Blank.]— The practice of issuing (ancient common law) county court process in blank, for the attorneys to fill up Digitized by Microsoft® 251 CRIMINAL IjAW— Forgery and Uttering Forged Instruments. 252 mntmig, knowing the same to beforged or altered, sliall be guilty of felony, and,, bmng comieted thereof, shall be liable, at the discretion of the court, to be hept in penal servitude for any term not exceeding fourteen years, and not less than fire years (21 & 28 Viot. o. 47), or to he imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. (Former iirocision, 12 Geo. 1, c. 32, s. 9.) When a Forgery.] — Forging a paper writing, purporting to be an office copy of a report of the accountant-general's, of money being paid into the bank, and also an office copy of a certificate of one of the cashiers of the bank, was within 12 Geo. 1, c. 32, s. 9. Rex v. Gibson, 1 Leach, C. C. 61 ; 2 East, P. C. 899. register so directed or required tobe transmitted as aforesaid, or shall knowingly and wilfullyi sign or rcrify any copy of any register so directed or o'cqiiired to be transmitted as aforesaid, whicJn copy shall be false in any paH thereof, knowing' the same to be false, or shall unlawfully destroy,, deface or injure, or shall for any fraudulent purpose take from its place of deposit, or conceal, any s^ich copy of any register, sliall be guilty of felony. (Punishment as in preceding section.. Previous provision, 11 Geo, 4 & 1 Will, i, c". 66, s. 22.) Offence.] — If a person knowing his name to be- A., signs another name without authority, he is. guilty, and it is immaterial that he is a third witness, the Marriage Act only requiring two- witnesses. Beg. V. Asplin, 12 Cox, C. 0. 391. n. Kegisters of Births, ^Carriages and Deaths. Destroying or injuring Register.] — By 24 &25 Vict. c. 98, s. 36, whosoever shall unlawfully destroy, deface or injure, or cause or permit to be destroyed, defaced or injured, any register of births, baptisms, marriages, deaths or burials toldch now is or hereafter shall be by law au- thorized or required to be Jtept in Englajid or Ireland, or any part of any such register, or any certified copy of any such register, or any part thereof, or shall forge or fraudulently alter in any such regi.iter any entry relating to any birth, baptism, marriage, death or burial, or any part of any ,fuch register, or any certified copy of such register, or of any part thereof, or shall knowingly and unlawfully insert or cause or permit to be inserted in any such register, or in any certified copy thereof, any false entry of any matter relating to any birth, bajitism, mar- riage, death or burial, or shall knowingly and unlawfully give any false certificate relating to any birth, baptism, marriage, death or burial, or shall certify any writing to be a copy or extract from any such register, knowing such ivriting, or the part of such register whereof mch copy or extract shall be so given, to be false in any material particular, or shall forge or counterfeit the seal of or belonging to any re- gister office or burial board, or shall offer, utter, dispose of or put off any such register, entry, certified copy, certificate or seal, knowing the same to be false, forged or altered, or shall offer, utter, dispose of or put off any copy of any entry in any such register, knowing such entry to be false, forged or altered, shall be guilty of felony, and, beitig convicted thereof, shall he liable, at the discretion of the court, to he kept in penal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to be impri- 'sonedfor any term not exceeding two years, with or without hard labour, and with or without solitary confinement. (Previous provision, 11 Geo. 4 & 1 Will. 4, u. 66, s. 20.) Inserting False Entries in,]— By s. 37, whoso- ever shall knowingly and icilfully insert, or cause or permit to he inserted, in any copy of any rcqistcr directed or required by law to he trans- mitted to any registrar or other officer, any false entry of any matter relating to any baptism, marriage or burial, or shall forge or alter, or shall offer, utter, dispose of or imt off, knowing tlis same to beforged or altered ^any eiipy of^aw^^ Digitized by Microsoft® What is an Injuring.]— Indictment under 11 Geo. 4 & 1 Will. 4, c. 66, s. 20, for destroying, defacing and injuring a register of baptisms,, marriages and burials. Objection, that there; was neither a destroying, defacing nor injuring,, because the register, when produced, had the torn piece pasted in, and was as legible as. before : — Held, that the indictment was good.. Beg. V. Bowen, 1 Den. C. 0. 22 ; 1 0. & K. 501. Indictment — Intent to Defraud.] — Upon an indictment imder the 24 & 25 Vict. u. 98, s. 37, for making a false entry in a man-iage register, it is not necessary that the entry should be made with an intent to defraud, and it is no defence that the marriage solemnized was null and void, being bigamous. Beg. v. Asplin, 12 Cox, C. 0.. 301. Indictment under 11 Geo. 4 & 1 Will. 4, c. 66, s. 20, for destroying, defacing and injuring a register of baptisms, marriage and burials. It was objected, that, as it did not contain an. express averment of a scienter, it was bad. But held, that the objection was without foundation^ Beg. V. Boweii, 1 Den. C. C. 22 ; 1 C. &: K. 501. Number of Offences charged.] — ^Another objection raised was, that, as three distinct and different ofiences were charged, it wns bad for uncertainty. This objection, was also overruled., Setting out Instrument.] — The latter act made it an offence to utter any writing as and for a copy of an entry in any register of marriage made or kept by the vicar of any parish in England :— Held, first, that the indictment for that offence need not set out the instrument, as. the words of 2 & 3 Will. 4, c. 123, s. 3, stating it to be sufficient in forgery to describe the instru-. ment as in an indictment for stealing it, were- applicable to such a case, although the instru- ment itself could not be the subject of an. indictment for larceny. Beg. v. Sharpe, 8 C. fc P. 436. Trial— Judicial Notice.]— Held, secondly, that the judges could take judicial notice that the parish of Seighford, in the county of Stafford, is. a parish in England, and that the indictment need not aver that fact. Ph. o. Registry of Deeds. Statute.]— By 24 & 25 Vict. c. 98, = 31, .who- 253 CEIMINAL LAW- — Forgery and Uttering Forged Instruments, 254 soever shall forge or frandnlently alter, or shall ■offer, utter, dispose of or put off, hnoimng the ■same to ie forged or fraudulently altered, any .memorial, ajffida/oit, affirmation, eiitry, certificate, indorsement, document or writing made or issued under thejjrovisions of any act paswd or herc- •after to he jiassed for or relating to the registry (if deeds ; or shall forge or counterfeit the seal of or belonging to any offce for the registry of deeds, or any xtamji or impressioti of any such seal; or shall forge any name, handwnting or ■signature purporting to le the name, hand- writing or signature of any person to any such ■memorial, affidavit, affirmation, ejitry, certificate, indorsement, document or writing which shall lie o-eguired or directed to ie signsd ty or hy rirtve of any act passed or to be passed, or shall offer, litter, dispose of or put off any sueh memorial or other writing as in this section before mentioned, having thereon any such forged stamp or im- 2)ression of any such seal, or any sueh forged lumie, liandwrriting or signature, knowing the same to be forged, shall be guilty of felony, and, being eonvieted thereof, shall be liable, at the discretion of the court, to be kept in penal servi- tude for any term not exceeding fourteen years, and not less than five years (27 & 28 Vict. o. 47), or to be inqirisoned for any term not exceeding two years, with or without hard labour, and with j>r without solitary eonj p. Seals of the Kingdom. Statute.]— By 24 & 25 Vict. c. 98, s. 1, whoso- ever shall forge or counterfeit, or shall utter, Mowing the same to be forged or counterfeited, the great seal of the United Kingdom, her Majesty's privy seal, any privy signet of her Majesty, lier Majesty's royal sign-manual, any of her Majesty's seals appointed by the twenty- fourth article of the union between England and Scotland to be kept, used and continued in Scot- land, the great seal of Ireland, or the privy seal of Ireland, or shall forge or cownterfeit thestamp or impression of^ any of tlie seals aforesaid, sluM utter any document or instrument wliatso- e-cer having tlu-reon or affixed tlwreto the stamp or impression of any stieh forged or counterfeited seal, knowing the same to be the stamp or im- pression of such forged or counterfeited seal, or any forged or counterfeited stamp or impression made or apparently intended to resemble tJw stamp or impression of any of the seals afore- said, knowing the same to be forged or counter- feited, or shall^forge or alter, or utter, knowing the same to be forged or altered, any document or instrmnent having any of the said stamps or impiressions thereon or affixed thereto, shall be guilty of felony, and, being eonvieted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to be ■imprisoned for any term, not exceeding two years, with or without hard labour, and with or without solitary confinement. (^Previ vision, 11 Geo. 4 & 1 Will. 4, c. 56, s. 2.) utters the similar parts as genuine, concealing the space whence the dissimilar part is cut out ; this amounts to a forgery and uttering. Rex v. Collicott, B. & K. C. C. 212 ; 2 Leach, C. C. 1048 ; 4 Taunt. 300. Transposing Stamps.] — It was the duty of a clerli in the stamp office to cut off the corners of parchments which bore the blue paper stamps allowed for as spoOed by the com- missioners of stamps, and to put the blue paper stamps and the small pieces of parchment so cut off, and which were glued to them, into the fire, without separating them. Instead of doing this, he separated a blue paper stamp from the small piece of paschment to which it had been glued, and glued it to a new slcin of parchment on which the words " This indenture " had been written. The jury found that he had no fraudu- lent intent when he cut the stamp from the skin of parchment, but that he had when he separated the blue paper stamp from the small piece of parchment ; and that he then intended to apply the stamp to a parchment intended to be used as an indenture : — Held, that this was a capital offence. Rex v. Smith, 5 C. & P. 107 ; 1 M. C. C. 314. Transferring Stamps.]— Quajre, whether a person who took some of the stamps from a writ, and then fixed them to another writ of the same kind, and then sold it for the pui-pose of its being used by such persons as might buy it from his vendee, was within 12 Geo. 3. c. 48. Rex V. Field, 1 Leach, C. C. 383. pro- q. Stamps and Marks on Plate. Stamps— Part Dissimilar Concealed.]- If a person engrayes a counterfeit stamp, similar in some parts, dissimilar in others, to the legal stamp, and, cutting out the dissimilar parts. Intent — Using the same Stamp more than once.] —To constitute a felony under 12 Geo. 3, c. 48, s. 1, of writing some matter or thing liable to stamp-duty on paper on which had been before written some other matter liable to stamp duty, before the .paper had been again stamped, it was essential that the party writing should do it with some fraudulent intent. Ren. Allday, 8 C. & P. 136. Indictment.]— It being uncertain whether the stamp so separated was impressed before or after 54 Geo. 3, c. 184 :— Held, that the party might be properly convicted on a count stating the stamp to be the impression of a die made and used " in pui-suance of the statute made and provided for denoting a certain duty, being one of those under tie management of the commissioners of stamps " Rex V. Smith, 5 C. & P. 107 ; 1 M. C C 314 In describing the offence of forging a stamio, it IS enough to describe it as a stamp provided and used in pursuance of an act of parliament, with- out setting out the impression 'or inscription or naming the amount of duty denoted thereby n TnT-a'^'fl'"'"^*'-^- ^^ ^' ^- ^- 212; 2 Leach, 0. C. 1048 ; 4 Taunt. 300. ^^ Trial— Venue— Having false Stamped raper.j— Where on an indictment for having m possession certain reams of paper, with couu- terteit marks, and impressions of certain stamps used to denote the duty imposed in respect of paper, on the covers Or wrappers, it was proved that the paper came from the prisoner at Exeter and was brought thence by his servant to lopsham, m the county of Devon, and seized by the custom officer on board a vessel at Topsham ■ —Held, that this was in law a custody and pos- Digitized by Microsoft® 255 CRIMINAL LAW — Forgery and Uttering Forged Instruments. 256 sesswn in the prisoner in the county of Devon sufficient to maintain the indictment in that county. . llci- V. Piin, E. & R. C. C. i25. Plate — Marks on — Selling, when Forged.] — Knowingly selling plate with the king's mark forged on it, was not capital, but only subject to transportation, lla- v. Hope, 1 M. G. C. 396. Transposing Mark.] — A person might be found guilty under 13 Geo. 3, c. 52, s. 14, and 38 Geo. 3, c. 61), s. 7, if proved to have transposed the mark of the Goldsmiths' Company from one gold ring to another, although both rings were genuine, and although the jury might be of opinion that he did so without any fraudulent intention. Itc-i: v. Ogden, 6 C. & P. 631. r. Stock Certificates and Coupons. Statute.] — By 33 & 3-1 Vict. c. 58, 2>roi-iuiiu is made for the forgery of stueli ccrtijicatex and t'oiquni-i, for j/ersonatinrj otmer-i if stock, for eiig rating plates, ,)'■<■., for stud: certijicutes or coupons, and for forgerij of certifieatex of transfers of stock. s. Trade IHarks. ISee 25 .)'• 26 Vift. c. 88.) Torgery or False Pretences.] — The prosecutor, Berwick, sold powdei-s called " Berwick's baking powders," and ■■ Berwick's egg powders," wrapped up in printed papers. The prisoner procured 10,000 wrappers to be printed similar to Ber- wick's, except that the name of Berwick was omitted on the baking powder's. In these wrap- pers the prisoner inclosed powders of his own, which he sold for Berwick's powders. The jury found that the wrappers so far resembled Ber- wick's as to deceive pei-sons of ordinary observa- tion, and that they were procured and used by the prisoner with an intent to defraud : — Held, that he could not be convicted of forgery, though Jhe was liable to be indicted for false pretences. Be/j. v. Smith, 8 Cox, C. C. 32 ; Dears. & B. C. C. 566 ; 27 L. J., M. C. 225 ; 4 Jur., N. S. 1003. t. and Powers of Transfer of Stocks, &o. Attorney. Altering, Uttering and Putting off.]— By 24 & 25 Vict. c. 98, s. 2, wJiosoever shall forge or alter, or shall offer, utter, disj/ose of or put off, hnoicing the same to be forged or altered, aiuj transfer of any share or interest of or in any stock, annuitg or other puUic fund which now 'is or hereafter may be transferable at the JBanh of England or at the Bank of Ireland, or of or in the capital stock of unij body corporate, company or society which how is or hereafter 'may be established by charter, or by, under or by •cirtue of any act of parliament, or shall forge or alter, or shall off'er, utter, dispose of or put off, knowing the same to be forged or altered, any power of attorney or other authority to transfer any share or interest of or in any such stock, annuity, public fund or capital stock, or to receice any dividend or money payable m respect of any such share or interest, or shall demand or endeavour to hare any sueh share or mterest transferred, or to receive any dividend or money payable in respect thereof, by virtue of any such forged or altered power of attorney or other au- thority, knowing the same to be forgedor altered, with intent in any of the eases aforesaid to de- fraud, shall be guilty of felony, and, being con- victed thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any ternt not less than Jive years (27 tt 28 Vict. c. 47), or to be imprisoned for any terui not exceeding tu-o years, tcith or without hard labour, and with or without solitary con- finement, (jfonncr enactment, 11 Geo, 4 & 1 Will. 4, c. 66, s. 6.) Forging Hame or Signature.] — By s. 4, whosoever shall forge any name, handwriting or signature purporting to be the name, hand- writing or signature of a witness attesting the cvecution of any power of attorney or other authority to tranter any share or interest of or in any such stock, annuity, public fund or capital stock as is in eitlier of the last two pre- ceding sections mentioned, or to receive any dividend or money payable in respect of any such share or interest, or shall offer, utter, dis- pose of or put off any such power of attorney or other authority, toith any sueh forged name, handwriting or signature thereon, knoicing the same to be forged, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servi- tude for any term not ej^ceeding seven years, and not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term, not e.rcceding two years, with or without hard labour, and with or without solitary confinement. (^Previous provision, 11 Geo. 4 & 1 Will. 4, c. 66, s. 8.) Stock never Accepted nor Transfer Wit- nessed.] — An indictment for forging a transfer of stock is good, although the stock has never been accepted by the person in whose name it steed, and although the transfer was not wit- nessed according to the rules and directions of the bank. Rex v. Gade, 2 Leach, C. C. 732 ; 2 East, P. C. 874. Who is Person Defrauded.] — A., a share- broker, had bought tvventy shares in a railway company of L., a broker, which stood in the name of P. ; but L. did not send A. the deed of transfer, as A. was in embarrassed circumstances, and owed L. money. A. procured a boy to execute a deed of transfer of the shares in the name of P. ; all the calls in the shares had been paid up ;— Held, a forgery, and that A. could be convicted on counts laying an intent to defraud P. and the railway company, lleg. v. Hatson, 2 C. & K. 777. Digitized by Microsoft® In Companies — Evidence that Individual is Shareholder.]— On an indictment for forging and uttering a transfer of shares in a railway company, the register of shareholders bearing the seal of the company, and kept according to 8 & 9 Vict. c. 16, s. 9, is' evidence to shew that an in- dividual is a shareholder, without further authen- tication : and in order to prove that such indi- vidual is liable to be defrauded by the forging and uttering of a transfer of the shares, it is not necessary to give further pr"of o^, lif„,*^t^^,*2 ^f shares. Reg. v. ^'ash, 2 Den. C. C. 493 ; 21 L. J., M. C. 147 ; 16 Jar. 553. Power of Attorney.]— A power of attorney to transfer government stock, 'signed, sealed and delivered, was a deed within 2 Geo. 2, c. 2o, s. 1. 257 CEIMINAL LAW — Forgery and Uttering Forged Instruments. 258 Rex V. Fauntleroy, 1 M. C. C. 52 ; 2 Bing. 413 ; 10 Moore, 1 ; 1 C. & P. 421 ; S. P., Bex v. Prmgle, 1 M. C. C. 68. Forging a power of attorney to receive a sea- man's wages, in the name of a supposed child as administratrix of such seaman, who, in fact, died childless, is a forgery. Rex v. Lcivis, 2 East, P. C. 967. Making false Entries in public Transfer Books.] — By 24 & 2,5 Vict. o. 98, s. 5, whogoevcr shall wilfully malte any false entry in, or wil- fnlly alter any word or figure in, any of the ioohs of aeeomit liept by the Banlt of England or the Bank of Ireland, in which hoolts the aceounts of the owners of any stocli, annwities or other ]}iMic funds which now are or hereafter may he trans- ferable at the Banlt, of England or at the Banh of Ireland shall be entered and hept, or shall in (my manner wilfully falsify any of the accounts of any such owners in any of the said boohs, icith intent in any of the cases aforesaid to de- fraud, or shall wilfully malte any transfer of any share or interest of or in a7iy stock, annuity or other public fund which now is or hereafter may be transferable at the Banh of England or at the Banh of Ireland, in the name of any person not being the true and lawful owner of such share or interest, ipith -intent to defraud, shall be guilty of felony, and, being conricted thereof, shall be liable, at the discretion of the court, to be hept in penal serritude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to he imprisoned for any term not ex- ceeding two years, with or without hard labour, and with or withoiit solitary confinement. ^Former enactment, 11 Geo. 4 & 1 Will. 4, c. 66, s. 5.) Bank Dividend Warrants.] — By s. 6, whoso- crer, being a clerh, officer, or sen-ant of, or other person employed or intrusted by, the Banh of England or the Banh of Ireland, shall know- ingly make out or dclher any dividend war- rant, or warrant for payment of any annuity, interest or money payable at the Banh of Eng- land or Ireland, for a greater or 'less amount than the person on whose behalf such warrant ■slutll be made out is entitled to, with intent to defraud, shall he guilty of felony, and, hehuj concieted thereof, shall be liable, at the discre- tion of the court, to be hept in penal servitude for any term not exceeding secen years and not less than fire years (27 & 28 Vict. c. 47), or to be imprisonedfor any term not exceeding two years, irith ortoithout hard labour, and with or with- out solitary confinement. (Former provision, 11 Geo. 4 & 1 Will. 4, c. 66, s. 9.) u. Warrants, Orders, Undertakings, Be- quests, and Beceipts for Goods or for Money. i. Statutes. ii. Goods, in respect of, 258. iii. Money, in respect of, 260. iv. Indictment and Evidence, 268. i. Statutes. By 24 & 25 Vict. u. 98, s. 23, whosoever shall forge or alter, or shall offer, utter, dispose of or put off, knowing the same to be forged or altered. any undertaking, learrant, order, authority or request for the jtayment of money, or forthe deli- very or transfer of any goods or chattels, or of any note, bill or other security for the payment of money , or for xyrocuriiig or giving credit, or any indorsement on or assignment of any suy this or by any other act any personis or shall hereafter ie made liaile to punishment for forg- ing or altering, or for offering, ■uttering, dispos- ing of, or putting off, knowing the .same to he forged or altered, any instrmnent or writing designated in such act iy any special name or descrijjtion, and such iiistrument or writing, howeijcr designated, shall be hi law a mill, testa- ment, codicil, or testamentary writing, or a deed, iond, or writing obligatory, or a bill of exchange, or a promissory note for the payment of money, or an indorsement on or assignment of a bill of exchange or ])romissory note for the payment of money, or an aoceptan,ce of a bill of exchange, or an undertaMng, warrant, order, authority, or request for the payment of money, or an indorse- ment on or assignment of an undertalting , war- rant, order, authority, or rerjuest for the pay- ment of money, within the true intent and meaning of this act, in every such ease the person forging or altering such instrument or writing, or offering, uttering, disposing of, or putting off such instrument or writing, knowing tlie same' to be forged or altered, may be indicted as an offender against this act, and punished accordingly. {Former provision, 11 Geo. 4 & 1 Will. 4, c. 66, s. 4.) False Entry in Banker's Books.] — Making a false entry in what purports to be a banker's pass book, with intent to defraud, is a forgery. Beg. V. Smith, L. & C. 168. But where a paying teller of a bank falsely and with intent to defraud, enters in the proof book of the bank, kept by him, a certain sum of money, as assets of the bank, whereas the assets do not amount to that sum, he is not guilty of forgery by the law of England. Winsor, In re, 6 B. & S. 522 ; 10 Cox, C. C. 118 ; 34 L. J., M. C. 163 ; 11 Jur., N. S. 807 ; 12 L. T. 307 ; 13 W. R. 653. Bailway Pass.] — The forgery of a railway pass to allow the bearer to pass free on a railway is a forgery at common law. Beg. v. Boult, 2 C. & K. 604. Seport of Seaman's Character.] — ^A master of a ship having made and signed a report of a seaman's character upon his discharge, in the form sanctioned by the Board of Trade, the shipping-master gave the seaman a, copy. The seaman went to the prisoner, who, for 2,'!. dd., made and delivered to him a, fac-simile of the genuine copy of the report, except that the letter "G.," which signified "good," was substituted for the letter " M.," which signified " middling : " — Held, that the prisoner was guilty of an ofEence within 17 & 18 Vict. c. 104, s. 176. Beg. v. WU-ion, Dears. & B. C. C. 558 ; 27 L. J., M. C. 230 ; 4 Jur., N. S. 670. Testimonials as to Character.] — Forging testi- monials as to character, whereby a situation as a police constable is obtained, is a forgery at common law. Beg. v. Moah, Dears. & B. C. C. 550 ; 7 Cox, 0. C. 503 ; 27 L. J., M. C. 205 ; 4 Jur., N. S. 464. Certificate of Service at Sea.] — To forge a certificate of service, sobriety and good conduct at sea, with intent to deceive and defraud, is an ofEence indictable at common law. Beg. v. ToslMch, T. & M. 207 ; 1 Den. C. 0. 492 ; 4 Cox, C. C. 38 ; 13 Jur. 1011. Indictment.] — A count which, without an in- ducement, charging that the prisoner "did forge a writing, as a certificate of W. N., with intent to deceive and defraud W. P. and others," is good. Beg. v. ToshacTt, supra. 4. Obtaining Propeety upon Forged Instruments. By 24 & 25 Vict. c. 98, s. 38, whosoever, tcith intent to defraud, shall demand, receive, or ob- tain, or cause or procure to be delivered or paid to any person, or endeavour to receive or obtain, or to cause or procure to be delivered or pald'to any person, any chattel, money, security for money, or otlwr property whatsoever, under, upon, or by virtue of any forged or altered instrument whatsoever, linowinti the same to be forged or altered, or under, upon, or by virtue of any Digitized by Microsoft® 275 CEIMINAL LAW — Forgery and Uttering Forged Instruments. 276 probate or letters of administration, Itnominq the ivill, testament, codicil, or testamentaAj writing on lokich such probate or letters of ad- ministration shall have been obtained to hare bemi forged or altered, or hnoiving such probate or letters of administration to hare been obtained by any false oath, affirmation, or affidavit, shall he guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be hept in penal scrritude for any term not ex- ceeding fourteen years, and not less than fire years (27 & 28 Vict. c. 47), or to be imprisoned for any term, not exceeding two years, with or loithowt hard labour, and with or without soli- tary eoiifinem-e^it. See Reg. v. Adams, 1 Den. C. 0. 38. 6. Indictment, Evidence and Practice. a. Parties Indictable. b. Form and Contents of Indictment, 276. c. Proof of Possession, 277. d. Allegation and Proof of Intent to Defraud, 278. ('. Evidence Generally, 280. /. Witnesses, 282. ff. Jurisdiction to Try, 283. h. Election of Forgeries, 284 i. Punishment, 284. j. Costs of Prosecution, 284. h. Power to Seize Forged Instruments, 284. a. Parties Indictable. Principals and Accessories.] — By 24 & 25 Vict. c. 98, s. 49, in the case of ecery felony pnnishable under this act, every principal in the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this act punishable ; and every accessory after the fact to any felony punishable under this act shall on conviction be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement ; and every jierson who slmll aid, abet, counsel, or procure the commission of any misdemennor punishable under this act shall he liable to be proceeded against, indicted, and punished as a principal offender. ■Who are Principals and Accessories.] — See ■ante, col. 26, et seq. Treasurer of Illegal Trades Union.]— A man ■was indicted for forging a banker's pass boot, with intent to defraud. He was treasurer to a trades union, which was an illegal society. It was contended that such a society, having no legal existence, could possess no funds, and, there- fore, could not be defrauded :— Held, that the objection of illegality was applicable only to the summary proceedings before magistrates provided by the Friendly Societies Act ; but did not extend to deprive the society of its remedy by indict- ment. Beg. V. Dodd, 18 L. T. 89. See Meg. v. Stainer, 1 L. B.. C. C. 230 ; 39 L. J., M. C. o4, and 32 & 33 Vict. c. 61. Secretary of UnenroUed Friendly Society- Part Owner. ] —The prisoner was the paid secretary of an unenrolled friendly society, of which his wife was a member. He delivered to the society a book on which was indorsed " Savings Bank, New-street, Huddcrsfield," and in which was an entry, "1835, Oct. 30, received 40?." It was proved that the entry was a forgery, and that the money had not been paid into the savings bank. The jury having found that the prisoner was guilty of knowingly uttering with intent to deceive the society, and that he had, in fact, de- frauded it, it was objected for the prisoner that being the husband of a member he was a part owner, and could not be made criminally liable for defrauding his co-owners :— Held, that the objection was untenable, and that the conviction was right. Beg. v. Moody, 9 Cox, C. 0. 166 ; L. & C. 173 ; 31 L. J.. M. C. 156 ; 8 Jur., N. S. 574 ; 6 L. T. 301 ; 10 W'. R. 585. The prisoner was the treasurer, and also a member of an unenrolled friendly society, and it was his duty to pay moneys received into the society's bankers. The prisoner produced to the society a fictitious book, purporting to be the bank pass book, containing entries puiporting to vouch that he had paid certain moneys into the bank, and that the bank acknowledged the receipt of them, which book did not truly' represent the state of account. The prisoner having at various times drawn out moneys which he had appro- priated for his own purpose, the jury found the prisoner guilty of presenting a false account with intent to obtain credit for having paid the moneys into the bank, with a view to obtain other moneys from the society which he might fraudulently appropriate to his own use : — Held, that the prisoner, though a member of the society, might properly be convicted of uttering a forged receipt, with intent, &c. Beg. v. Smith, 9 Cox. C. C. 162 ; L. & C. 168 ; 31 L. J., M. C. 154 ; 8 Jur., N. S. 672.; 6 L. T. 300 ; 10 W. R. 583. b. Porm and Contents of Indictment. Invalidity of Document.] — The invalidity of an instrument must appear upon the face of it, in order to found an objection to an indictment for forgery. Bex v. M'Intosh, 2 Bast, P. C. 942 ; 2 Leach, C. C. 883. Instrument, how Described.] — By 24 & 25 Vict. 0. 98, s. 42, in any indictment for forging, altering, offering, uttering, disposing or putting off any instrument, it shall be sufficient to de- scribe such instrument by any name or desig- nation by ichich the same may be usually hioion, or by the purport thereof, without setting out any copy or facsimile thereof, or othcravse describing the same, or the value thereof. (14 & 15 Vict. c. 100, s. 5, ami 2 & 3 Will. 4, c. 123, s. 3, former enactments.') And by s, 43, in any indictment for engraving or malting the whole or any part of any instru- ment, matter or thing wJtatsoever, or for using or having the unlauful custody or possession of any plate or other material upon ichich the whole or' any part of any instrument, onattrr or thing whatsoever shall have been engraved or made, or for having the unlawful custody or po.isession of any paper ujjon which the whole or any part of any instrument, matter or thing whatsoever shall have been made or printed, it shall be sufficient to describe such iustrvment, matter or thing by any name or designation by which the same may be usually known, without setting out any copy or facsimile of the whole or any part of such instrument, mutter or thing. (^Similar to 14 & 15 Vict. c. 100, s. 6.) L 2 Digitized by Microsoft® 277 CEIMINAL LAW — Forgery and Uttering Forged Instruments. 278 In an indictment for forgery, a description to a common intent of the person intended to be defrauded is sufficient. Rex v. Lovell, 1 Leach, C. C. 248 ; 2 Bast, P. C. 990. Setting Out.] — In an indictment, the words, " in manner and form following, that is to say," do not bind the party to recite the instrument verbatim, nor render a mere formal omission or mistake fatal. Beas v. May, 1 Dougl. 193. Part of Instrument Forged.] — If any part of a true instrument is altered, the indictment may lay it to be a forgery of the whole instrument. For every alteration of a true instrument makes it a forgeiy of the whole. Hex v. Dawson, 2 Bast, P. C. 978 ; 1 Str. 19. In Particular Cases.] — See preceding sub-heads. u. Proof of Possession. Statute.]— By 2i & 25 Vict. o. 98, s. 45, where the ha/ving ally matter in the custody orjjosses- sion of any person is in this aet expressed to Tie an ojfenee, if any person shall hare any sueh matter in his personal custody or possession, or shall Jtnowingly and loilfiiUy hare any such matter in the actual custody nrpossession of any other pei'son, or shall Jmoiviiigly and wilfiilly haee any such matter in any divelling-lwusc or other building, lodging, apartment, field or other place, open or inclosed, icheth^r belonging to or occupied by himself or not, and whether such matter shall be so had for his otmi use or for the use or benefit (f another, every sueh person shall be deemed and tctlien to hare such matter in his custody or 2>ossession within the meajiing of this act. Where, on an indictment on 45 Geo. 3, c. 89, s. 6, for knowingly and wittingly having in his possession forged ' Bank of England notes, it appeared that the prisoner being suspected of having such in his possession was requested by A. to sell him some, which he said he would do, and A. accordingly paid him for them ; the pri- soner then went out as he said to fetch the notes, but on his return said, " he had jrat them in an old shoe in a particular place," which he de- scribed ; A. then went to look for the notes, and the prisoner followed him, but whilst A. was looking for them, the prisoner threw a stone into the place, and said, "there they are ; " A., on looking there, found the notes in an old shoe : — Held, that the prisoner had a sufficient possession within the meaning of the statute. Rex v. Rowley, R. & E. C. C. 110. A. took a bank note in the course of his busi- ness, which he paid to B. ; the note was after- wards stopped at the bank as a forged note, and was brought by an inspector to A., who immedi- ately paid to B. the amount of the note, and re- fused to give it up to the inspector, insisting on his right to retain it, in order to recover the amount from the person from whom he had i-e- ceived it. The inspector, in the absence of all circumstances of suspicion, is not justified in charging A. before a magistrate with feloniously having the note in his possession, knowing it to be forged, for the purpose of compelling him to give up the note. By possession under the 45 Geo. 3, c. 89, was meant the original posses- sion of a note acquired in an illegal mode, and not a subsequent possession, like the above. where the original possession was legal. Broolig V. Warwich, 2 Stark, 389. d. Allegation and Proof of Intent to Defraud. Statute.]— By 24 & 25 Vict. c. 98, s. 44, it shall be sufficient, in any indictment for forging, altering, uttering, offering, disposing of, or put- ting off any insti'ument whatsoerer, where it shall be necessary to allege an intent to defraud, to allege that the party accused did the act with intent to defraud, without alleging an intent to defraud any 2J<'-rticular person ; and on the trial of any sueh offence it shall not beneccssary to 2>rote an intent to deframd any particular person, but it shall be sufficient toprore tliat tlie party accused did the act charged icith an in- tent to defraud. ^Similar former e^iactment, 14 & 15 Vict. u. 100, s. 8.) Indictment — Some Person.] — Since 14 & 15 Vict. c. 103, s. 8, there must be proof of an in- tent to defraud some person, in order to support the indictment for forgery, though it need not be alleged that it was done with intent to defraud a particular person. Reg. v. Hodgson, Dears. & B. C. C. 3 ; 25 L. J., M. C. 78 ; 2 Jur., N. S. 453. It is sufficient, upon an indictment for forgery and uttering a bond, to lay the intent generally to defraud ; and the prisoner may be convicted, although it does not apjDear that he had any in- tention ultimately to defraud the party whose signature he had forged, he having defrauded the party to whom he uttered the instrument. Reg. V. Trenfield, 1 F. & F. 43. ■ Manner in which Fraud Effected.] — It is only necessary to aver a general intent to de- fraud A. B., without setting out the manner ia which that fraud was to be effected. Rex v. Pov)cll, 2 "ff. Bl. 787 ; 1 Leach, C. C. 77 ; 2 East, P. C. 976. " With Intent."]— The words " with in- tent," in an indictment for forgery, apply to the verb to which prisoner's name is the nominative; therefore, a count which states that the prisoner " did forge " a promissory note for 50^., " on which note is an indorsement as follows, ' C. J.,' with intent to defraud W. R. S.," sufficiently charges that the forged note, and not the in- dorsement, was the thing by which the prisoner intended to defraud W. R. S. Rex v. Jamies, T C. & P. 553. Particular Persons.]— Where a forged request for the delivery of goods was addressed in her maiden name to a female, who prior to the date of it had married : — Held, that the party uttering it might properly be convicted, on aa indictment charging the intent to be to defraud the husband. Rex v. Carter,! C. & P. 134. If a banker authorized to pay a sum of money to three persons in particular, and to them only, pays it to one of them and two strangers, who personate the other two, his liability continues, and the false instrument upon which the money- was obtained, may be charged to have been made with intent to defraud them. Dixon's case, 2 Lewin, C. C. 178. Evidence of Intent to Defraud— Inference.]— Digitized by Microsoft® .279 CRIMINAL luK\Y— Forgery and Uttering Forged Instruments. 280 On the trial of au indiotment for uttering a forged bill of exchange, if the jury is satisfied that the prisoner uttered the bill as a true bill, mean- ing it to be taken as such, and at that time knew It to be forged, they ought to find, as a necessary consequence of law, that the prisoner intended to defraud, and the jury ought to infer the intent to defraud, if they are satisfied on the two other points. Reg. v. Hill, 8 0. & P. 274. If a person, at the time he uttered a bill of ex- change with a forged acceptance on it, knew that acceptance to be forged, and meant the bill to be taken as a bill with a genuine acceptance upon it, the IneTitable conclusion is, that he intended to defraud. Iteg. v. Coohe, 8 C. & P. 582. So, it is a consequence, and almost a conse- quence of law, that he must intend to defraud the person to whom he pays the bill, and also the person whose name is used ; as everything which is the natural consequence of the act must be taken to be the intention of the prisoner. lb. A jury ought to infer an intent to defraud the person who would have to pay a forged instru- ment if it was genuine, although from the man- ner of executing a forgery, or from that person's jordinary caution, it would not be likely to impose on him, and although the object was generally to defraud whoever might take the instrument, and the intention of defrauding in particular the person who would have to pay the instrument if .genuine did not enter into the prisoner's con- templation. Rex V. Mazagora, K. & E. C. C. 291. To Defraud Particular Person.] — There must be proof of an intent to defraud some person since 14 & 15 Vict. c. 100, s. 8, in order to •support an indictment for forgery, though it need not be alleged that it was done with intent to defraud a particular person. Beg. v. Hodgson, Dears. & B. C. C. 3 ; 25 L. J., M. C. 78 ; 2 Jur., N. S. 453. In forgery it is not required, in order to con- stitute in point of law an intent to defraud, that ■the party committing the offence should have had present in his mind an intention to defraud a particular person, if the consequences of his act would necessarily or possibly be to defraud any person ; but there must at all events be a possi- bility of some person being defrauded by the forgery. Reg. v. Marcus, 2 C. & K. 356. Sufficiency.] — A prisoner asked his em- ployer to give him U. to buy "settledated striking acid," to be used in the employer's tanning busi- ness, which the prisoner superiatended ; the em- ployer gave him the money, and about four days after the prisoner delivered to his employer a ■forged receipt for the H., which purported to come from a firm of whom the acid had been bought : — Held, that proof of these facts was sufficient evidence of uttering the forged receipt ■with, intent to defraud the employer. Rex v. Ma/i-tin, 7 C. & P. 549 ; 1 M. C. C. 483. Where, on the trial of a prisoner for forging a note, it appeared that he had kept the note in his possession, and never uttered or attempted to make any use of it :— Held, whether the note was made innocently, or with intent to defraud, was for the consideration of the jury, and to be collected from the facts proved. Rex v. Crocher, K & E. C. 0. 97 ; 2 N. E. 87 ; 2 Leach, C. C. 987- Digitized by I^Tcf MM The intent to defraud a bank constitutes the offence of feloniously disposing of and putting away counterfeit bank notes, and it is not done away by the circumstance that the notes were furnished by the prisoner in consequence of an application made by an agent employed thereto by the bank, and that they were delivered to him as forged notes, for the purpose of being disposed of by that agent. Hex v. Ilulden, 2 Taunt. 334. The fact that the prisoner has given guaran- tees to his bankers, to whom he paid a forged note, to a larger amount than the note, does not so completely negative an attempt to defraud them as to withdraw the case from the considera- tion of the jury. Rex v. Janies, 7 C. & P. 553. In heads. 6. Evidence Crenerally. Particular Cases.]— &e jjreceding sub- Production of Instrument.]— If. on an indict- ment for forgei-y being presented 'to the grand jury, it appears that the forged instrument can- not be produced, either from its being in the hands of the prisoner, or from any other sufficient cause, the grand jury may receive secondary evidence of its contents. Rex v. Hunter, 3 C. & P. ,591. On an indictment for forgery being presented to the grand jury, a witness declined to produce certain deeds before them : — Held, that, if the deeds formed a part of the evidence of the wit- ness's title to his own estate, he was not com- pellable to produce them, but that, if they did not, the grand jury might compel their produc- tion, lb. Secondary Evidence of.] — On'an indict- ment for uttering a forged deed, it appeared that the deed alleged to have been forged was pro- duced in evidence by the prisoner's attorney on the trial of an ejectment, in which the prisoner was lessor of the plaintiff ; and that after the trial, it was returned to the prisoner's attorney : — Held, that, if the prisoner did not produce the deed, he having had notice to produce it, second- ary evidence might be given of its contents, without calling his attorney to prove what he had done with the deed. If, as secondary evi- dence of the contents of the deed, the draft is given in evidence, and in the draft words are abbreviated, which, in the setting out of the deed in the indictment, are put in words at length, it will be for the jury to say whether they think that the words abbreviated in the draft were inserted at length in the deed itself. Rex V. Hunter, 4 C. & P. 128. Notice to Produce.] — If a forg:ed deed is in the possession of a prisoner, who is indicted for forging it, the prosecutor is not entitled to give secondary evidence of its contents, unless he has, a reasonable time before the commencement of the assizes, given the prisoner notice to produce it ; and a notice given to the prisoner during the assizes is too late ; but if the prisoner has said that he has destroyed the deed, no notice to pro- duce it will be necessary. Rex v. Haworth, i C. & P. 254. A man was indicted for forging a bank note of a banking company. The note was not pro- duced at the trial, but secondary evidence thereof |here not having been any notice to 281 CEIMINAL luAW— Forgery and Uttering Forged Instruments. 282 dence of the number of the notes in which it was paid was rejected in consequence of the onginal entity not being forthcoming at the trial. """ V. Han-ey, 11 Cox, C. C. 546. produce the original : — Held, that secondary evidence was inadmissible in the absence of notice to produce the original. Reg. v. Fitz- simons, i It. B., C. L. 1 ; 18 W. R. 763. Evidence of Loss.]— If the forged instru- ment is not produced at the trial, the best proof that can be given of its loss or destruction must be adduced before a copy may be used as secon- dary evidence. Reg. v. Sail, 12 Cox, C. C. 159. Production of Documents — Privilege of Solici- tor.]— Qn^re, whether a forged document in- trusted by the prisoner to an attorney, as an attorney, can be produced on the trial for the forgery. Reg. v. Tylney, 1 Den. C. C. 319 ; 18 L. J., M. C. 36. Atid see cases ante, col. 273. Document not Stamped.] — On an indictment for forging a biU of exchange the bill may be given in evidence, although it is not stamped. Beae v. Hawheswood, 1 Leach, C. C. 257 ; 2 East, P. C. 955 ; 2 T. K. 606, n. ; S. P., Bex v. Morton, 2 East, P. C. 955 ; 1 Leach, C. C. 259, n. ; S. P., 33 & 3i Vict. c. 97, s. 17. Admissibility to Implicate — ^Letter written by Prisoner to Third Person.] — In a case of forging and uttering a forged bill, a. letter written by the prisoner to a third person, saying that such person's name is on another bill, and desiring him not to say that that bill is a forgery, is re- ceivable in evidence to shew gnUty knowledge ; but the jury ought not to consider it as evidence that the other bill is forged, unless such bill is produced, and the forgeiy of it proved in the usual' way. Re-v v. Fories, 7 C. & P. 224. Deposition or Examination of Prisoner.] -^A. was charged with a forgery, and B. was ex- amined on oath before the magistrate as a wit- ness against A. ; after this B. was himself charged with a different forgery : — Held, that the deposition of B. was evidence against him on his trial for the forgery, notwithstanding it was taken on oath. Bex v. Hawortli, 4 C. & P. 254. The examination of a person taken on oath as a witness before Commissioners of Bankruptcy, is admissible against him on a charge of forgery, he having been cautioned and allowed to elect what questions he would answer. Reg. v. Wkeater, 2 Lewin, C. C. 157 ; 2 M. C. C. 45. Letter from Prisoner's Brother after Apprehension.] — On an indictment for forging a bank note, a letter purporting to come from the prisoner's brother, and left by the postman, pur- suant to its direction, at the prisoner's lodgings, after he was apprehended and during his con- finement, but never actually in his custody, can- not be read in evidence against him on his trial. Bex V. Huct, 2 Leach, C. C. 820. Extraneous Evidence that Document Invalid,] — Where the instrument forged is legal on the face of it, the prisoner may be legally convicted, although it appears from extraneous evidence that the forged instrument would not have been valid in law. Reg. v. Pike, 2 M. C. C. 70 ; 3 Jur. 27. Original Entry must be Produced.] — Upon an indictment for forging a cheque for 60Z. 10«., evi- Reg. Admissibility of Writing to Compare witli Forgery.] — Copy books found at the prisoner's house containing writing by the prisoner, and produced by a policeman, cannot be received in order to compare with the forged cheque. IT). On an indictment for forgery, it appeared that the prisoner, on the discovery of the forgery, being suspected, was asked to write his name, for the purpose of comparison, and did so : — Held, that the signature was not admissible on the part of the 'prosecution for that purpose. Reg. V. Aldridge, 3 F. & F. 781. Evidence of Knowledge.] — Uttering a forged order for the payment of money under a false representation is evidence of loiowing it to be forged. Rex v. Slwppard, 1 Leach, C. C. 226 ; 2 East, P. C. 967 ; B. & R. C. C. 169. Of Forgery.] — ^Where a prisoner utters an instrument with a forged indorsement or other writing, and a short time previously the instrument is shewn to have been in his posses- sion without such indorsement, there is some evidence of forgery, although there is no proof of the indorsement being ia the prisoner's hand- , writing, or if it is even shewn that he is unable to write. Reg. v. James, 4 Cox, C. C. 90. Statements of Prisoner as to other Documents.] — On the trial of an indictment for forgery of the acceptance of a bill of exchange, evidence of what the .prisoner said respecting other bills of exchange which are not in evidence, is not ad- missible. Reg. V. Coohe, 8 C. & P. 586. But see Beg. V. Broim, 2 F. & F. 559. Evidence of other Offences.] — ^L. was indicted for feloniously having in his possession a litho- gi-aphic stone, on which was engraved a portion of a Dutch coupon. A second lithographic stone , was found in his lodgings, in respect of which another indictment had been preferred against him ; — Held, that it was competent for the prosecution to give evidence on the trial of the first indictment of what was on the second stone. Beg. V. Zeigert, 10 Cox, C. C. 555. f. Witnesses. Who should be Produced.] — To prove the forg-, ing of a bank note, it is not necessary that the signing clerk at the bank should be produced, if witnesses acquainted with his handwriting state that the signature to the note is not in his hand- writing. Anon., R. & R. C. C. 378. On an indictment for uttering a forged will, which together with writings in support of it, was suggested to have been written over pencil marks which had been rubbed out, the evidence of an engraver, who has examined the paper with a miiTor, and traced the pencil marks, is admissible on the part of the prosecution. Reg. V. WUliams, 8 C. & P. 434. On an indictment for uttering a forged cheque in the name of J. W., on Messrs. C. G. & Co., who were anny agents and bankers, evidence by a clerk in the former department tjiat he did not know any customer named J. W., and that he Digitized by Microsoft® 283 CEIMINAL l^m-Forgery and Uttering Forged Instruments. had been told by the other clerks that there was not any such customer in the banking depart- ment is sufficient on the part of the prosecution to call upon the prisoner to shew that there was m fact such a person as J. W. having an account with Messrs. C. G. & Co, and, in the absence of such proof, is sufficient by itself for the iury Bex V. Brannan, 6 C. & P. 326. e. Jurisdiction to Try. Statute.]— By 2i & 25 Vict. c. 98, s. 41, if any imnon shall commit any offence against thix act, or slia}l commit any off'ence of forging or altering any matter whatsocrrr, or of offering, iitterhuj, disposiiig of, or putting off' any viatter whatsoever, knowing the same to be forged or altered, luhetlier the offence in any such' case sliall he indictable at common law, or by •virtue of any act passed or to be passed, every such offender may be dealt with, indicted, tried, and punished, in any county or place in lohieh he shall be apprehended or be in custody, in the same manner in all respects as if his offence had been actually committed in tliat county or place; and every accessory before or after the fact to any such offence, if tlie same be a felony, and every person aidi9ig, abetting, or counselling the commission of any such offence, if the same be a misdeameanor, may be dealt with, indicted, tried, and punlsluid, in any county or place in which he shall be apprehended or be in custody, in the same manner in all respects as if his offence, aiul the offence of his principal, had been actually committed in such comity or place. (^Similar to 11 Geo. 4 & 1 Will. 4, c. 66, s. 24, repealed.') 'By s. 50,, all iyulietable offences mentioned in this act ichich shall be committed within the jurisdiction of the Admiralty of England or Ireland shall be deemed to be offences of the same nature and liable to the same punishments as if they had been committed upon the land in England or Ireland, and may he dealt with, inguired of, tried, and determined in any county or place in England or Ireland in which the offender shall he apprehended or he in custody, in tlie same manner in all respects as if they had been actually committed in that county or place; and in any indictment for any such off'ence, or for being an accessory to such an offence, the 'venue in the margin shall be the same as if the offence had been committed in such couiity or place, aiul the offence shall be averred to have been committed on " the high seas :" provided that nothing herein contained shall alter or affect any of the laws relating to the government of her Majesty^ s land or naval forces. By 5 & 6 Vict. o. 38, the offence of forgery cannot he tried at guarter sessions. Evidence.] — On an indictment for forgery at common law, it is not necessary to prove that the party charged was in custody before the time of the trial, in order to give jurisdiction under 11 Geo. 4 & 1 Will. 4, c. 66, s. 24. Beg. T. Smythies, T. & M. 190 y 1 Den. C. 0. 498 ; 4 Cox, C. C. 94 ; 19 L. J., M. C. 31 ; 13 Jur. 1034. A verdict, in such case, of " guilty of forging, but there is no evidence of its having been done within the jurisdiction of the court," amounts to a conviction. lb. 284 for forgeiy in the county where he was in custody, under 11 Geo. 4 & 1 Will. 4, e. 66 s 24 the forgery might be alleged to have been cW mitted m that county, and there need not be any avement that the prisoner was in custody there. Rex v. James, 7 C. & P. 553. h. Election of Forgeries. Minor Offence, where Facts sufficient to Con- vict on Greater.]-The Bank of England having preferred several indictments for uttering and having m possession, in respect of the same note, and having elected to proceed on the indictment tor having m possession :— Held, that although facts sufficient to support the capital charge were made out in proof, an "acquittal for the minor ofEence ought not to be directed, because the whole of the minor ofEence was proved, and it did not merge in the larger. Anon., E. &'R. C. C. 378. The bank might elect to proceed on an indict- ment for a lesser offence, although an indictment had been found for a capital charge in respect of forging the same note. lb. When Prosecutor bound to Elect.]— On a count for uttering several forged receipts, the court will not put the prosecutor to his election on which receipt to proceed, if they be all uttered at the same time. Bex v. Thomas, 2 East, P. C. 934. i. Fnnishment. (24 ^- 25 Vict. c. 98, ss. 47, 48). j. Costs of Prosecution. By 24 & 25 Vict. c. 98, s. 54, the court before which any indictable misdemeanor against this act shall be prosecuted or tried may allow the costs of the prosecution in the same manner as in cases of felony ; and every order for the ^jayment of such costs shall be made out, and the sum of money mentioned therein paid and repaid, upon the same terms and in the same manner in all respects as in cases of felony. k. Power to seize Porged Instrujnents. (24 S; 25 Vict. e. 98, s. 46.) Bight to detain and impound Instruments, on the Ground of being Forged.] — A bill of costs of an attorney having been referred to one of the- prothonotaries of the common pleas of Lancaster for taxation, the client produced and handed to the prothonotary two receipts which it was alleged contained false entries, and the pro- thonotary was requested to retain them. It uppearing that the attorney was not on the roll, he declined to tax the bill, or to return the receipts. Ten days afterwards the client brought an action of trover against the prothonotary to recover the receipts. No proceedings had been taken by any parties with reference to the sup- posed fraudulent contents :— Held, that the pro- thonotary was justified in withholding the re- ceipts, for a limited time ; and although he could not ultimately detain them from the owner, yet an action brought only ten days after he received them was prematurely brought. Averment as to.] — Where a prisqner. was. tried. Miller y^.Eagct, 23 L. T. 365. Digitized by Microsoft® 285 CRIMINAL IjAW— Forgery and Uttering Forged Instruments. 286 In an action by payee against makers of a cheque, in which they pleaded that they did not make the cheque, their signatures were admitted, but it was opened for the defendants, that the defendants, who were directors of a company of which the plaintifE was secretary, kept blank cheques, with their signatures to them, in a book, and that this cheque was one of those filled up by the plaintifE without authority. The judge intimated that this would be a forgery, even though the whole sum the cheque was drawn for was due to the plaintiii. The plaintiff's counsel elected to be nonsuited, and the judge ordered the cheque to be impounded in the hands of the associate, but would not order the plaintiff to be taken into custody, as no evidence of any forgery had been given, and the whole matter rested upon the statement of counsel only. Moioer v. Shaw, 2 C. & K. 703 ; S. P., Wright's case, 1 Lewin, C. C. 135. B. JJTTEBING FOBGED INSTRUMENTS. 1. What is an Uttering. 2. Ecitlenee and Trial, 289. 1. What is an TJtteeing. Genuine Indorsement.] — The uttering a bill with a genuine indorsement, under pretence of being the indorser, will not subject the party to an indictment as for uttering a forged instru- ment, as it is only a misdemeanor. Bex v. Hevcy, E. & R. C. C. 407, n. ; 2 East, P. C. 556, 856 ;'l Leach, C. C. 229. Bill to Prisoner's Order — STo Indorsement.] — Forging a bill payable to the prisoner's own order, and uttering it without an indorsement as a security for a debt, is a complete offence, if done with a fraudulent intent, the bill having been issued to obtain credit, though as a pledge only. Bex v. Birltett, E. & E. C. 0. 86. Bill to Drawer's Order — No Indorsement.] — Uttering a forged bill of exchange, purporting to be payable to the drawer's order, with intent to defraud, is a complete offence, although there is no indorsement upon it importing to be the drawer's. Bex v. Wicks, R. & R. C. C. 149. Statute Passed after Forgery and before Uttering.] — On an indictment fox- forging a scrip receipt, it must appear that the receipt was signed subsequently to the passing of the statute on which the indictment is founded ; but though signed before, yet, if it was uttered after the passing of the act, the prisoner may be convicted on the count for uttering it, loiowing it to be forged. Bex v. Beeves, 2 Leach, C. C. 808, 814. Mere Shewing Instrument.] — Shewing a man an instrument, the uttering of which would be criminal, though with an intent of raising a false idea in him of the party's substance, is not an uttering. Bex v. Shuhard, E. & R. C. C. 200. If A. exhibits a forged receipt to B., a person with whom he is claiming credit for it, this is an uttering, although A. refuses to part with the possession of the paper out of his hand. Beg. V. Badford, 1 C. & K. 707; 1 Den. C. C. 59. Leaving Document Sealed up.] — Nor will the shewing of a forged receipt and leaving it after- wards, sealed up, with the person to whom it was shewn under cover, that he may take charge of it, as being too valuable to be carried about, be an uttering. Bex v. Shuhard, R. & R. C. C. 200. Delivery of, to Carrier in Box.] — Delivering a box containing forged stamps, to the party's own servant, that he may carry them to an inn, to be f oiTvarded by the carrier to a customer in the country, is an uttering. Rex v. Collieuit, R. & R. C. C. 212 ; 2 Leach, C. C. 1018 ; 4 Taunt. 300. Application to Purchase Forged Notes.] — The offence of disposing and putting away forged bank notes is complete, although the person to whom they are disposed was an agent for the bank to detect utterers, and applied to the prisoner to purchase forged notes, and had them delivered to him as forged notes, for the pui'pose of disposing of them. Bex v. Holdcrt, R. & R. C. C. 154 ; 2 Leach, C. C. 1019 ; 2 Taunt. 334. Presenting to Bank Clerk — Alteration after- wards.] — If a person presents a bill of exchange for payment, with a forged indorsement upon it of a receipt by the payee, and the clerk to whom he presents it objects to a variance between the spelling- of the payee's name in the bill and the indorsement, upon which the person altei-s the indorsement into a receipt by himself for the payee : semble, that the act of presenting the bill to the clerk previously to his objectidti is sufficient to constitute the offence of uttering the forged indorsement. Bex v. Arscott, 6 C. & P. 408. Note Given as a Specimen.] — If an engraving of a forged note is given to a party as a pattern or as a specimen of skill, the party giving it not intending that the particular note should be put in circulation, it is not an uttering. Rex v. Harris, 7 C. & P. 428. By Third Person.] — ^Upon proceedings before justices against a pawnbroker, under 39 & 40 Geo. 3, c. 99, s. 14, he delivering to them, through the hands of his attorney, a false and fabricated duplicate of goods that had been pledged with him, is an uttering by the pawn- broker. Beg. V. Fitehie, Dears. & B. C. C. 175 : 7 Cox, C. C. 257 ; 26 L. J., M. C. 90 ; 3 Jul-., N. S. 419. Bill of Fictitious Person.] — Putting off a bill of exchange of A., an existing person, as the bill of exchange of A., a fictitious person, is a feloni- ous uttering of the bill of a fictitious drawer. Reg. V. NesUtt, 6 Cox, C. C. 320. Giving Document to he Handed to Another.] —If A. gives to B. a forged certificate of a pre- tended marriage between himself and B., in order that B. may give it to a third party, A. is not guilty of an uttering. Reg. v. Meywuud, 2 C. & I^. 352. If a person knowingly delivers a forged bank- note to another, who knowingly uttei-s it accord- ingly, the prisoner, who delivered such note to be put off, might have been convicted of having dis- posed and put away the same, on 15 Geo. 2, c. 13 Digitized by Microsoft® 287 CRIMINAL J^AW— Forgery and Uttering Forged Instruments. ' 288 s. 11. Bex V. Palmer, E. & E. C. C. 72 ; IN R 96 ; 2 Leach, C. C. 978. .<^,ixN.n. Pass of Discharged Prisoner.]— A woman who apphes to a relieving oflBcer for money on a forged pass of a dischalged prisoner, purporting to have been given under 5 Geo. i, c. 85, and produces it to such oifioer, may be convicted of uttering a forged warrant and order for the pay- ment of money, although the forged pass direct the money mentioned in it to be paid to " William Henry," on his giving a receipt. Req. v. M'Coii- mill, 1 C. & K. 371 ; 2 M. C. C. 298. Uttering Eeceipts to get Credit therefrom.]— A. applied to B. to lend him money, and gave him the name of the defendant as a surety. B. went to him, and, to satisfy himseU of his re- spectability, asked to see his receipts for rent and taxes. The defendant placed in the hands of B., for his inspection, three documents pur- porting to be receipts for poor rates, with the intent to induce B. to advance money to A. One of these receipts was forged. B. inspected the documents, and then retui-ned them to the defen- dant : — Held, that the defendant might be con- victed of uttering a forged receipt, and that, for the purpose of rendering him liable, it was not necessary that the receipt should be used to get credit upon it by its operating as a receipt, but that it was suflacient it he used it fraudulently to obtain money by means of it. Reg. v. Ion, 6 Cox, C. C. 1 ; 2 Den. C. C. 175 ; 16 Jur. 746. Held, also, that it was immaterial whether the money to be obtained by means of it was for himself or for any other person. lb. The prisoner, servant of A., applied to B. for payment of lis. due from B. to A. B. refused to pay it without A.'s receipt. The prisoner went away and returned with a document, as follows : — " Received from Mr. Bendon, due to Mr. Warman, 17«. Settled." Whereupon B. paid the debt : — Held, a question for the jury whether the prisoner tendered the receipt as the handwriting of A., which would make him liable on this indictment ; or as his own, which would make his act a false pretence, lleg. v. Iiulcr, 1 Den. C. C. 325 ; 2 C. & K. 635. A. was treasurer of an unenroUed friendly society, and it was his duty to receive contri- butions from the members, and pay them into a bank in his own name for the benefit of the society. At meetings of the society he produced to the members a fictitious pass book, purporting to vouch for the payment of moneys by him into the bank. This book did not truly represent the state of the account between himself and the bank. He also at various times drew out moneys which he had paid in, and appropriated them to his own use. He was convicted upon an indict- ment which charged him with uttering a receipt for money, the jury finding that he presented a false account, with intent thereby to obtain credit for having duly paid into the bank the various sums which he, had received, and to be continued in his oifioe of treasurer with a view to obtain other moneys from the society, which he might firaudulently appropriate to his own use : — Held, that the conviction was right. Beg. V. Smith, 9 Cox, C. C. 162 ; L. &C. 168 ; 31 i. J., M. C. 151 ; 8 Jur., N. S. 572 ; 6 L. T. 300 ; 10 W. R. 583. A paid secretary of an unenroUed friendly society, of which his wife was a member, was directed by the society to pay into a savings bank i.01., given him for that purpose. At the next meeting he handed in a book, indorsed bavings Bank, New-street, Huddersfield," and on which was written, " 1855, Oct. 30, received iOl. ' The indorsement on and entry in the book were forgeries, and the money had not been paid into the bank. He was convicted of uttering this document, knowing it to be forged :— Held, that the conviction was right. Reg. v. Moudi/ L. & C. 173 ; 9 Cox, 0. C. 166 ; 31 L. J., M. C. 156 ; 8 Jur., N. S. 574 ; 6 L. T. 301 ; 10 W. E. 585. Conditional.] —A conditional uttering of a forged instrument is as much a crime as any other uttering. Where a person gave a forged acceptance, knowing it to be so, to the manager of a banking company where he kept an account, saying, that he hoped this bill would satisfy the bank as a security for the debt he owed, and the manager replied that that would depend on the result of inquiries respecting the acceptance : — Held, a sufficient uttering. Ren. v. Cooke, 8 C. & P. 582. Intent to Defraud is Necessary.] — Where a person had made alterations in a diploma of the College of Surgeons, to make it appear to be a document issued by the college to him, and had hung it up in his house, and shewed it to certain persons, it was found, by the case reserved for the court, that he had no intent, in the uttering and publishing, to commit any particular fraud or specific wrong to any individual : — Held, that he could not be convicted of uttering. Reg. v. Hodgson, Dears. & B. C. C. 3 ; 7 Cox. C. C. 122 ; 25 L. J., M. C. 78 ; 2 Jur., N. S. 45,S. ' On a charge of uttering a receipt with intent to defraud, the uttering being to the employer, and he appearing to have been indebted to the prisoner at the time, negatives an intent to de- fraud. Reg. V. Bradford, 2 F. & F. 859. Uttering a forged stock receipt to a person who employed the prisoner to buy stock to that amount, and advanced the money, is sufficient evidence of an intent to defraud that person ; and the oath of the person to whom the receipt was uttered, that he believed the prisoner had no such intent, will not repel the presumption of an intention to defraud. Resc v. Sheppard, 1 Leach, C. C. 226 ; 2 East, P. C. 967 ; R. & E. C. C. 169. Fraud actually Perpetrated.] — Uttering a forged instrument, the forgery of which is only a forgery at common law, is no ofEence, unless some fraud is actually perpetrated by it ; and where in such a case the indictment con- tained some counts for forging the instrument and others for uttering it, and the defendant was acquitted on the counts for the forgery, and convicted on the counts for the uttering, judg- ment was arrested. Reg. v. Bimlt, 2 0. & K. 604. The forgery of a railway pass to allow the bearer to pass free on a railway, is a forgery at common law ; but the uttering of it per se is not a misdemeanor. lb, A person was indicted for forging a testimonial to his character as a schoolmaster, and the indict- ment also charged him with having uttered the forged document. The jury acquitted him of the forgery, but found him guilty of the uttering with intent to obtain the emoluments of the place of Digitized by Microsoft® 289 CEIMINAL LAW — Forgery and Uttering Forged Instruments. 290 schoolmaster, and to deceive the prosecutor : — Held, that this iinding of the jury amounted to an ofience at common law, of which the prisoner was properly oonTioted. Meg. v. Sharman, Dears. C. C. 285 ; 6 Cox, C. C. 212 ; 23 L. J^, M. C. 51 ; 15 Jur. 157. Joint TJttering.] — Where three, were jointly indicted for feloniously using plates, containing impressions of forged notes : — Held, that the jury must select some one particular time after all three had become connected, and must be satisfied, in order to convict them, that at such time they were all either present together at one act of using, or assisted in such one act, as by two using, and one watching at the door to prevent the others being disturbed, or the like ; and that it was not sufSoient to shew that the parties were general dealers in forged notes, and that at different times they had singly used the plates, and were indi- vidually in possession of forged notes taken from them. Re.i: v. Harris, 7 C. & P. 416. V. was indicted for uttering forged post-olEce money orders. H. and S. were joined in the in- dictment and convicted. They had gone to the shop where V. uttered the orders, remaining out- side in a cab so situated that they could not sec or he seen by the people in the shop. They had pre- viously accompanied V. to another shop, where he failed to get change for the orders, and they assisted him in taking away the goods obtained at the second shop : — Held, that though they were not in the cab for the purpose of taking part in aiding or assisting in the actual act of uttering, they were rightly convicted. Reg. v. Vanderstein, 16 Ir. C. L. K. 574 ; 10 Cox, C. C. 146. 2. Evidence and Teial. Guilty Knowledge — Evidence of other Utter- ings.] — The prisoner, who had been stamp dis- tributor of the Queen's Bench Division, was indicted for uttering three law forms with forged stamps impressed thereon. The forms which were the subject of the indictment were those ordinarily used by the stamp distributor of the Exchequer. Division, and bore his par- ticular mark. It sometim&s happens that, in the process of stamping, a second sheet of paper is inadvertently placed' under the sheet which is brought into contact with the die ; this second sheet receives an impression, but of a fainter character, and one which can be distinguished from the impression made on the outer sheet. These second sheets are termed "blinds," and are never supposed to be issued by the stamping department, or regarded as genuine stamps. The principal defence was that when the prisoner sent to purchase genuine stamps at the Custom House, his messenger, either deceived by the guilty party or in collusion with him, brought back these "blinds," which were then innocently sold by the prisoner. To meet this defence, counsel for the crown proposed to give in evi- dence several documents from the files of the Queen's Bench Division, which were on forms headed with the printed device used on the prisoner's forms, and date-stamps on which were proved by the evidence of an expert to have been made with the same instrument as the forged stamps on the documents the subject of the indictment ; and in the prisoner's office implements were found suitable for the forgiuo- of such stamps. These documents were sub- mitted by the learned judge to the jury, not- withstanding that the prisoner's counsel objected to their reception on the ground that there was not sufficient evidence to connect the prisoner with them : — Held (Fitzgerald, -B., and Barry, J., dissenting), that there was sufficient evidence to connect the prisoner with these. documents, and of their having been uttered by him ; and that they were rightly submitted to the jury as evi- dence of guilty laiowledge in uttering the stamped instruments which were the subject-matter of the indictment. Beg. v. Colclovgh, 15 Cox, C. C. 92 ; 10 L. E., Ir. 241. On a trial for uttering a forged note scienter, the admissibility xif evidence of other utterings is not affected by Reg. v. Oddy, 2 Den. C. C. 264. Beg. V. Green, 3 C. & K. 209. Upon an indictment for disposing of and putting away a forged bank note, knowing it to be forged, the prosecutor may give evidence of other forged notes having been uttered by the prisoner, in order to prove his knowledge of the forgery. Bex v. Wylie, 1 N. E. 92 ; S. C, nom. Bex V. WJiiley, 2 Leach, C. C. 983; S. P., Beic v. Tattersall, 1 N. E. 93, n. So proof that a prisoner had in his possession other bills or notes of the same kind is admissible. Bex V. Hough, E. & E. C. C. 120. So proof that he pointed out where such others were hidden. Bex v. Bowley, Bayl. Bills, 448. If the possession of other forged instruments is offered in evidence to prove a guilty knowledge, there must be regular evidence that such instru- ments were forged ; proof that the prisoner re- turned the money on such an instrument, and received the instrument back, is not sufficient without producing the instrument or duly ac- counting for its non-production. Rex v. Millard. E. & E. C. C. 245. Upon an indictment for uttering a forged note, evidence is admissible of the prisoner's having, at a prior time, uttered another forged note of the same manufacture ; and also that other notes of the same fabrication had been found on the files of the bank, with his handwriting on the back of them, in order to shew his knowledge that the note mentioned in the indictment was a forgery. Bex V. Ball, E. & E. C. C. 132 : 1 Camp. 324 ; 2 Leach, C. C. 987, n. If a second uttering is made the subject of a distinct indictment, it cannot be given in evidence to shew a guilty knowledge in a former uttering. Rex V. Smit7i, 2 C. & P. 633. On an indictment for uttering forged Polish notes, conversations with the prisoners respecting the forgery and circulation of forged Austrian notes are admissible to prove the scienter. Bex V. Harris, 7 C. & P. 429. On an indictment for engraving or uttering notes of a foreign prince, evidence of a recent engraving or uttering notes of another foreign prince is admissible, in proof of a guilty know- ledge. Bex V. BalU, 1 M. C. C. 470. In a prosecution for forging and uttering a receipt, knowing it to be forged, it was proposed to give in evidence other acts of forgery by the prisoner, against the same prosecutor, as evidence of guilty knowledge, on the count for uttering. It was objected 'that they could only be given in evidence if they were forgeries, and there was no evidence of that without first asking the jury to find them so, which was not the issue they had to try : — Held, that the whole evidence must ba Digitized by Microsoft® 291 CEIMINAL LAW -Forgery and Uttering Forged Instruments. 292 ■confined to the document they were proceeding upon, without at all trenching upon the rules as to uttering in other cases, lief/, v. Moore, 1 F. & F. 73. "^ ' Upon an indictment for uttering a forged bill, the previous uttering of other bills forged in other names may be given in evidence in proof of guilty knowledge. Bm. ,. Salt, 3 F. & F. 834. It is impracticable to lay down any general rule as to the time within which such previous uttering must have taken place, in order to be admissible. lb. In order to shew a guilty knowledge, on an indictment for uttering forged bank notes, evi- dence of another uttering, subsequently to the one charged, is not admissible, unless the latter uttering was in some way connected with the principal case, or it can be shewn that the notes were of the same manufacture ; for only previous or contemporaneous acts can shew quo animo a thing is done. Ecr v. Tavemcr, Car. C. L. 195. Sufficiency for Conviction.] — A bill was ad- dressed to Messrs. Williams & Co., bankers, Birchin-lane, London, .and there might, at that time, have been a 3 on the lower left-hand corner of the bill ; the prisoner was asked at the time whether the acceptors were "Williams, Birch & Co., and his answer imported that they were. Williams, Birch & Co. lived at No. 20, Birchin- lane, and it was not theii' acceptance. There were no other known bankers in London using the style of Williams & Co. ; but at No. 3, Birchin- lane, the name of " Williams & Co." was on the door ; and some bills addressed to Messrs. Williams & Co., bankers, Swansea, had been accepted, pay- able at No. 3, and had been paid there. There was no evidence who lived at No. 3, but another bill of the same tenor as that in question, drawn by the prisoner, had been accepted there : — Held, that on these facts he was improperly convicted of uttering a forged acceptance, knowing it to be forged. Ilex v. Watts, E. & E. C. C. 436 ; 3 B. & B. 197 ; 6 Moore, 442. On a charge of uttering an order or a request for the delivery of goods, proof of the receipt of goods by the prisoner is no evidence of the uttering. Beg. v. JoUiison, 6 Cox, C. 0. 18. Election hy Prosecutor as to what Facts he Belies on.] — On an indictment for uttering a forged bill of exchange, the judge will hear evidence of all the facts which form parts of one continued transaction relating to the uttering of the bill, and will not press the prosecutor to elect what particular fact he means to rely upon as the uttering, till the case for the prosecution is closed. Bex v. Hart, 7 C. & P. 652. Venue.] — Putting a letter into the Manchester post-olBce, containing a forged instrument, is an uttering in the county of Lancaster, and the post-mark is evidence of such an uttering. Per- kin's case, 2 Lewin, C. C. 150. Jurisdiction.] — Uttering in England a forged note, payable in Ireland only, was within the Forgeiy Acts prior to 11 Geo. 4 & 1 Will, i, o. 66. Bex V. Mrkwood, 1 M. C. C. 311. [See now^ ~2i & 25 Vict. c. 98, s. 41.] C. EFFECT OP FORGERY. Liability of Partaership.]_A., B. and C. were proprietors of stock as trustees, and C, D. and li. were bankers. C. executed a letter of attor- ney empowering D. and E. to sell the stock, and torged the signatures of A. and B. The stock was sold and transferred in the books of the Bank of England, to the credit of the buyers, and the produce of the stock was paid into the bankmg-house of C, D. and E. ; C. was after- wards tried and convicted of forging a similar instrument, and executed :— Held, upon an issue directed in chancery (it being part of the order that no objection should be taken that he was interested as a trustee, and a partner in the banking-house), that the money received by the banking-house constituted a debt due from them to the trustees. St.one v. Marsli, 6 B. & C. 551 ■ E. & M. 364. ' Money had and Received.]— A party whose stock has been sold under a forged power of attorney may recover the value as money had and received from the purchaser. Marsh v. KeatiTig, 1 Bing. N. C. 198 ; 1 Scott, 5. Payment of Cheque.]— When a cheque drawn by a customer upon his bankei-s for a sum of money described in the body of the cheque in words and figures, was afterwards altered by the holder, who substituted a larger sum for that mentioned in the cheque, but in such a manner that no person in the ordinary course of business could observe it, and the bankers paid to the holder the larger sum : — Held, that they could not charge the customer for any amount beyond the sum for which the cheque was originally drawn. Hall v. Fwller, 5 B. & C. 750. Replacing Stock.] — Stock of a railway com- pany was standing in the books of the company in the names of two persons, A. and B. B., by a transfer executed by himself, and to which he forged the signature of A., transferred the stock to a third person whose name was substituted upon the register for the names of B. and A. A. died soon afterwards : — Held, that the personal representative of A. had a legal right to call on the company to replace the stock, though the right of action at law was gone. MUlla/nd Bail- way Company v. Taylor, 31 L. J., Ch. 336 ; 6 L. T. 73— H. L. The owner of railway shares in two companies took certificates from the companies, for which he gave receipts. In so doing he gave his address, in one instance, at the oflice of a banking com- pany, in the other, at a club. He deposited the certificates with the manager of the bank for safe custody. The manager fi'audulently sold the shares, Snd forged the name of the owner to transfer deeds of the shares. The companies wrote to him informing him of the transfers ; and receiving in one instance no answer, and in the other an answer purporting to come from the owner, but in reality forged by the manager, registered the shares. On a bill against one of the companies and the purchaser, praying that the purchaser might be decreed to deliver up the certificate to the owner, that the company might be decreed to cancel the alleged transfer, and the entry of it in their books, to deliver to the owner a stock certificate, and to pay the dividend then due, and all future dividends : — Held, that Digitized by Microsoft® 293 CEIMINAL LAW — Forgery and Uttering Forged Instruments. 294 he was entitled to the relief prayed, bat without prejudice to any question at law or in equity between the co-defendants. Johnston v. lienton, Johnston \. Farsey, 9 L. K., Eq. 181 ; 39 L. J., Ch. 390 ; 22 L. T. 90 ; 18 W. K. 28i. Praudulent Mortgage.] — A son who was heir- at-law to his father, and one of the executors and trustees of his father's will, fraudulently mortgaged some of the testator's property by forging a deed as if he were the absolute owner, his name and his father's name being the same. The co-executors and co-trustees were not cogni- zant of the transaction : — Held, in an action by them claiming a declaration that the mortgages were void against them, that nothing passed to the mortgagees by the forged mortgage deeds, but that as the son bad a beneficial interest under the will, his interest passed to them. Cooper, In re, Cooper v. Vcsey, 20 Ch. D. 611 ; 51 L. J., Ch. 862 ; 47 L. T. 89 ; 30 W. E. 6i8— C. A. See Keate v. Phillips. 18 Ch. D. 560 ; 50 L. J., Ch. 664 ; 44 L. T. 731 ; 29 W. K. 710. Fox v. Hawks, 13 Ch. D. 822 ; 49 L. J.. Ch. 579 ; 42 L. T. 622 ; 28 W. E. 656. Estoppel hy Conduct.] — A person who knows that a bank is relying upon his forged signature to a bill, cannot lie by and not divulge the fact until he sees i.hat the position of the bank is altered for the woa'se, but mere silence is insuf- ficient if the position of the bank is not altered. M^Kenzw v. British lAiieTi Company, 6 App. Gas. 82 ; 44 L. T. 431 ; 29 W. E. 477— H. L. (Sc). Estoppel by Negligence.] — T., the registered holder of five shares in a company, deposited the share certificates with a stockbroker. A forged transfer of the shares to S. and G. having been left with the secretary for registration, together with the share certificates, he, in accordance with the usual custom of business, registered the transfer and removed the name of T. from and placed the names of S. and G. upon the register as holders of the shares, and share certificates were handed to them. B. and G. having, through their broker, bought on the Stock Exchange five shares in the company, S. and G. transferred the shares comprised in the false transfer to B. and G. respectively, and they were registered as the holders of the shares, and share certificates were handed to them : — Held, first, that the company, by giving the certificates, represented that S. and G. were the lawful holders of the shares mentioned in them, intending that persons pur- chasing the shares should act thereon, and that B. and G. having bonS, fide acted upon that representation, the company was estopped from denying the truth of it. Held, secondly, that B. and G. were entitled to recover from the com- pany the value of the shares at the time the company refused to recognize them as share- holders, with interest at il. per cent. Bahia and San Francisco Railway Compan/y, In re, Trittin, In re, 3 L. E., Q. B. 584 ; 37 L. J., Q. B. 176 ; 18 L. T. 467 ; 16 W. E. 862 ; 9 B. & S. 844. The plaintiffs, merchants in New York, in- closed in a letter to "W. & Co., their correspon- dents in England, a cheque drawn on Smith & Co., bankers, London, and indorsed by the plain- tiffs to W. & Co. The letter was placed with others for the purpose of being posted, but was abstracted, and the cheque was some time after presented to the defendants by C, the cheque at that time bearing a forged indorsement to 0. At the request of C, the defendants obtained cash for the cheque from Smith & Co., and allowed C. to draw for the amount : — Held, there being evidence of negligence in the plaintiffs disentitling them to sue, that they were entitled to recover from the defendants the amount of the cheque, for the p/operty in the cheque never having passed out of the plaintiffs, the defen- dants were guilty of a conversion, and therefore they were entitled to waive the tort, and hold the proceeds of the cheque to be money received to the plaintiffs' use. Evidence was tendered by defendants, which was rejected, of a practice of sending, besides the letter containing the draft, a letter of .advice by the same or another ship ; with a view to shew that the plaintiffs in omitting to do so were estopped by their own negligence from recovery : — Held, that such evidence was rightly rejected, for negligence in order to operate as an estoppel must be in the transaction itself, and there was no duty either towards W. & Co., or the general public, cast on the plaintiffs to comply with siich a practice, which could only be collateral to the transac- tion. Arnold y. Clieqne Banh ; Arnolds, City Bank, 1 C. P. D. 578 ; 45 L. J., C. P. 562 ; 34 L. T. 729 ; 24 W. E. 759. Trustees of a charity incorporated by act of parliament, and having a common seal, possessed stock in the public funds, which stock was regis- tered in the Bank of Ireland. The secretary of the trustees was allowed to have the seal in his possession. Five several powers of attorney, prepared in different years, sealed with the seal of the trustees, the due affixing of which seal was attested by witnesses, who (though without any fraudulent intention) attested what was not true, since the seal was af&xed by the unautho- rized act of the secretary alone, were presented to- the bank, and the stock was transferred. The facts were afterwards discovered, and the secre- tary was indicted and convicted. By a power of attorney duly executed, the trustees then autho- rized C. to transfer the stock, but the bank refused to make the transfer. An action was brought by the trustees on this refusal ; the judge who tried the cause told the jury that if under these circumstances the trustees had so negligently conducted themselves as to contri- bute to the loss, the verdict must be given for the bank. On exceptions for this direction : — Held, that it was wrong. Banh of Ireland v. Evans' Charities (^Trustees'), 5 H. L. Cas. 389. S., wishing to sell certain shares of which he was the owner, was induced by his broker to execute a transfer, leaving a blank for the broker to insert the numbers and description of the shares. The broker fraudulently filled up the blank with the numbers and description of other shares belonging to S., but in a different company, namely, that of the defendants ; and passed the transfer as a genuine transfer to a purchaser. By the rules of the defendants' com- pany, it was necessary to produce certificates of the shares before a purchaser's name could be entered on the register as the holder of the shares. The certificates of the shares were kept by S. in a box in the broker's custody. The box was locked, and S. kept the key. The broker, however, managed to get a duplicate key, and stole the certificates, and produced them with the transfer, and the name of the purchaser was registered. . In an action by S. , claiming damages Digitized by Microsoft® 295 CEIMINAL luAW— Government Stores. 296 and a mandamus to have his name restored to the register in respect of the shares :— Held, that b. had been guilty of no false representation or culpable negligence such as estopped him from chargmg that the transfer deed was a forgery. Swan v. JVbrth British Australasian Company, 2 H. & C 175 ; 32 L. J., Ex. 273 ; 10 Jur., N. S. 102 ; 11 W. R. 862— Ex. Oh. Affirming 7 H. & N. 603 ; 31 L. J., Ex. 425. C, the plaintiff in the second action, had been since 1875 the proprietor of certain stock in the London and South-Western Railway Company. P., the confidential clerk of C, feloniously got possession of a certificate for l.OOOZ. of the stock, and sold that amount. Subsequently he forged C.'s name to the transfer, and forwarded it, to- gether with the certificate, to the brokei-s of Major W., the plaintifE in the first action, who had purchased the stock from T., a member of the Stock Exchange. The brokers forwarded the transfer and the certificate to the company for registration. The company thereupon wrote to C. at his usual address, inquiring if the trans- ier were correct. The letter was intercepted by P., who replied in a way which appeared not quite satisfactory. The company forwarded a second letter, which was also intercepted by P., who gave the company an explanation, with which they were satisfied, and they immediately sent a new certificate to Major W.'s brokers. The fraud was subsequently discovered, and now Major W. sought to recover from the company on the ground that (inter alia) he was entitled to rely upon the certificate of registration, which the company were estopped from questioning, as he, Major W., relying upon it, had so prejudi- cially altered his position as to bring the case within the authorities upon estoppel. The plain- tifE in the second case sought to have his name replaced in the books of the company as the owner of the said stock : — Held, that the com- pany, having issued the certificate without any want of care and bonS, fide, were not estopped from contesting its validity. Waterliouse v. London and South- Western. Railway Com- pany, Coates V. London and Smith-Western Hallway Company, 41 L. T. 553 ; 44 J. P. 154. Held, also, upon the facts, that the judgment must be for the defendants in the first action, and for the plaintifE in the second action with costs. lb. C. owned stock in a company incorporated under the Companies Act, 1862. His clerk. P., contracted to sell stock in the company to S., who was the nominee of B. In order to- carry out the contract, P. forged a transfer from C. to S., which was left by S. at the office of the com- pany for registration. Th'e company sent a letter to C. inquiring whether the transfer was correct : as they received no answer from him they regis- tered the transfer. B. borrowed money from a bank, and by way of security for the loan the stock was transferred by S. at the request of B. to I. as trustee for the bank, and the company registered I. as owner and issued a certificate accordingly. The money borrowed by B. was afterwards repaid by him to the bank, and the stock was held by I. as a bare trustee for B. The forgery was discovered, and the company then refused to acknowledge I. as the holder of the stock. In an action brought by B. and I. to compel the company to recognize their title :-^ Held, that although I., as trustee for the bank, might have acquired a good title by estoppel against the company, yet that title ceased when the loan by the bank was paid ofE, and that no estoppel existed in favour of B. against the com- pany ; for B. in contracting, through S., to buy the stock belonging to C, had acted on the faith of the forged transfer, and had not relied upon any act of the company, and by sending the forged transfer to the company had induced them to recognize his nominee as the holder, and that the action would not lie. BaMa and Sam, Francisco Railway Company, In re (3 L. R., Q. B. 585) ; Sart v. Frontino, ^-c. Gold Mining Company (5 L. R., Ex. Ill) ; and Knights v. Wiffen (5 L. R., Q. B. 660), discussed. Simm v. Anglo-American Telegraph Company ; Anglo- American Telegraph Company v. Spnrlinn, 5 Q. B. D. 188 ; 49 L. J., Q. B. 392 ; 42 L. T. 37 ; 28 W. R. 290 ; 44 J. P. 280— C. A. Ratification.]— J. indorsed to the plaintiff a promissory note, bearing a signature which he stated to be the defendant's, but which was a forgery. Shortly before the note became due, the plaintiff, hearing from the defendant that the signature was a forgery, threatened to pro- secute J. : whereupon the defendant, to prevent his doing so, said that he would pay the money, and signed a memorandum to the effect that he held himself responsible for the note, describing it as bearing his signature. The plaintiff having sued the defendant upon the note, the judge ruled that the defendant had ratified the forged signature, and directed a verdict for the plain- tiff :— Held (per Kelly, C. B., Channell, B., and Pigott, B., dissentiente Martin, B.), that this ruling was wrong, because the defendant's ar- rangement was not a ratification of a signature, written by an agent claiming to have authority from the defendant in that behalf, but an agree- ment upon the defendant's part to become liable on the bill in consideration of the plaintiff's for- bearing to prosecute J., which agreement was void as against public policy ; and also because no act in its inception illegal and void, such as a forgery, can be ratified by matter subsequent ; and that the defendant was not estopped from setting up the forgery as a defence to the action. Brooh V. Hooh, 6 L. R., Ex. 89 ; 40 L. J., Ex. 50 ; 24 L. T. 34 ; 19 W. R. 508. XX. GOVERNMENT STORES. Possession of, without Fraud.] — One became possessed, on the death of her husband, of can- vas stores, which had been purchased by him in his lifetime, at » public sale, and had been many years made up into household furniture, but no evidence was given of any certificate of such sale being lawful, as required by 9 & 10 "Will. 3, c. 41, or of any excuse allowed by the act ; yet the possession being, by act of law, without fraud :— Held, not within the penalty of the statute. Anon., 2 East, P. C. 765. Indictment.] — An indictment under 39 & 40 Geo. 3, c. 89, alleged that A., on the 19th day of May, 1842, not being a contractor, had in his possession naval stores : — Held, that the date given applied to the allegation that A. was not a contractor, as well as to the allegation that he had possession of the stores, and therefore that it was sufficiently averred that he was not a con- tractor at the time of such possession. Silver- Digitized by Microsoft® 297 .CRIMINAL L,AW— Gunpowder. 298 sides V. Mcff. (in error"), 2 G. & D. 617 ; 3 Q. B. 406 ; 6 Jur. 805. Evidence to Support Conviction. ] — Bags marked M. were forwarded from Portsmouth to London by railway, and were deposited in the goods department of the railway company in London. The prisonei', a marine store dealer at Ports- mouth, wrote and telegraphed to G., an officer of the company, to deliver the bags to E. The bags, on being opened, were found to contain naval stores marked with the broad arrow. The bags had been delivered at the Portsmouth station by two women, but there was no evidence to con- nect them with the prisoner. Bags marked B. had previously been forwarded by the company to their goods department in London, and de^ livered to E., in accordance with directions re- ceived from the prisoner. He was indicted, under 9 & 10 Will. 3, c. 41, s. 2, for having naval stores in his custody, possession and keeping, and convicted : — Held, that the evidence was sufficient to support the conviction. Reg. v. Sunle^j, Bell, C. C. 145 ; 8 Cox, C. C. 179 ; 5 Jur.. N. S. 551 ; 33 L. T., 0. S. 154 ; 7 W. B. 418. A. was indicted, under 9 & 10 Will. 3, c. 41, s. 2, for having been found in possession of naval stores marked with the broad arrow. It was proved that he delivered to the captain of a coasting vessel a cask containing copper bolts, a portion of which was marked with the broad arrow. The cask was seized by the police before the vessel sailed. In answer to questions put to the jury, they found that A. was in the possession of the copper bolts ; that they had not sufficient evidence before them to shew that he knew that the copper, or any part of it, was marked with the broad arrow ; and that he had reasonable means of knowing that it was so marked : — Held, that upon this finding of the jury he was entitled to an acquittal, as it must be taken that he -did not know that the copper was marked. Seg. v. Sleej}, L. & C. 44 ; 8 Cox, C. C. 472 ; 30 L. J., M. C. 170 ; 7 Jur., N. S. 979 ; 4 L. T. 525 ; 9 W. R. 709. Held, that the conviction was also wrong upon the ground that the copper was not found in his possession. lb. Knowledge that Mark on Stores.] — ^An indictment framed under 9 & 10 Will. 3, c. 41, and 55 Geo. 3, c. 127, and charging that the prisoners received, and had in their possession, certain government stores, will not be supported by evidence which merely shews that they were dealing with the cases in which the stores were placed — in the absence of evidence to shew that they knew the government mark was on the stores. Her/, v. O'Brien, 15 L. T. 419. On an indictment charging the defendant with being in possession of naval stores marked with the broad arrow, it is necessary to shew not only that he was possessed of the articles, but also that he knew they were marked with the broad arrow. Hefl. V. Cohen, 8 Cox, C. C. 41. The bare possession of marked naval stores does not render a person liable to be convicted under 9 & 10 Will. 3, c. 41, if he was ignorant that the stores are so marked. Mec/. v. WiUmett, 3 Cox, C. C. 281. A defendant charged with the possession of two lots of marked naval stores produced at hie trial two certificates in respect of the different lots, signed respectively by the commodore super- intendent of the Woolwich Dockyard, and the secretary of the board of ordnance, the former having been granted to the person of whom the defendant purchased, the latter to the defendant himself : — Held, that these certificates, though not strictly in accordance with 9 & 10 Will. 3, c. 41, ss. 2, 4, were nevertheless an answer to the charge. lb. raise Entries in Books to conceal Erandalent Charges.] — The fraudulently charging, by a purser, of stores which were never issued, and the making of false entries in the ship's books to cover such charges, is an offence punishable " according to the laws and customs in such cases used at sea," as amounting under 22 Geo. 2, c. 33, s. 36, to "a crime not capital, committed by a person in the fleet not before mentioned in this act, and for which no punishment is thereby directed to be inflicted." Matin v. Owen, 4 M. & R. 449 ; 9 B. & C. 595. Summary Conviction.] — On a summary convic- tion under 39 & 40 Geo. 3, c. 89, s. 18, for unlaw-' f ul possession of naval stores, the commissioner (or superintendent since 2 & 3 Will. 4, c. 40, ss., 10, 11), or a justice of the peace, has power, in the alternative, either to inflict a fine, or to imprison with bard labour without imposing a fine. JReg. v. Willmott, 1 B. & S. 27 ; 30 L. J., M. C. 161 ; 7 Jur., N. S. 1053 ; 4 L. T. 208 ; 9 W. R. 633. The pendency of an appeal under s. 21 has not the effect of suspending the operation of the sentence. lb. Summary convictions under that act are not affected by 11 & 12 Vict. u. 43. lb. XXI. GUNPOWDER. Illegal Making, Use and Employment.] — By 24 & 25 Vict. c. 97, s. 54, wliosoerer shall mahr or manufacture, or knounngly hare in hispossenxion, ' any guwpoicdcr, or other exjilosivc siiistancr. or any dangerous or noxious thing, or any maehinc, engine, instrv/ntent or thing, with intent thereby or by means thereof to commit, or for the 2>i'r- pose of enabling any other person to commit, any of the felonies in this act mentioned, shrill be guilty of a misdemeanor, and, being eonricted thereof, shall be liable, at the discretion of the court, to be imprisoned for any tcrlh not crci-cd- ing two years, with or without hard labour, and with or without -inlitary confinement, and, if a male under the age of si.r.teen years, with or without lohipjring. {Former protision, 9 & 10 Vict. c. 25, s. 8.) By s. 55, any justice of the peace of any county Of place in which any machine, engine, imple- ment or thing, or any gunpowder or other ei-plo- sii-e, dangerous, or noj'ious substance, is suspected to be made, Jupt or carried for the purpose of being used in committing any of the felonies in this act mentioned, upon reasonable cause as- signed upon oath by any pierson, may issue a warrant under his hand and seal for searching in the daytime any house, mill, magazine, store- house, ivarehouse, shop, cellar, yard, wharf or other place, or any carriage, waggon, cart, ship, boat or ressel, in which the same is -Huspected to be made, hept or carried for -fach 2mrpose as hereinbefore mentioned; and every person acting Digitized by Microsoft® 299 CRIMINAL LAW — Larceny and Receivers. 300 ■in the execution of any mch warrant sliall han; for seizing, removing to proper places, and de- taining every such machine, engine, implement and tldiig, and all such gunpowder, explosive, dangerous or noxious substances found upon such seavcli, which lie shall hate good cause to suspect to he intended to he used In committing any such offence, and the harrcls,xiacha(ies, cases and other receptacles in which the same shall he, the same powers and protections which are given to persons searching for unlawful quan- tities of gunpowder under the icarrant of a pix- tice hy 23 & 2i Vict. c. 139. Delivery of, for Carriage on Ship.] — It would seem that if persons put on board a ship an unknown article of a combustible and a danger- ous nature, without giving due notice of its con- tents, so as to enable the master to use proper precautions in the stowing of it, they are guilty of a inisdenieanor. Williams v. East India Company, 3 Bast, 192, 201. Intent to Uurder by.]— &¥ Mukdee, and Offences against the Person, infra. Inflicting Injuries by.]— &!e Murder, etc., infra. XXII. LAECBNY AND RECEIVERS. A. LARCENY. 1. The Offence. a. Felonious Intent, 300. h. The Taking, 304. c. Where Delivery by Owner passes Pos- session and Right of Property, 309. d. Where Possession obtained animo furandi, 812. e. Where Possession originally obtained bon^ fide — Subsequent Felonious In- tent, 319. /. Where Delivery does not alter the Posses- sion in Law, 323. g. Agamst Will of the Owner, 326. h. Carrying Away — Asportation, 327. i. Possession of Owner, what Sufficient, 330. 2. What are the Suhject of Larceny. a. GeneraUy, 332. h. In Particular Cases. i. Documents, Bills, Securities, &c., 334, ii. Horses, Cattle, &c., 338. iii. Deer, 338. iv. Doves or Pigeons, 340. V. Fish, 340. vi. Dogs, 343. vii. Birds and other Animals, 344. viii. Carcases or Skins, 344. ix. Fixtures, 345. X. Trees, Shrubs, Vegetables, and Fences, 346. 3. Persons who may Commit Offence, a. Clerks or Servants, 349. h. Tenants or Lodgers, 349. c. Persons in the Queen's Service, or the Police, 350. d. Post Office Servants and Others, 351. e. Fraudolent Bailees, 354. 4. Taliioig in Particular Places. a. From the Person, 859. h. In a Dwelling-House, 360. c. In Manufactories, 362. d. From Mines, 363. c. From Ships in Ports, or on Navigable Rivers or WhaiTes, 364. /. Abroad, or on the High Seas, 364. 5. Indictment. a. GeneraUy, 365. h. Description of Thing Stolen, 367. c. Allegation and Proof of Ownership of Property, 371. 6. Trial. a. Jurisdiction to Try, 378. *. Practice, 379. c. Evidence, 381. d. Recent Possession of Stolen Property, 384. e. Punishment, 386. 7. Restitution and Recovery of Stolen Pro- . perty, 386. 8. Effect of Larceny mi Ownership of Pro- perty, 391. B. RECEIVERS OP STOLEN PROPERTY. 1. Statutory Provisions, 392. 2. Wliat is a Receiving, 393. 3. What is Stolen Property, 395. 4. Joint Receivers, 396. 5. Indictment, 397. 6. Trial. a. Jurisdiction, 398. h. Practice, 399. c. Evidence, 400.. 1. The Offence. (24 ,]■ 25 Viet. e. 96.) a. Felonious Intent. Intention to deprive Owner of Goods per- manently.] — To constitute larceny it is necessary that the party should have had an intention to deprive the owner of his property permanently. Reg. V. Ilolloway, 2 C. & K. 942 ; 1 Den. C. C. 370 ; T. & M. 48 ; 3 New Sess. Gas. 410 ; 3 Cox, C. C. 241 ; 18 L. J., M. C. 60 ; 13 Jur. 86. The correct definition of larceny is the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, with a felonious intent to convert them to his (the taker's) own use, and make them his own pro- perty. The fraudulent taking being explained to be a taking without any colour of right, and the felonious intent, an intent to deprive the owner permanently of his property. Tb. A person who had surreptitiously taken a printed document from a government office, and sent it to a newspaper office to be published, being Indicted for larceny : — Held, that the question for the jury was whether he had the object and Intention of depriving the govern- ment permanently of the property in the paper. Reg. V. Giu-rnsey, 1 F. & F. 394. A banker's clerk enters a fictltloos sum in the ledger to the credit of a customer, and tells him he has paid that sum to his account ; and on the faith of it obtains from the customer his cheque on the bankers, which the clerk pays to himself by bank notes from the till, and enters in the waste book a true account of the cheque, drawer and notes, as paid to " a man : "—Held, a felonious taking of the notes from the till. Rex v. Hammon, 4 Digitized by Microsoft® 301 CRIMINAL LAW — Larceny and Receivers. 302 Taunt. 304 ; 2 Leach, C. C. 1083 ; K. & K. C. C. 221. "Where the prisoners having entered a stable at night, and taking out horses, rode them thirty- two miles, and then left them at an inn, and were afterwards found pursuing their journey on foot ; and the jury found that they took the horses merely with intent to ride and afterwards to leave them, and not to return or make any further use of them : — Held, that this was a trespass and not a larceny. Hea; v. Phillips, 2 East, P. C. 662. The defence to a charge of stealing, that the prisoner pledged the property, intending to redeem and then restore it, is a defence not to be generally encouraged, though, if clearly made out in proof, it may be allowed to prevail. The rule for the jury's guidance in such a case seems to be, that, if It clearly appears that the prisoner only intended to raise money upon the property for a temporary purpose, and at the time of pledging the article had a reasonable and a fair expectation of being enabled shortly, by the receipt of money, to take it out and restore it, he might be acquitted ; but, otherwise, not. lieff. V. Phetheon. 9 C. & P. 558. On a charge of larceny it was proved that the prisoner had taken property from ready-furnished lodgings that were let to her, and had pawned it : — Held, that the fact that she had frequently pawned and afterwards redeemed portions of the same property, was no answer to the charge. There must not only be the intent, but also the ability to redeem, to render such defence available. Beg. V. Medland, 5 Cox, C. C. 292. Upon an indictment for larceny, it was proved that a box of plate having been deposited with the prisoner for safe custody, he broke it open, and took out a part of the plate, which he offered io a pawnbroker as a security for 501. His offer was declined, but he afterwards pledged the whole box of plate with another person as security for 200Z. When he was called upon to restore the plate to the owner, he had not the means of redeeming it, and was taken into custody. The j ury found him guilty, but recommended him to mercy, believing that he intended ultimately to return the pro- perty : — Held, that he was riglitly convicted of larceny at common law, because the jury had found a verdict of guilty which was well war- ranted by the evidence ; and though they had recommended him to mercy on the ground that he intended ultimately to restore the property, that expression was not necessarily inconsistent ■with the verdict, and ought not to be considered equivalent to a finding, that at the time when he took the plate wrongfully he tooli it for the purpose of merely making a temporary use of it. Reg. V. TrehUcoch, 7 Cox, C. C. 408 ; Dears. & B. C. C. 453 ; 27 L. J., M. C. 103 ; 4 Jur., N. S. 123. Lucri Causa — Private Advantage.] — A servant of B. applied for at the post-ofiBcc and received all the letters addressed to B. She delivered them all to B., except one, which she burned. Her motive for destroying it was the hope of suppressing inquiries respecting her character : — Held, a larceny, and that, supposing lucri causa to be a necessary ingredient therein (which the court did not admit), there was a sufficient lucrum proved. Req. v. Jones, 1 Den. C. C. 188 ; 2 C. & K. 236. To make a taking felonious it Is not necessary that it should be done lucri causS, ; taking with an intent to destroy will be sufficient to constitute the offence of larceny, if done to serve the prisoner, or another person, though not in a pecuniary way. Be.v V. Cabhage, B. & E. C. C. 292. But if a person, from idle curiosity, either personal or political, opens a letter addressed to another person, and keeps the letter, this is no larceny, even though a part of his object may be to prevent the letter from reaching its destina- tion. Reg. V. Godfrey, 8 C. & P. 563. A person employed in the post-office committed a mistake in the sorting of two letters containing money, and he threw the letters, unopened, and the money, down a water-closet, in order to avoid a penalty attached to such mistakes : — Held, that this was a larceny of the letters and money. Reg. V. Wynn, 2 C. & K. 859 ; 1 Den. C. C. 365 ; T. & M. 32 ; 3 Cox, C. C. 269 ; 2 l^Tew Sess. Gas. 414 ; 18 L. J., M. C. 51 ; 13 Jur. 107. Servants who clandestinely took their masters' oats, with intent to give them to their masters' horses, and vrithout any intent to apply them to their own private benefit, were guilty of larceny, even though they were not answerable at all for the condition of the horses. Reg. v. Privett, 2 C. & K. 114 ; 1 Den. C. C. 193 ; S. P., Reg. v. Handley, Car. & M. 547 ; Rex v. Morjit, K. & E. C. C. 307. But now, by 26 & 27 Vict. c. 103, s. 1, servants tailing their masters' corn, pulse, roots, or other food contrary to their orders, for the purpose of giving the same to their master.'/^ horses or other animals, shall not by reason thereof be deemed guilty of felony, but shall be liable to imjtj'ison- inent, or to pay a pecuniary penalty. Offering Croods to Owner for Sale.] — A., the servant of B., a tallow-chandler, clandestinely removed a quantity of fat, the property of B., from an upper room in B.'s warehouse, to a lower room in the same place, and placed it in a pair of scales, and afterwards represented to B. that a butcher named D. had sent the fat to be pur- chased and paid for by B. : — Held, that A. was rightly convicted of larceny. Reg. v. Hall, 2 C. & K. 947 ; T. & M. 47 ; 1 Den. C.'C. 381 ; 3 New Sess. Cas. 407 ; 3 Cox, G. C. 245 ; 18 L. J., M. C. 62 ; 13 Jur. 87. Bemoval of Goods to obtain Honey from. Master.] — In order to constitute larceny, the taking must be with intention to vest the pro- perty in the thief ; and therefore, where servants employed by a glove-maker in finishing gloves, removed a quantity of finished gloves from one part of the master's premises to another, with intent fraudulently to obtain payment for them as for so many gloves finished by them : — Held, that they were not guilty of larceny. Reg. v. Poole, 7 Cox, C. C. 373 ; Dears. & B. C. C. 345 ; 27 L. J., M. C. 53 ; 3 Jur., N. S. 1268. M. had the charge of the prosecutor's ware- house, in which bags were kept ; S. for some years had been in the habit of supplying the prosecutor with bags, which were usually placed outside the warehouse, and shortly after so leav- ing them either S. or his wife called and received payment for them. M. went into his master's warehouse and clandestinely removed twenty- four bags which had been marked by his master, and placed them outside the warehouse, in the place where S. used to deposit the bags before payment for them. Soon afterwards the wife of Digitized by Microsoft® 303 CRIMINAL LAW — Larceny and Receivers. 304 fi. came and claimed payment for these bags, and S. stated that he had placed the bags there. The jury found that the bags had been so re- moved in pursuance of a jjrevious arrangement between the prisoners : — Held, that he was rightly convicted of larceny. Rcq. v. Jfanninr/, Dears, C. C. 21 ; 5 Cox, C. 0. 86 ;'22 L. J., M. C. 21 ; 17 Jur. 28. It is not larceny for miners employed to bring ore to the surface, and paid by the owners ac- cording to the quantity produced, to remove from the heaps of other miner's ore produced by them and add it to their own, in order to increase their wages, the ore still remaining in the pos- session of the owners. Itcss v. Webb, 1 M. C. C. 431. See now 24 & 25 Vict. c. 96, s. 39. A. was supplied with a quantity of pig-iron by B. & Co., his employers, which he was to put into a furnace to be melted, and he was paid according to the weight of the metal which ran out of the furnace and became puddle-bars. A. put the pig-iron into the furnace, and also put in with it an iron axle of B. .S: Co., which was not pig-iron. The value of the axle to B. & Co. was T-f., but the gain to the prisoner by melting it, and thus increasing the quantity of metal which ran from the furnace, was Id. : — Held, that, if the prisoner put. the axle into the furnace with a felonious intent to convert it to a purpose for his own profit, it was larceny. Jieg. V. IticJtards, 1 C. & K. .532. Taking Articles to induce Girl to fetch them.] — Clandestinely taking away articles to induce the owner (a girl) to fetch them, and thereby to give the prisoner an opportunity to solicit her to commit fornication with him, is not felonious. Hex V. Dichenson, E. & B. C. C. 420. Assertion of Bight.] — Upon an indictment for larceny, it appeared that the prisoner had been intrusted by the wife of the prosecutor to repair an umbrella. After the repairs were finished and it had been returned to the wife, a dispute arose as to the bargain made. The prisoner thereupon carried away the umbrella as a security for the amount alleged by htm to be due for repairing it :— Held, that if the juiy was of opinion that the taking by the prisoner was an honest assertion of his right, they were to find him not guilty, but if it was only a colourable pretence to obtain possession, then to convict him. Heg. v. Wade, 11 Cox, C. C. 549. Ko Knowledge that Goods hired.]— The pri- soner's wife hired a bedstead at Is. per week, and within a fortnight afterwards the prisoner sold it to a broker, his wife being present at the sale. Two days after the sale the wife paid Is. for a week's hire, being all that was paid. There was no evidence that the prisoner knew that the bed- stead had only been hired :— Held, that a convic- tion for larceny could not be sustained. Reg. v. nalford, 11 Cox, C. C. 88 ; 18 L. T. 334 ; 16 w. ia. 731. To defeat Execution.]— A judgment debtor's goods having been seized under warrants of execution of a county court, and being m the possession of the bailiff, the debtor, with intent to deprive the bailiff, as he supposed of his authority, and so defeat the execution, forcibly took the warrants from him :— Held, that he was not guilty of larceny. I),efi. v. Bailey, 1 L. R., C. C. 347 ; 41 L. J., M. C. 61 : 25 L. T. 882 : 20 W. R. 301 ; 12 Cox, C. C. 129. Taking Horse in order to convey stolen Pro- perty.] — If a person stealing other property takes a horse, not with the intent to steal it, but only to get off more conveniently with the other property which he has stolen, such taking of the horse is not a felony. Rex v, Ci'wmp, 1 C. & P. 658. Question must be left to Jury.]— Money was given to the prisoner for the purpose of paying turnpike tolls at two gates on his journey. Twelve days afterwards, on being asked if he had paid the toll at one of the gates, the prisoner said he had not — ^that he had gone by the parish road which only crossed the road at the gate, and so no toll was payable there, and that he had spent the money on beer for himself and his mates. The prisoner having been con- victed of larceny of the money, but on a case reserved as to whether the facts proved a larceny : — Held, without deciding whether upon such facts a conviction for larceny could be sustained, that as it did not appear that the proper question had been left to the jury the conviction must be quashed. Reg. v. Deerinq, 11 Cox, C. C. 298 ; 20 L. T. 680 ; 17 W. R. 807. b. The Taking-. What Sufficient.] — If a thief goes to an inn, and, intending to steal a horse, directs the ostler to bring out his horse, pointing to that of the prosecutor, and the ostler, at his desire, leads out the horse for the prisoner to mount : this is a sufficient taking by the prisoner to support an indictment for horse-stealing. Dee v. Pitman, 2 C. & P. 423. A Man cannot take his own Goods.] — The prisoner assigned his goods to trustees for the benefit of his creditors ; but before the trustees had taken possession, and while the prisoner re- mained in possession of them, he removed the goods, intending to deprive his creditors of them. The jury found that the goods were not in his custody as agent of the trustees :— Held, that he was not giSty of larceny. Reg. v. Pratt, Dears, C. C. 360 ; 2 C. L. R. 774 ; 6 Cox, C. C. 373 ; 18 Jur. 539. Except from Bailee.] — If a man steals his own goods from his own bailee, though he has no intent to charge the bailee, but Ms intent is to defi'aud the king, yet if the bailee had an interest in the possession, and could have withheld it from the owner, the taking is a larceny. Rex v. WilUmon, E. & K. C. C. 470. Wife cannot Steal Husband's Goods.]— Steal- ing by the wife of a member of a friendly society, money of the society, deposited ma box in the husband's custody, kept locked by the stewards, is not larceny. Rsx v. llvi/i-s 1 M. (j. C 375 A wife, though she may have committed adulteiT, cannot steal her husband's goods. Reg 2 Q. B. D. 307; 46 L. J., M'„C!.J56 ; Digitized by Microsoft® 46 36 L. T. 36 ; 25 W. R. 679 ; 13 Cox, C. C. 397. But where a maiTied woman, at the request ot A., took charge of his box containing money, and 305 CEIMINAL LAW — Larceny and Receivers. 305 afterwards fraudulently stole the money, the husband having nothing to do with any part of the matter : — Held, that she was guilty of larceny. Reg. y. Robson, L. & C. 93 ; 9 Cox, C. C. 29 ; 31 L. J., M. C. 22 ; 8 Jur., N. S. 64 ; 5 L. T. 402 ; 10 W. E. 61. See also oases, pvst, col. 321. Part-owner of Property.] — If a part-owner of property steals it from A., in whose sole custody it is, and who is solely responsible for its safety, he is guilty of larceny, and the property is well laid in A. alone, although he is also a part-owner of the property stolen. Reff. t. Webster, L. & C. 77 ; 9 Cox, C. C. 13 ; 31 L. J., M. C. 17 ; 7 Jur., N. S. 1208 ; 5 L. T. 327 ; 10 W. R. 20 ; S. P., Rex V. Bramley, E. & E. C. C. 478. Where a friendly society had appointed n treasurer and two trustees, one of the trustees was held guilty of larceny in stealing the money of the society. Beg. v. Cain, 2 M. C. C. 204 ; Car. & M. 309. Shareholder but not Part-owner.] — A. was convicted on a count which charged him with stealing a piece of paper, the property of G. and others, his masters. G. and others were directors of an unincorporated insurance com- pany, managed its affairs, appointed, paid, con- trolled and dismissed the clerks and other ser- vants, and had the charge and custody of all the books and papera of the company. The company had a drawing account with G. & Co., and used to send their pass books in every week to be written up, and their messenger went on the following morning to bring it back, when it was returned, together with the cheques, &c. of the preceding week. A. was a salaried clerk in the office of the company, and also a shareholder ; it was his duty to receive the pass book and vouchers from the messenger, and to preserve the vouchers for the use of the company. G. & Co. delivered the pass book, containing among other things a cashed cheque for,l,400?., to the mes- senger of the company, who delivered the book and cheque to A. in the usual way, and he ■there- upon fraudulently destroyed it :— Held, that the cheque was the property of the directors, and that A., though a shareholder in the company, had not a joint property in it, and was properly convicted of larceny. Reg. v. Watts, 2 Den. C C. 14 ; T. & M. 342 ; 4 Cox, C. C. 336 : 19 L. J., M. C. 193 ; 14 Jur. 870. Thief let into House by Servant.]— A servant let a person into his master's house on a Saturday afternoon, and concealed him there all night, in order that he might rob the house, and on Sunday morning left the premises. In pursuance of the previous arrangement, the man, in the servant's absence, broke into the bedroom of the master, and stole the contents of his cash-box : — ^Held, that the man who took the property from the cash-box was rightly charged as a thief. Req v Tucliwell, Car. & M. 21.5. lost Property— Whether Owner known.]— A servant indicted for stealing bank notes, the pro- perty of her master, in his dwelling-house, setup, as her defence, that she found them in the pas- sage, and not knowing to whom they belonged, kept them to see if they were advertized : — Held, she ought to have inquired of her master whether ihey were his or not ; and that not having done so, but having taken them away from the house, she was guilty of stealing them. Reg. v. Kerj\ 8 C. & P. 176. If a bureau is delivered to a carpenter to re- pair, and he discovers money in a secret drawer of it, which he unnecessarily as to its repairs- breaks open, and converts the money to his own use, it is a felonious taking of the property, un- less it appears that he did it with intention to restore it to its right owner. Cartwriglit v. Green, 2 Leach, C. 0. 952 ; 8 Ves. 405. If a parcel is accidentally left in a hackney- coach, and the coachman, instead of restoring itto- the owner, detains it, opens it, destroys part of its contents, and borrows money on the rest, he is guilty of felony. Resc v. Wynne, 1 Leach, C. C. 413 ; 2 East, P. C. 664, 697 ; 8. P., Rex v. Sears,. 1 Leach, C. C. 415, n. A person purchased, at a public auction, a bureau in which he afterwards discovered, in a secret drawer, a purse containing money, which he appropriated to his own use. At the time of the sale no person knew that the bureau con- tained lanything whatever : — ^Held, that if the buyer had express notice that the bureau alone, and not its contents, if any, was sold to him ; or if he had no reason to believe that anything more- than the bureau itself was sold, the abstraction of the money was a felonious taking, and he was. guilty of larceny in appropriating it to his own use. But that if he had reasonable ground for believing that he bought the bureau with its con- tents, if any, he had a colourable property, and it was no larceny. Merry v. Green, 7 M, & W. 623 ; 10 L. J., M. C. 154. Question is whether at time of taking. Prisoner knew Owner could be Found.] — Where a bank note was lost, and was found by a person who appropriated it to his own use : — Held, that the jury is not to be directed to consider at what time the prisoner, after taking it into his posses- sion, resolved to appropriate it to his own use, but whether at the time he took possession of it he knew, or had the means of knowing, who the owner was, and took possession of it with intent to steal it ; for if his original possession of it was an innocent one, no subsequent change of his mind, or resolution to appropriate it to his own use, would amount to larceny. Reg. v. Preston, 2 Den. C. C. 353 ; T. & M. 641 ; 5 Cox, C. C. 390 : 21 L. J., M. C. 41 ; 16 Jur. 109. A. found a watch, and subsequently converted it to his own use ; the jury found him "not guilty of stealing the watch, but guilty of keep- ing possession of it, in the hope of reward, from the time he first had the watch." A verdict of guilty was entered at the trial : — Held, wrong, and that on these facts and this finding it was no larceny. Reg. v. Yorlte, 2 C. & K. 841 : 1 Den. C. C. 835 ; T. & M. 20 ; 3 Cox, C. C. 181 : 18 L. J., M. C. 38 ; 12 Jur. 1078. The finder of a lost sovereign in the high road who, at the time of the finding, had no reasonable means of knowing who the ovmer was, but who at that time intended to appropriate it even if the owner should afterwards become known, and to whom the next day the owner was made known, when he refused to give it up, is not guilty of larceny. Reg. v. Glyde, 1 L. R., C. C. 139 ; 37 L. J., M. C. 107 ; 18 L. T. 613 ; 16 W. E. 1174 • 11 Cox, C. C. 103. The prisoner's child found six sovereigns in the street, which she brought to the prisoner. Digitized by Microsoft® 307 CEIMINAL LAW— Larceny and Receivers. The latter cpimted it, and told some bystanders that the child had found a sovereign, and offered to treat them. The prisoner and the child then f ™t "^^ ^^^ ^'■^^^* to the place where the child had found the money, and found a half-sovereign and a bag. Two hours afterwards the owner made hue-and-cry in the vicinity. On the same evening the prisoner was told that a woman had lost money ; the prisoner told her informant to mind her own business, and gave her half-a- sovereign for herself. The prisoner admitted, on arrest, that she had got the money from the child :— Held, that these facts did not warrant a conviction for larceny, as there was nothing to shew that at the time of the finding the prisoner had reason to think that the owner could be found. Reg. v. Deai-es, 11 Cox, C. C. 227 • 3 Ir. R., C. L. 306. If a man finds goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny. Beg. v. TlmrUrii, 1 Den. C. C. 387 ; T. & M. 67 : 2 C. & K. 831 ; 18 L. J., M. C. 140 ; 13 Jui'. 499; S. C, Reg. V. Wood, 3 Kew Sess. Cas. 581 ; 3 Cox, C. C. 453. But if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. Tb. A. picked up the purse of B., which contained money, on a turnpike road, along which B. had previously travelled by coach. A. converted the puree and its contents to his own use : — Held, no larceny ; and that A. was liable civilly, but not criminally. Reg. v. Mole, 1 C. & K. 417. If there had been any mark on the purse by which the owner could have been known it would have been otherwise. Ih. A purse containing money was left by a pur- chaser on the prisoner's stall. A third person afterwards pointed out the purse to the prisoner, supposing it to be here. She put it in her pocket and afterwards concealed it, and on the return of the owner denied all knowledge of it. The jury found that the prisoner took up the puise knowing it was not her own, and intending at the time to appropriate it to her own use, but that she did not know who was the owner at the time she took it : — Held, that as the puree was not lost property, the prisoner was properly convicted of larceny. Beg. v. West, Deare. C. C. 402 ; 6 Cox, C. C. 415 ; 3 C. L. E. 86 ; 24 L. J., M. C. 4 ; 18 Jur. 1030. A finder of lost property is not guilty of larceny in a,ppropriating it to his own use, unless he has a felonious intent at the time of the finding. Reg. V. Christoplier, Bell, C. C. 27 ; 8 Cox, C. C. 91 ; 28 L. J., M. C. 35 ; 5 Jur., N. S. 24 ; 32 L. T,, 0. S. 150 ; 7 W. E. 60. A. was indicted for stealing a bank note. The prosecutor had paid for an article purchased at A.'s shop, out of a purse in which were two bank notes. Next morning he discovered the loss of one of the notes, and applied to A., who told him he knew nothing of the note. He, however, after- wards stated he had given gold for it on the day of the loss. The jury, in answer to questions put to them, found — first, that the note was dropped by the prosecutor in the shop, and that A. found it there ; secondly, that he at the time he picked up the note did not know, nor had he reasonable 308 means of knowing, who the owner was ; thirdly, that he afterwards acquired knowledge of who the owner was, and after that he converted the note to his own use ; fourthly, that he intended, when he picked up the note in the shop, to take it to his own use, and deprive the owner of it, whoever that owner might be ; and, fifthly, that he believed, at the time he picked up the note, that the owner could be found. A verdict of guilty was thereupon entered :— Held, that he was properly convicted. Reg. v. Moore, L. & C I ; 8 Cox, C. C. 416 ; 30 L. J., M. C. 77 ; 7 Jur., N. S. 172 ; 9 W. E. 276. If a person drops any chattel, and another finds it, and takes it away with the intention of appro- ■ priating it to his own use, and only restores it because a reward is offered, he is guilty of larceny Beg. V. Peters, 1 C. & K. 245. S. P., Ben. v. Beed, Car. & M. 306. Abandonment by Owner.]— The only cases in which a party finding a chattel of another can be justified in appropriating it to his own use, is where the owner cannot be found, or where it may be fairly said that the owner has abandoned it. li. The Fact that Prisoner might have dis- covered Owner makes no difference.] — When it appears that the goods alleged to have been stolen were found by the prisoner, he cannot be convicted of larceny unless there is some evidence that at the time of the finding he believed that the true owner could be ascertained, and it is not enough that the juiy is satisfied that he could within a reasonable time have discovered the owner. Reg. v. Knight, 12 Cox, C. C. 102 ; 25 L. T. 508 ; 20 W. E. 122. If a man finds lost property and keeps it, and at the time of finding it has no means of dis- covering the owner, he is not guilty of larceny, because he afterwards has means of finding him, and nevertheless retains the property to his own use. Reg. v. Dixon, Dears. C. C. 580 ; 7 Cox, C. C. 35 ; 25 L. J., M. C. 39. Semble, if a man finds property which has been lost, and appropriates it to himself, he is not guilty of larceny for failing to take steps to discover the owner, unless he saw the article drop from the owner, or unless it has the owner's name upon it, or some circumstances of the sort occurred which afforded the finder an imme- diate means of knowing who the owner was at the moment when he picked it up and examined it. n. Cheque Pound — Possession by Another. ] — A prosecutor found a cheque, and, being unable to read, shewed it to the prisoner. The prisoner told him that it was only an old cheque of the Eoyal British Bank, and kept it. He afterwards made excuses for not giving it up to the prosecutor, withholding it from him in the hopes of getting the reward that might be offered for it :— Held, that these facts did not shew such a taking as was necessary to constitute larceny. Beg. v. Gardner, L. & C. 243 ; 9 Cox, C. C. 253 ; 32 L. J., M. C. 35 ; 8 Jur., N. S. 1217 ; 7 L. T. 471 ; II W. E. 96. Property Found in Railway Carriage.] — The law with regard to the finder of lost pro- perty does not apply to the case of property of a passenger accidentally left in a railway carriage, Digitized by Microsoft® CRIMINAL IjAW—Larcemj and Receivers. 309 and found there l)y a servant of the company ; and such servant is guilty of larceny, if, instead of taking it to the station or superior officer, he appropriates it to his own use. lirg. v. Pierce, 6 Cox, C. C. 117. IS. Where Delivery by Owner passes Pos- session and Big'ht of Property. Taking away Goods without Paying for them.] — If a horse is purchased by and delivered to the buyer, it is not felony though he immediately rides away with it without paying the purchase- money. Rex V. Harvey, 1 Leach, C. C. 467 ; 2 Bast, P. C. 669. Where the prisoner obtained possession of a hat from the maker, which had been ordered by ■ a third person, by sending a boy for it in the name of such third person : — ^^Held,' it did not amount to larceny. Iteac v. Adams, E. & B. C. C. 225. Taking Goods by means of Forgery.] — ^A. went to B.'e shop, and said that he had come from C. for some hams, and at the same time produced a note in the following terms : — " Have the good- ness to give the bearer ten good thick sides of bacon, and four good showy hams, at the lowest price. I shall be in town on Thursday next, and will call and ])ay you. Tours, &c., C." B. thereupon delivered the hams to A. The note was forged, and A. had no such authority from C. : — Held, that A. was not guilty of larceny. Beg. V. Adams, 1 Den. C. C. 38. Fossession obtained by a Trick.] — Where, in a case of ring-dropping, the prisoners prevailed on the prosecutor to buy the share of the other party, and the prosecutor was prevailed on to part with his money, intending to part with it for ever, and not with the possession of it only : — Held, that this was not a larceny. Reg. v. Willson, 8 C. & P. 111. A. was treating B. at a beer-house, and A. wishing to pay, put down a, sovereign, desiring the landlady to give him change ; she could not do so ; and B. said that he would go out and get change. A. said, "You won't come back with the change." B. replied, " Never fear." A. allowed B. to take up the sovereign, and B. never returned either with it or the change : — Held, no larceny, as A. having permitted the sovereign to be taken away for the puipose of being changed, he could never have expected to receive back the specific coin, and had therefore divested himself of the entire possession of it. Reg. V. Thomas, 9 C. & P. 741. W, sold and delivered a horse to G., and by way of payment took two pigs of Gr. of about the same value, no money passing. W. then borrowed the horse from G. to run against C, who won the race, and claimed and took away, the horse that W. rode : — Held, no evidence of any larceny of the horeo by C. or W. Reg. v. Carter, 47 J. P. 759. If a person is induced to play at hiding under the hat, and stakes down his money voluntarily on the event, meaning to receive the stake if he wins, and to pay it if he loses, the taking up the stake so deposited by him on the table is not a felonious taking, although the taker was made to appear to win the money by fraudulent conspiracy and collusion. Rex v. Jficholson, 2 Leach, C. C. 610 ; 2 East, P. C. 669. 310 Where a servant by a false pretence induces his master to give him a cheque as agent ot a creditor of his master with the view of its being handed over to that creditor, and the servant appropriates the cheque to his own use, he cannot be indicted for stealing it. Reg. v. Essex, Dears. & B. C. C. 371 ; 7 Cox, C. C. 384 ; 27 L. J.-, M. C. 20 ; 4 Jur., N. S. 16. The prisoner was a servant in the employment of grocers who were in the habit of purchasing kitchen-stuff. It was his duty to receive and weigh it, and, if the chief clerk was in the counting-house, to give the seller a ticket specify- ing the weight and price of the article, and the name of the seller, which ticket was signed with the initials of the prisoner. The seller, on taking this ticket to the chief clerk, received the price of the kitchen-stuff. In the absence of the chief clerk the prisoner had himself authority to pay the seller, and afterwards, on producing the ticket to the chief clerk, was repaid. The prisoner had, on the day mentioned in the indict- ment, presented a ticket to the chief clerk, purporting to contain all the usual specifications, and marked with the prisoner's initials, and demanded the sum of 2s. Sd., which he alleged that he had paid for kitchen-stuff. He received the money and appropriated it to his own use, and it was afterwards discovered that no such person as was described in the ticket had ever sold any such article to the prosecutoi-s, but that the ticket was fraudulently made out and pre- sented by the prisoner :— Held, a case of false pretences, and that an indictment for larceny could not be sustained. Reg. v. Barnes, 2 Den. C. C. 59 ; T. & M. 387 ; 20 L. J., M. C. 34 ; 14 Jur. 1123. , G. was indicted for larceny. The evidence shewed that he was the prosecutor's servant ; that it was his duty to receive and pay moneys for the prosecutor, and make entries of such receipts and payments in a book which was examined by the prosecutor from time to time ; that the prisoner on one occasion shewed a balance in his favour of 21., by taking credit for payments falsely entered in the book as having been made by him, when in fact they had not been made by him, and that the prisoner received from his master the sum of 21. as a balance due to him. He was convicted : — Held, that the conviction was wrong. Beg. v. Oree^v, Dears. C. C. 323 ; 2 C. L. E. 603 ; 6 Cox, C. C. 296 ; 18 Jur. 158. It was the duty of a clerk to the prosecutore to ascertain daily the amount of dock and town dues payable by the prosecutors on the exporta- tion of their goods, and, having received the money from the prosecutors' cash-keeper, to pay it over to those who were entitled to it ; the clerk falsely represented that a sum of Zl. 10«. id. was due on a certain day, whereas, in truth, a sum of \l. 3«. only was due, and, having obtained the larger sum from the cash-keeper, converted the difference to his own use : — Held, that he was not guUty of larceny, but might have been convicted of obtaining money by false pretences. Rfg. V. Thompson, L. & C. 233 ; 9 Cox, C. C. 222 ; 32 L. J., M. C. 57 ; 8 Jur., N. S. 1162 ; 7 L. T. 393 ; 11 W. R. 41. The prisoner was employed by the prosecutor to make up canvas bags at his (the prisoner's) own house. The canvas was cut out at the shop of the prosecutor and taken away by the prisoner, A portion of it was duly w^orked up Digitized by Microsoft® 311 CRIMINAL JjA.W— Larceny and Receivers. and returned, the remainder was converted by him to his own use :— Held, that he could not be convicted of larceny. 1kg. v, Saward, 5 Cox, C. C. 295. J n . > B., a, broker, having large dealings with the prosecutoi-s, Russian merchants, in October entered into a contract for the purchase of 343 casks of tallow which were expected to arrive by the Hesper, in the ordinary coui-se of trade. The tallow arrived accordingly on the 5th of Decem- ber, and in due course the transaction should have been completed within fourteen days, and notice was given to B. of the arrival of the tallow, and he was called upon to complete the bargain. He requested that the tallow might be allowed to remain in the docks for a short time. This was granted. On January 28th the manager for the prosecutors called on him, and insisted on the completion of the contract, and B. said he would pay for the tallow on the following (lay. On the next day B. sent his clerk to the prosecutoi-s' counting-house, and obtained de- livery orders for the tallow, and tendered to the prosecutors a crossed cheque on a banic of Lon- don for the price of the tallow. Immediately on obtaining possession of the delivery orders, he sent them to the docks, and transferred the pro- perty into fi-esh Avarrants, and when the cheque was presented there were no assets : — Held, not to be a larceny of the delivery orders by a trick, but a lawful possession of them obtained by reason of the prosecutors giving to B. credit in respect of the crossed cheque. Meff. v. A'ortU, 8 Cox, C. C. ii. Possession obtained by Delivery of Bills.] — If a tradesman "sells a stranger goods, enters them to his debit, and makes out a bill of parcels for them as goods sold, and the goods are delivered to the purchaser by the servant of the seller, who receives bills for them, it is not felony, although the tradesman sold them for ready money, never intending to give the stranger credit, and it appeal's that he had taken the apartments to which he ordered them to be sent for the purpose of obtaining them fraudu- lently. Bex V. Parlies, 2 Leach, C. C. 614 ; 2 East, P. C. 671. Authority of Servant to act in coarse of Business.] — Where a prLsoner took a packet of diamonds to a pawnbroker, with whom he had previously pledged a brooch ; and having agreed with the shopman for the amount of the loan on the diamonds, sealed them up and received the amount, deducting the amount for which the brooch was pledged ; but, instead of giving the packet of diamonds to the shopman, gave him a packet of similar appearance, containing only glass : — Held, that it was not larceny, but only a fraud. Ite,v v. Mcilkcim, Car. C. L. 281. If a pawnbroker's servant, who has a general authority from his master to act in his business, delivers up a pledge to the pawner, on receiving a parcel from the pawner, which he supposes contains valuables he has just seen in the pawner's possession in a, similar parcel, the receipt of the pledges by the pawner is not a larceny. Re^ v. Jachson, 1 M. C. C. 119. To constitute larceny, there must be a taking of the property against the will of the owner, But the cashier of a bank has authority, arising from the nature of his employment, to pay the money of the bank to persons presenting genuine 312 orders, and to judge of their genuineness, Reg. v. Prime, i L. R., C. C. 150 ; 38 L. J., M. C. 8 ; 19 L. T. 364 ; 17 W. R. 179 ; 11 Cox, C. C. 193. Therefore, a cashier, who, deceived by a forged order, purporting to be drawn by a customer, pays money to the payee, who presents it Imow- ing it to be forged, thereby parts with the property in the money of the bank to the payee so as to bind his employer, and the payee is therefore not guilty of larceny, but of obtain- ing money by false pretences. Ih. A depositor in a post otfiee savings bank obtained a warrant for the withdrawal of 10*., and presented it with his depositor's book to a clerk at the post oiRce, who instead of referring to the proper letter of advice for 10s., referred by mistake to another letter of advice for %l. 16«. lOd., and placed that sum upon the counter. The clerl:- entered U. 16s. Wd. in the depositor's book as paid, and stamped it. The depositor took that sum and went away. The jury found that he had the animus furandi at the moment of taking the money from the counter, and that he knew the money to be the money of the Postmaster-General when he took it up, and found him guilty of larceny : — Held, by a majority of judges, that he was properly convicted of larceny. Reg. v. Middlston, 2 L. K, C. C. 38 ; 42 L. J., M. C. 73 ; 28 L. T. 777 ; 12 Cox, C. 0. 260, 417. By Coekburn, C. J., Blackburn, J., Mellor, J., Lush, J., Grove, J., Denman, J., and Archibald, J., on the ground that, even assuming the clerk to have the same authority to part with the possession of and property in the money which the Postmaster-General would have had, the mere delivery under a mistake, though with the intention of passing the property, did not pass the property ; and the possession being obtained animo furandi, there was both a taking and a stealing within the definition of larceny. Ih. By Bovill, C. J., Kelly, C. B., and Keating, J., that the clerk, having only a limited authority under the letter of advice, had no power to part with the property in the money to the prisoner, and that therefore the conviction was right. /*. By Pigott, B., that, before possession of the money was parted with, and whilst it was on the counter, the prisoner had the animus furandi, and took it up, and was therefore guilty of larceny. II. But by Martin, B., Bramwell, B., Brett, J., and Cleasby, B., that the money was not taken invito domino, and, therefore, that there was no larceny. II. Per Bramwell B., and Brett, J., that the authority of the clerk authorized the parting with the possession and property in the entire sum laid down on the counter. Ih. d. Where Possession obtained animo furandi. Felonious Intention at time Goods obtained.] / — To constitute larceny, the felonious intention | must exist in the mind at the time the property*, is obtained ; for if it is obtained by fair contract _ and afterwards fraudulently converted it is no - felony. Rex v. Oharlcwood, 1 Leach, C. C. 409 ; 2 East, P. C. 689. ^^ .^ ^ A suri'eyor of highways, havmg authority to order gravel for roads, ordering gravel as usual and applying it to his own use is not guilty of Digitized by Microsoft® 313 CRIMINAL LAW — Larceny and Receivers. 314 larceny, unless it appears that he did not mean to pay for it. Biig. v. Richardson, 1 F. & F. 488. The prisoner went into a shop in London, and purchased jewellery, and said that he would pay in cash, and the seller agreed to deliver the goods at a coach-ofiice belonging to an inn, where the prisoner stated that he lodged. The seller made out an invoice and took the goods there, when the prisoner said he had been disappointed in receiving some money he ex- pected by letter. Just afterwards a twopenny post letter was put into his hands, which he opened in the preseflce of the seller, and said he had to meet a friend at Tom's Coffee-house at seven, who would supply the money. The goods were left at the coach-office, and the seller went home. The prisoner had taken a place in the mail, but he countermanded that, and absooiided with the goods. The seller Swore that he con- sidered the goods sold if he got his cash, but not before. It was left to the jury to say whether the prisoner had any intention of buying and paying for the goods, or whether he gave the order merely to get possession of them to convert them to his own use. The jury found the latter, and the prisoner was convicted, and the conviction was held right by the judges. Rex V. Campidl, Car. C. L. 280 ; 1 M. C. C. 179. A. and B., pretending that one of them was a sea captain and a Frenchman unable to speak English, offered to the prosecutrix a dress for sale at 25«., saying that if she would give that price for it, she would have another dress, which was Ijroduoed, worth 12s., into the bargain. She agreed to this, and took a sovereign and a shilling from her pocket. While she was holding the money, A. or B. opened her hand and took it out, though not forcibly. He then declined to take the other is., but laid down the dress first produced, and refused to let her have the other. The dress proved to be of little value : — Held, that they were properly convicted of larceny. Reg. v. Morgan, Dears. C. C. 395 ; 6 Cox, C. C. 408 ; 18 Jur. 108.5. The prosecutor sold onions to the prisoners, who agreed to pay ready money for them. The onions were unloaded at a place indicated by the prisoners, and the prosecutor was then induced to make out and sign a receipt which they got from him, and then refused to restore the onions or pay the price. The jury convicted them of larceny, and said that they never intended to pay for the onions, and that the fraud was medi- tated by them from the beginning :— Held, that the conviction was right. Reg. v. Slowly, 12 Cox, C. C. 269 ; 27 L. T. 803. Obtaining a horse under the pretext of hiring it for a day, and immediately selling it, is felony, if the jury finds the hiring was animo furandi. Rex v. Pear, 1 Leach, C. C. 212 ; 2 East, P. C. 685, 697. And see Rex v. Tumiard. 2 East, P. C. 687 ;^1 Leach, C. C. 214, n. A. hiring a horse and riding it away from a livery-stable, and afterwards selling it, cannot be convicted of larceny unless he had the intention of stealing the horse when he originally hired it, and that is a question for the jury. Reg. v. Cole, 3 Cox, C. C. 340. Obtaining a post-chaise by hiring, with a felo- nious intent to convert it to the use of the hirer, is felony, although the contract of hiring was not for any definite time. Re.c v. Semjjle, 1 Leach, C. 0, 420 ; 2 East, P. 0. 691. If goods are delivered to"a person on hire, and he taiies them away, animo furandi, he is guilty of larceny, although no actual conversion of them by sale or otherwise is proved. Reg. v. Janson, 4 Cox, C. C. 82. A. hired a horse and gig with the felonious intention of converting them to his own use, and afterwards offered them for sale, but no sale took place : — Held, nevertheless, that he was guilty of larceny. li. To constitute a larceny by a party to whom goods have been delivered on hire, there must not only be an original intention to convert them to his own use, but a subsequent actual conversion ; and a mere agreement by the hirer to accept a sum offered for thegoods is not such a conversion, if the party who makes the offer does not intend to purchase unless his suspicions, as to the honesty and right of the vendor to sell, are removed. Reg. v. Brooks, 8 C. & P. 295. A landlord went to his tenant (who had re- moved all his goods) to demand rent amounting to V2l. 10s., taking with him a receipt ready written and signed ; the tenant gave 21., and asked to look at the receipt. It was given to him, and he refused to return it or to pay the remainder of the rent. It was proved by the landlord, that, at the time he gave to the tenant the receipt, he thought the tenant was going to pay him the rent ; and that he should not have parted with the receipt unless he had been paid all the rent ; but that when he put the receipt into the tenant's hand he never expected to have the receipt again ; and that he did not want the receipt again, but wanted his rent to be paid : — Held, a larceny ; and that the fact of the tenant giving the 21. made no difference. Rfg. v. Rod- way, 9 C. & P. 784. Where a prisoner having offered to accommo- date the prosecutor with gold for notes, the latter put down a number of baiili notes for the purpose of their being exchanged, which the prisoner took up and ran away with : — Held, a larceny, if the jury believed that he intended to run away with them at the time, and not to return the gold. Rex V. Oliver, 2 Russ. C. & M. 122 ; 4 Taunt. 274. To obtain a bill of exchange from an indorsee, under a pretence of getting it discounted, is felony, if the jury finds that the indorsee did not intend to leave the bill in the prisoner's possession without the money, and that he undertook to discount it with a preconcerted design to convert its produce to his own use. Rex v. AicUes, 1 Leach, C. C. 294 ; 2 East, P. C. 675. Where a person went into a sliop for the pur- pose of purchasing a ruby pin, and after select- ing one, which was put into a box, while the young man who was serving him was absent for about a minute, took it out of the box, and put it into his stock, and aftei-wards went into the sha,wl department of the shop to purchase other articles, saying that he would return and pay for both together, but was allowed to go away with- out inquiry being made as to whether he had paid in the shawl department, and a bill, in- cluding the price of the pin, was sent the iiext day to the house where he was residing : — Held, on the trial of the prisoner for stealing the pin, that, under these circumstances, it was for the jury to say whether there was any intention to steal the pin, and whether there was or was not credit given for it. Reg. v. Box, 9 C. & P. 126. A., bargaining with B. about some waistcoats, Digitized by Microsoft® 315 CRIMINAL LAW — Lcurceny and Receivers. 316 ^aid, "You must go to the lowest price, as it will be ready money." B. said, " Then you shall have them for 12s.," to which A. assented. A. then said he should put the waistcoats into his gig, which was then standing at the door. B. replied, ■" Very well." A. drove off with the waistcoats without paying for them, and absconded for two years. The jury returned the foUovring verdict : — "In oiu' opinion the waistcoats were parted with conditionally that the money was to be paid at the time, and that A. took them with a ielonious intent : " — Held, a larceny in A. Reg. V. Colien, 2 Den. C. C. 249. Getting goods delivered into a hired cart, on the express condition that the price will be paid for them before they are taken from the cart, and then getting them from the cart without paying the price, will be larceny, if the prisoner never had any intention of paying, but had, ab initio, the intention to defraud. Rex v. Pratt, 1 M. C. C. 250. Taking goods though the prisoner has bar- gained to buy, is felonious, if by the usage the price ought to be paid before they are taken, and the owner did not consent to their being taken, and the prisoner when he bargained for them did not intend to pay for them, but meant to get them into his possession, and dispose of them for his own benefit without paying for them. Rex v. Gilbert, 1 M. C. C. 183. A gipsy, obtaining money and goods under pretence of practising witchcraft, without an in- tention to return them, is properly indicted for larceny. Reg. v. Bunce, 1 F. & F. 523. Qnestion for Jury.] — A., carrying on business on his own account, entered into an engagement with B. to sell goods for him, and for certain purposes to be his servant. B. entrusted A. with certain goods to dispose of in a particular way. A. converted them to his own use : — Held, that it was a question for the jury to say whether, when A. received the goods, he had the intention of misappropriating them. Reg. v. Waller, 10 Cox, C. C. 360 ; 8. P., Reg. i. Cole, 3 Cox, C. C. 340. To obtain property by fraud, and under a pre- concerted plan to rob, is felony, but the animus furandi must be found by the jury. Rex v. Horwr, I Leach, C. C. 270 ; 8. P., Reg. v. Box, 9 C. & P. 126. Evidence of Tortious Conversion.] — Non- delivery upon request is evidence of a tortious conversion. Rex v. Semj/le, 1 Leach, C. C. 424 ; 2 Bast, P. C. 691. Possession obtained from Servant without Authority.]— Wheat, not the property of the prosecutor, but which had been consigned to him, was placed in one of his storehouses, under the care of a servant, E., who was to deliver it only to the orders of the prosecutor, or his managmg clerk. A., who was in the employ of the prose- cutor, obtained the key of the storehouse from E., and was allowed to remove a quantity of the wheat, upon his representation to E. that he had been sent by the clerk, and was to take the wheat to a raUway station. This representation was false, and he subsequently disposed of the wheat : —Held, that he was guilty of a larceny of the wheat. Reg. v. Robim, Dears. C. C. 418 ; 6 Cox, C. C. 420 ; 18 Jur. 1058. To obtain goods by false pretences from the servant of the owner, to whom they were delivered for the purpose of being carried to a customer, who had purchased them, is a taking from the possession of the master ; and if so taken, with a preconcerted design to steal them, amounts to felony. Rex v. IVilhins, 1 Leach, C. C. 520 ; 2 East, P. C. 673. Where a man pretended to be the servant of a person who had bought a chest of tea deposited at the company's warehouse, got a request paper and permit for the chest, and took it away with the assent of a person in the East India Company's service, who had the charge of it : — Held, to be felony. Rex v. ITeiwh, K. & K. C. C. 163. S., bailee of P.'s mare, took her to certain livery- stables, and paid P. a balance due to him, after deducting money due for the keep of the mare, and told P. that she was at the livery-stables. P. sent word to the stable-keeper not to let S. have the mare again, and twice refused S. permission to ride the mare. S., after P. had left the town, obtained the mare from the ostler at the livery- stables by a false statement, and never returned her: — Held, that 8. was rightly convicted of larceny. Reg. v. Stear, 2 C. & K. 988 ; 1 Den. C. C. 349 ; T. & M. 11 ; 18 L. J., M. C. 30 ; 13 Jur. 41. A carman having orders to deliver goods to a certain person, in mistake delivered them to an- other person, who appropriated them to his own use : — Held, that he did not part with the pro- perty in the goods by delivering them to a wrong party ; and that the latter, appropriating them to his own use, was guilty of larceny. Reg, v. Little, 10 Cox, C. C. 559. Getting a parcel from a carrier's servant, by falsely pretending to be the person to whom it is directed, if it is taken animo furandi, is a lar- ceny ; for the servant has no authority to part with it but to the right person. Eex v. Zong- streeth, 1 M. C. C. 137. On the trial of an indictment for larceny it appeared that the prisoner having given the prosecutor an order for certain goods, they were sent by a seiTant with directions not to part with them without the money. On the way the servant was met by the prisoner, who said tha goods were for him and took them, giving two counterfeit half-crowns in payment :— Held, that he was properly indicted for larceny. Reg. v. Webb, 5 Cox, C. C. 154. A., in the hearing of B., told his servant to go to H. and pay him some moiley, upon which B. offered to take the money for A., falsely stating that he lived only six doors from H. Induced by the offer of B., A. delivered the money to him to carry to H. B. appropriated the money to his own use. He was indicted for larceny of the money, and found guilty, the jury stating that their verdict was grounded on their belief that he had obtained the money by a trick, intending at the time to appropriate it to his own use :— Held that the conviction was right. Reg. v. Brown, Dears. C. C. 616 ; 2 Jur., N. S. 192. J owner of a watch, placed it with the seller to be regulated. The seller had no authority to deliver it to any one but J., or some one com- missioned by him to receive it By the fmud of the prisoner the seller was induced to beheve that J. had desired the wateh to be sent by post, inclosed in a letter to J., to the care of the post- master at B. The postmaster, through the fiaud of the prisoner, was induced to deliver the letter contaming the watch to him, believmg him to be Digitized by Microsoft® 317 CEIMINAL LAW — Larceny and Receivers. 318 J. or his agent : — Held, that the prisoner, having appropriated the watch to his own use, was guilty of larceny of it from the owner. Beg. v. Kay, Dears. & B. C. C. 231 ; 7 Cox, C. C. 298 ; 26 L. J., M. C. 119 ; 3 Jur., N. S. 546. By a Trick. J — At a colliery, where coal was sold by retail, it was the practice for the carts, when loaded, to be taken to a weighing machine in the colliery yard, where they were weighed, and the price of the coal paid. B, went to the yard and aslced for a load of soft coal : his cart was accordingly loaded by a servant of the pro- secutor with that description of coal, and he was then left to take it to be weighed, and pay for it. He, however, covered over the top of the coal in the cart with slack (an inferior description of coal), and then went to the weighing machine, and told the clerk he had got slack ; the clerk accordingly weighed the cart, and charged for its contents as slack. B. paid for the coal as slack, and went away with it : — Held, that he was guilty of larceny of the soft coal. Reg. v. BramUy, L. & C. 21 ; 8 Cox, C. C. 468 ; 7 Jur., N. S. 478 ; 4 L. T. 809 ; 9 W. K. 555. Where a prisoner had obtained letters from the post-office by falsely representing that he- was sent for them by the person to whom they were addressed : — Held, that if he then meant to steal them he might be convicted of larceny.. Reg. V. erillingg, 1 P. & F. 36. Ringing the Changes.]— J. and W., acting in concert, and intending to defraud S., entered his shop, and by means of an artifice induced him to draw a cheque on his bankers for 42Z., payable in the name of J., and then to accompany J. to the bank to see it paid, on the understanding that they were to return to finish the transaction by the payment to S. of forty-two sovereigns, and that W. was to remain at the shop till J. and S. went and returned from the bank. At the bank, by the desire of S., the banker handed four ten- pound notes and two sovereigns to J. in the pre- sence of S. S. and J. left the bank together, and while on their way back to S.'s shop, J. went into an inn yard, and, promising to return imme- diately, absconded with the four ten-pound notes and the two sovereigns, which he and W. (who in the meantime had gone off from the shop with the forty-two sovereigns) appropriated to their own use :— Held, that the misappropriation of the notes and two sovereigns was larceny, S. never having parted with the property and pos- session in them, and J. having no more than the bare custody of the money which he had carried off. Beg. V. Johnson, 2 Den. C. C. 310 ; T. & M 612 ; 5 Cox, C. C. 372 ; 21 L. J., M. C. 82 ; 15 Jur. 1113. A. went to a shop, and asked a boy there to give him change for a half-crown ; the boy gave him two shillings and sixpennyworth of copper. The prisoner held out a half-crown, which the boy touched, but never got hold of it, and the prisoner ran away with the two shillings and the copper :— Held, a larceny of the two shillings and the copper. Bex v. WHl/am.9, 6 C. & P. 890. The prisoner with another man went into the shop of the prosecutrix and asked for a penny- worth of sweetmeats, for which he put down a florin. The prosecutrix put it into a money- drawer, and put down a shilling and sixpence in silver and fivepence in copper in change, which the prisoner took up. The other man said, "you need not have changed," and threw down a penny, which the prisoner took up ; and the latter then put down a sixpence in silver and sixpence in copper on the counter, saying, " here, mistress, give me a shilling for this." The prosecutrix took a shilling out of the money-drawer and put it on the counter, when the prisoner said to her, " you may as well give me the two-shilling-piece and take it all." The prosecutrix took from the money-drawer the florin she had received from the prisoner, and put that on the counter, ex- pecting she was to receive two shillings of the prisoner's money in exchange for it. The pri^ soner took up the florin ; and the prosecutrix took up the silver sixpence and the sixpence in copper put down by the prisoner, and also the shilling put down" by herself, and was putting them into the money-di-awer, when she saw she had only got one shilling's-worth of the pri- soner's money ; but at that moment the pri- soner's companion drew away her attention, and, before she could speak, the prisoner pushed his companion by the shoulder, and both went out of the shop : — Held, that the property in the florin had not passed to the prisoner, and that he was rightly convicted of larceny. Beg. v. J/cAale, 1 L. R., C. 0. 125 ; 18 L. T. 335 ; 16 W. E. 800; 11 Cox, C. C. 32.- Possession in Tradesman.] — If a person, having ordered a tradesman to bring goods to his house, looks out a certain quantity, asks the price of them, separates them from the rest, and then, by sending the tradesman home on pretence of want- ing other articles, takes the opportunity of run- ning away with the goods so looked out with intent to steal them, it is larceny; for, as the sale was not completed, the possession of the property still remained in the tradesman. Rex V. liharpless, 1 Leach, C. C. 92 ; 2 East, P. C. 675. Uoney obtained by Threat —Payment against Owner's will.] — A. acted as auctioneer at a mock auction. He knocked down some cloth for 26s. to B., who had not bid for it, as A. knew. B. refused to take the cloth or to pay for it ; A. re- fused to allow her to leave the room unless she paid. Ultimately she paid the 26s. to A., and took the cloth. She paid the 26«. because she was afraid. A. was indicted for, and convicted of, feloniously stealing these 26.?.:— Held, that the conviction was right, because, if the force used to B. made the taking a robbery, larceny was included in that crime ; if the force was not sufficient to constitute a robbeiy, the taking of the money neveitheless amounted to larceny, as B. paid the money to A. against her will, and be- cause she was afraid. Reg. v. McGratk, 1 L. E C. C. 205 ; 37 L. J., M. C. 7 ; 21 L. T. 543 ; 18 W. E. 119; 11 Cox, C. C. 347. Held, also, that, under the circumstances, it was not necessary that the juiy should be asked whether B. paid the money against her will, as from the evidence it was clear that there could have been no doubt in the minds of the jury that the money was so paid. Ih. The prosecutor met a man and walked with him. During the walk the man picked up a purse which he said he had found, and that it was dropped by the prisoner. He then gave it to the prisoner, who opened it, and there appeared to be about iOl. in gold in it. The prisoner ap- peared grateful, and said he would reward the man and the prosecutor for restoring it. The Digitized by Microsoft® 319 CEIMINAL LAW — Larceny and Receivers. three then went to a public-house and had some drink. The prisoner then shewed some money, and said if the man would let him have lOZ., and let him go out of his sight, he would not say what he would give him. The man handed what seemed to be \0l. in money, and the prisoner and prosecutor then went out together. They then returned, and the prisoner appeared to give the Wl. back and 51. more. The prisoner then said he would do the same for the prose- cutor, and by that means obtained 'Al. in gold and the prosecutor's watch and chain from him. The prisoner and the man then left the public-house, and made off with the il. and the watch and chain. At the trial the prosecutor said he handed the 3Z. and the watch and chain to the men in terror, being afraid they would do something to him, and not expecting they would give him Ttl. : — Held, that he was properly convicted of larceny upon this evidence. Reg. v. Ilnzell, 11 Cox, C. C. 597 ; 23 L. T. 562. The prosecutrix engaged the prisoner to grind scissors, and paid him when they were ground. She then handed him six knives to grind. .He ground them and demanded 5«. ^d. for them, the ordinary charge being Is. 3rf. She refused to pay 5s. Gd. The prisoner then threatened her, and said he would make her pay, and ultimately, in consequence of her fears, she gave the prisoner 5s. 6(/. The prisoner was indicted for larceny of the 5«. &d., and the chairman on the trial di- rected the jury that, if the money was obtained by frightening the owner, the prisoner was guilty of larceny. The jury having convicted, the court upheld the conviction. Reg. v. Zovell, 8 Q. B. D. 185 ; .50 L. J., M. C. 91 ; 44 L. T. 319 ; 30 W. K. 416 ; 45 J. P. 407. e. "Where Possession originally obtained bonS. fide — Subseqaent Felonious Intent. Whether Possession or Custody of thing ob- tained.] — If a person is allowed to have posses- sion of a chattel and he converts it to his own use, it is not larceny, unless he had an intention of stealing it when he obtained possession of it ; but if he has merely the custody of a chattel, he is guilty of larceny if he disposes of it, although he did not intend to do so at the time when he received it into his custody. Reg. v. Junes, Car. & M. 611 ; .S. P., Reg. v. M-tiit.% Car. & M. 633. C To constitute larceny, the felonious intention ! must exist in the mind at the time the property ' is obtained ; for if it is obtained by fair contract, ) and afterwards fraudulently converted, it is no I felony. Reie v. Charlewood, 1 Leach, C. C. 409 ; \ 2 East, P. C. 689. A watchmaker, to whom a watch was given by the owner for the purpose of having it regulated, disposed of the watch, and applied the proceeds to his own puiTJOses :— Held, that this was no larceny, as the watchmaker had in the iirst in- stance obtained the possession of the watch right- fully, and so, unless there was a taking in the first instance animo furandi, no subsequent dis- honest dealing with the chattel could amount to larceny. Req. v. Thristle, 3 New Sess. Cas. 702 ; 2 0. & K. 842 ; T. & M. 204 ; 1 Den. C. C. 502 ; 3 Cox, C. C. 573 ; 19 L. J., M. C. 66 ; 13 Jur. 1035. 8. P., Rex v. Levy,. 4 C. & P. 241. The prisoner found two heifera which had strayed, and put them on his own marshes to graze. Soon af tei-wai-ds he was informed by S. Digitized by Microsoft® 320 that they had been put on S.'s marshes and had strayed, and a few days afterwards that they belonged to H. The prisoner left them on his marshes for a day or two and then sent them to a long distance as his own property. He then told S. that he had lost them, and denied all knowledge of them. The jury found (1) that at the time the prisoner found the heifers he had a reasonable expectation that the owner could be found, and that he did not believe that they had been abandoned by the owner. (2) That at the time of finding them he did not intend to steal them, but that the intention to steal came on him aftei-wards. (3) That the prisoner when he sent them away did so for the purpose and with the intention of depriving the owner of them and appropriating them to his own use :— Held, that a conviction of larceny could not be sustained. Reg. V. Matthews, 28 L. T. 645. If the owner parts with the possession of goods for a special purpose, and the bailee, when that purpose is executed, neglects to return them, and afterwards disposes of them ; if ho had not a felonious intention when he originally took them, his subsequent withholding and dis- posing of them will not constitute a new fe- / lonious taking, or make him guilty of felony. Rex V. BanliS, R. & R. C. C. 441. A drover employed to drive pigs, and paid the expenses of driving them, being paid wages by the day, but having the liberty to drive the cattle of any other person, at the end of his journey sold the pigs, and converted the pro- ceeds to his own use : — Held, not to be larceny, as at the time he received the pigs into his cus- tody he had no intention of appropriating them to his own use ; and that he was merely a bailee, and not a servant. Reg. v. Iley, T. & M. 209 ; 1 Den. C. C. 602 ; 2 Ci. & K. 983 ; 3 Cox, C. C. 582 ; 11 Jur. 154. A prisoner received the prosecutor's horse to be agisted, and after a short time sold it : — Held, not larceny. Re.e y. Smith, 1 M. C. C. 413. Where the jury found that one who assisted in taking another's goods fi-om a fire in his jsresence, but without his desire, and who afterwards con- cealed and denied having them, yet took them honestly at first, and that the evil intention to convert them came on the taker afterwards, held no larceny. Reir v. Leigh, 2 East, P. C. 694 ; 1 Leach, C. C. 411, n. If a fraudulent conversion takes place after the privity of contract is determined, it is felony. Rej^^ V. CJiarleivood, 1 Leach, C. G. 409 ; 2 East, P. C. 689. Where a man drove away a flock of lambs from a field, and in doing so inadvertently drove away along with them a lamb, the property of another person, and as soon as he discovered that he had done so sold the lamb for his own use, and then denied all knowledge of it :— Held, that as the act of driving the lamb from the field in the first instance was a trespass, as soon as he resolved to appropriate the lamb to his own use the trespass became a felony. Reg. v. Riley, Dears. C. C. 149 ; 6 Cox, C. C. 88 ; 22 L. J., M. C. 48 ; 17 Jur. 189. ' Question for Jury.]— Where a party removed a valuable article, part of a. wreck, from a wharf on which it had been placed, and had taken it into his own house, and had afterwards denied the possession of it :— Held, that the question for 321 CEIMINAL 'LAW— Larceny and Receivers. 322 the jury on an indictment for larceny was, whether, at the time he originally took it, he meant to steal it. Me;/, v. Horc, 3 F. & F. 315. A., carrying on business on his own account, entered into an engagement with B. to sell goods for him, and for certain purposes to be his ser- vant. B. entrusted A. with certain goods to dispose of in a. particular way. A. converted them to his own use : — Held, that it was a ques- tion for the jury to say whether, when A. received the goods, he had the intention of misappro- priating them. Jteg. v. Waller, 10 Cox, C. C. 360. Obtaining Possession from Wife of Owner.] — If a man and the owner's wife jointly take away the husband's goods, it may be larceny in the man, though he was acting jointly with the wife. Hex V. Tolfree, 1 M. C. C. 243. A prisoner cannot be found guilty of stealing goods, if it appears that he could not otherwise get them than by the delivery of the prosecutor's wife, in which case it may be presumed that he received them from her. Rex v. Harrison, 1 Leach, C. C. 47 ; 2 East, P. C. 559. Where Man is an Adulterer.] — There is such a unity of interest between husband and wife, that ordinarily the wife cannot steal the goods of the husband, nor can an indifferent pereon steal the goods of the husband by the delivery of the wife ; and if the wife delivei's the goods of the husband to an indifferent pereon, for that person to convert them to his own use, this is no larceny ; but if the person to whom the goods are delivered by the wife is an adul- terer, it is otherwise, and an adulterer can be properly convicted of stealing the husband's goods, though they are delivered to him by the wife. Meg. v. Tollett, Car. & M. 112. If no adultery has actually been committed by the parties, but the goods of the husband are re"^ moved from the house by the wife and the intended adulterer, with an intent that the wife should elope with him, and live in adultery with him, this taking of the goods is, in point of law, larceny. lb. The prisoner, who was previously on familiar terms with the prosecutor's wife, hired a cart, and told the owner to send it to the prosecutor's house to convey furniture for the woman whom he would find there to another address which he gave to the carter, and where the wife had pre- viously engaged rooms without her husband's knowledge. The cart was sent as directed and the furniture loaded, the wife being present but the husband and the prisoner absent during the loading. The wife accompanied the cart to the lodgings. The prisoner did not appear at the lodgings till the next night ; he then lived with her there for some days, using the furniture. The jury convicted the prisoner of stealing the furniture, and the court affirmed the conviction. ■ Heg. V. Flatman, 14 Cox, C. C. 396 ; 42 L. T. 159 ; 44 J. P. 314. The prisoner eloped with the prosecutor's wife, travelling in a cart which the wife took from her husband's yard. The prisoner sold the pony, cart, and harness, in the presence of the wife, who did not object to the sale and received the proceeds, which she retained, after paying the prisoner a sovereign, which he had expended in obtaining lodgings while they were living in a state of adultery : — Held, that the presence of the woman did not alter the offence ; that the fact that he negotiated the sale and received part of the proceeds was sufficient ; that from the cir- cumsta,nces, the prisoner must have known that the pony, cart and harness, were not the property of the woman ; and that, if the jury were of opinion that he had that knowledge, they were bound to convict him. Reg. v. Harrismi, 12 Cox, G. C. 19. When a wife absconds from the house of her husband with her avowterer, the latter cannot be convicted of stealing the husband's money missed on their departure, unless the avowterer is proved to have taken some active part either in carrying away or in spending the money stolen. Reg. V. Taylor, 12 Cox, C. C. 627. Where a man assists a wife in carrying off what he knows to be her husband's property, and goes away with her with the intention of committing adultery, he is guilty of larceny ; and the facts that he was in the husband's service, and acted under the wife's directions in removing the property, afford no answer to the charge. Reg. v. Mutters, L. & C. 511 ; 10 Cox, C. C. 50 ; 34 L. J., M. C. 54 ; 11 L. T. 642 ; 13 W. B. 326. Evidence.] — ^An adulterer cannot be con- victed of stealing the goods of the husband brought by the wife alone to his lodgings, and placed by her in the room in which the adul- tery was afterwards committed, merely upon evidence of their being found there ; but it would be otherwise if the goods could be traced in any way to his personal possession. Reg. v. Rosenberg, 1 C. & K. 238. A. assisting the wife of B. to take B.'s goods, which are afterwards used by them in common, without the consent of B., is evidence to warrant a conviction against A. of larceny. Reg. v. Thompson, 1 Den. C. C. 549 ; T. & M. 294 ; 14 Jti«^ 488. Delivery by the wife of her husband's goods to her adulterer, he having knowledge that she had taken them without her husband's authority, is sufficient to support an indictment for larceny against the adulterer. Reg. v. Featlierstoiw. Dears. C. C. 369 ; 2 C. L. E. 774 ; 6 Cox, C. C.' 376 ; 23 L. J., M. C. 127 ; 18 Jur. 538. If a person merely assists a married woman, who has not committed, or intended to commit, adultery, in carrying away the goods of her husband without the knowledge and consent of the latter, though with intent to deprive the latter of his property, he cannot be convicted of stealing the goods. Reg. v. Avery, Bell, C. C. 150 ; 8 Cox, C. C. 184 ; 28 L. J., M. C. 185 ; 5 Jur., N. S. 577 ; 32 L. T., 0. S. 138 ; 7 W. K. 431. B., watching his opportunity when the prose- cutor was absent, took away the prosecutor's wife, and with her several boxes filled with the prosecutor's property. B. and the wife were found living together in adultery. The pro- perty was all in their lodgings : — Held, that he was indictable for stealing the property of the prosecutor, as he took the property under such circumstances that the assent of the husband to the taking could not be presumed. Reg. v. Berry, Bell, C. C. 95 ; 28 L. J., M. C. 70 ; 5 Jur., N. S. 228 ; 32 L. T., 0. S. 329 ; 7 W. R. 240. Wife's Personal Clothes.] — The pi-isoner, who lodged in the house of the prosecutor, agreed Digitized by Microsoft® 323 CEIMINAL^ 'LAW— Larceny and Receivers. with his wife that they should go away, and live together in adultery. The prisoner left the iiouse, and was followed by the wife of the prosecutor. They were afterwards overtaken on the road m company together, the prisoner carrying a bandbox containing the wife's wear- ing apparel. He was convicted upon an indict- ment for stealing the property so found upon hun, the property being laid as that of the iusband :— Held, that the conviction could not "toe sustained, lleg. v. Fitch, Dears. & B C C 87 ; 7 Cox, C. C. 2C9 ; 26 L. J., M. C. 169 ■ .3 Jur., N. S. 524. , . . xoj , If a wife elopes with an adulterer who takes iher clothes with them, the taking is a larceny ; .and it is as much a larceny to steal her clothes! which are her husband's property, as it would be *o steal anything else that is his property, lien V. Tallett, Car. & M. 112. J3itt see jmccdinq ■ease. •' 324 f. Where Delivery does not Alter the Possession in Iiaw. /> Possession of Agent that of Principal.]— If a 7 person is allowed to have possession of a chattel, ^and he converts it to his own use, it is not , larceny, unless he had an intention of stealing I when he obtained possession of it, but if he has / merely the custody of a chattel, he is guilty of a larceny if he disposes of it, although he did not intend to do so at the time when he received it into his custody. Reg. v. Jojies, Car. & M. 611 S. P., Reg. V. Ecaiis, Car. i: M. 633. A lady wishing to get a railway ticket (the price of which was 10«.), finding a crowd at the pay-place at the station, asked the prisoner, who was nearer in to the pay-place, to get a ticket for her, and handed him a sovereign to pay for it. He took the sovereign intending to steal it, and instead of getting the ticket ran away : — Held, that he was guilty of larceny at common law. Reg. v. Thompton, 9 Cox, C. C. 244 ; L. & C. C. C. 225 ; 32 L. J., M. C. 53 ; 8 Jur., N. S. 1184 ; 7 L. T. 432 ; 11 W. K. 40. On an indictment for larceny, it appeared that the prisoner lived in the prosecutor's house and acted as nui-se to his sick daughter, the prisoner having board and lodging and occa- sional presents for her services, but no wages. While the prisoner was so residing, the prose- cutor's wife gave the prisoner money to pay a coal bill, which money the prisoner kept and brought back a forged receipt for the coal bill : — Held, that this was a larceny of the money, Reg. V. Smith, 1 C. & K. 428. Possession of Servant that of Uaster.] — A servant, whose duty it was to pay his master's workmen, and for this purpose to obtain the necessary money from the cashier, fraudulently represented to the cashier that the wages due to one of the workmen were larger than they really were, and so obtained fi-om him a larger sum than was in fact necessary to pay the workmen. He did this intending at the time to appropriate the balance to his own use. Out of the sum so received he paid the workmen the wages really due to them, and appropriated the balance to his own use : — Held, that, whether the obtaining the money in the first instance was larceny, or obtaining money by false pretences, the money while it remained in his custody was the pro- 1 Digitized by Microsoft® perty and in the possession of the master, and therefore the misappropriation of it by the ser- vant was larceny. Reg. V. Coohe, 1 L. R., C. C 295 ; 40 L. J., M. G. 68 ; 24 L. T. 108 ■ 1') W. R.389; 12 Cox, C. C. 10. ' A servant intrusted with the care of his master s property, and who subsequently appro- priates It to his own use, is guilty of larceny at the time he so disposes of it, and not at any previous time he may have intended to steal it, the principal of animus f uiandi not applying to the relation of master and servant. Ren v Roberts, 3 Cox, C. C. 74. A. employed B. to take his barge from S. to K, and paid him his wages in advance, and gave him a separate sum of three sovereigns to pay the tonnage dues. B. took the barge sixteen miles, and paid tonnage dues to an amount rather under 21., and appropriated the remainino- sovereign to his own use :— Held, a larceny Reg. V. Goode, Car. & M. 583 ; S. P., Ren v Beaman, Car. & M. 595. If a banker's clerk tells a customer of the house that he has paid in money on his account, and thereby induces the customer to give him a cheque for the amount, which he receives the money for, and aftei-wards makes fictitious entries in the books, to prevent a discovery of the transaction, it is a felonious taking of the money from the banker, without his consent, and not an obtaining of it under false pretences. Rex V. Hammond, 2 Leach, C. C. 1083 : 4 Taunt. 304; E.& R. 0. C. 221. It is felony for the confidential clerk of a mer- chant to take a bill of exchange, unindorsed, from the bill box, and convert it to his own use, although he was in the habit of transacting the cash concerns of the house from week to week ; for, as it had not been delivered to him for such purpose by his employer, it is a tortious taking from the possession of the master. Rex v. Chip- chase, 2 Leach, C. C. 699 ; 2 East, P. C. 567. If a servant, to whom goods have been delivered by his master to cany to a customer, sells them and converts the money to his own use, he is guilty of felony ; for the possession is not out of the master by such delivery. Rex v. Bass, 1 Leach, C. C. 258 ; 2 East, P. C. 566, 698. A servant's duty was to give out materials to be wrought up, and pay the workmen when the work was finished, and for this purpose he received cash from his masters, and at the end of each week he accounted witla them for sums so received and paid. The cash was kept by him, but he was not authorized to apply the money in any other way. He paid C. 13«., and fraudu- lently charged his employers as having paid 14*. ?>d., and appropriated the \s. Sd. to his own use : — Held, to amount to larceny. Reg. v. Zutv, 10 Cox, C. C. 168 ; 13 L. T. 642 ; 14 W. R. 286. A man was indicted for larceny as a servant. He was groom in the service of the prosecutor, and was supplied by his master with money to pay for the keep of the stallion of which he had the charge. In the course of his employment he stated that he had paid three sums of 7s. 2d., Is. id., and.7«. &d., to one Thomas Payne, which was untrue, and appropriated these sums to his own use : — Held, that it was not larceny. Reg. Y. Bartaell, 20 h. T. 1020. Where a servant received money from his master in order to pay the wages of work people therewith, and in the book in which the account 32S CEIMINAL LAW — Larceny and Receivers. 326 of the moneys so paid was kept by the master entries were fouad charging the master with more money than the servant had actually dis- bursed ; but there was no proof that he had ever delivered this account to his master : — Held, that this did not amount to larceny in the servant. Reg. v. Sutler, 2 C. & K. 340. A shopman was authorized to sell his master's goods at the price marked upon them, but at nothing less. He sold a pair of trousers at a lower price than that marked, and embezzled the money: — Held, not to be a larceny of the trousers. Reg. v. JBroehett, 4 Cox, C. C. 274. A miller's foreman, employed to sell goods and receive the money, sold some to a customer, who paid him for them. He did not enter the sale in his books, or account for the price according to the usual course of business, but concealed the whole transaction, and appropriated the money : . — Held, that there being an actual binding sale as between the buyer and the employer, he could not be convicted of stealing the goods, although he was guilty of embezzling the price. Reg. v. Retts, Bell, C. C. 90 ; 8 Cox, C. C. 140 ; 28 L. J., M. C. 69 ; 5 Jur., N. S. 274 ; 32 L. T., 0. S. 339 ; 7 W. K. 289. If a sei-vant receives from his master goods to sell, and appropriates them to his own use, he is not guilty of embezzlement but larceny. Reg. v. Hawkins, i Cox, C. C. 224. If a servant takes his master's property, and hands it over to another as a gift, it is as much a felony as if he takes it to a pawnbroker and pledges it. Reg. v. iVhite, 9 C. & P. 344. Where property, which the prosecutor had bought, was weighed out in the presence of his clerk, and delivered to his carman's servant to cart, who let other persons take away the cart and dispose of the property for his benefit jointly with that of the others, the caiman's servant as well as the others are guilty of larceny at com- mon law. Re.r v. Hardmg, R. & £. C. C. 125. The prisoner was occasionally employed as a clerk to the prosecutoi's, and having received from them a cheque on their bankers, payable to a creditor, for the purpose of giving it to the creditor, appropriated it to his own use : — Held, a larceny of the cheque. Reg. v. Mctcalf, 1 M. C. C. 433. It is larceny in the servant of the drawer of a cheque to whom it is given to deliver to a third person, to appropriate the value to his own use. Reg. V. Heath, 2 M. C. C. 33. A., who intended to sell his mare, sent his servant to M. fair, his servant having no authority either to sell the mare or deal with her in any way. The prisoner asked the servant the price and desired him to trot her out ; he then talked to two other men, and these two men then came up and peiBuaded the servant to exchange the mare for a horse they had, and they would give 2il. for the chop. They changed saddles, and without giving any money, rode away with the mare, leaving the servant with a hoi-se of little value : — Held, that as the servant had the mere charge of the mare, and had no right to deal with the property in her, the prisoner could be convicted of stealing the mare. Reg. v. Slieppard, 9 C. & P. 121. Possession by Drover or Agister, &c.] — A drover of cattle was employed by a grazier in the country to drive eight oxen to London ; his instructions were, that, if he could sell them on the road, he might ; and those he did not sell on the road he was to take to a particular salesman in Smithfield market, who was to sell them for the gi-azier. The drover sold two on, the road, and instead of taking the remaining six to the salesman, drove them himself to Smithfield market, and sold them there, and received the money, which he applied to his own use ; — Held, that he could not be convicted either of larceny or of embezzlement. Reg. v. Goodbody, 8 C. & P. 665. On an indictment against a farmer for stealing sheep entrusted to him for agistment, and which he had sold, concealing for upwards of a month the fact of sale, there being some evidence that he had, or might have supposed that he had, some implied authority to sell, or that the pro- secutor would not object to it if he realized a good price, the jury was directed that the question was, whether at the time of the sale, the prisoner had any reason to suppose that he might sell. Reg. v. Leppard, 4 F. & F. 51. If a man who is hired to drive cattle sells them, it is larceny ; for he has the custody only, and not the right to the possession ; his possession is the owner's possession, though he is a general drover, at least if he is paid by the day. Rex v. M'Namie, 1 M. C. C. 368. See Reg. v. Hey, 3 Cox, C. C. 582. A pei"son hired to drive cattle to a particular place, who sells the same and absconds with the money, is guilty of stealing, though the intention to sell is not conceived till after taking posses- sion of the cattle. Reg. v. Jackson. 2 M. C. C. 32. The prisoner, who was not pthei'wise in the prosecutor's service, was employed by the prose- cator to drive six pigs from C. to XJ. On the way he left one at Mr. M.'s, stating that it was tired, and he told the prosecutor that he had done so. The prosecutor told the prisoner to go and ask Mr. M. to keep the pig for him. The prisoner went to Mr. M.'s and "sold the pig to Mr. M. : — ■ Held, no larceny. Reg. v. Jories, Car. & M. 611. Possession of Person Hired for Special Pur- pose.] — It is larceny for a person hired for the special purpose of driving sheep to a fair to con- vert them to his own use, he having the intention so to do at the time of receiving them from the owner. Rex v. Stock, 1 M. C. C. 87. If the owner of goods employs a person, not in his service, to take them to a particular place, shew them to a customer, and bring them back, without authorizing him to sell them to or leave, them with the customer, and he, instead of taking the goods to the specific place, sells them for his own advantage, he will be guilty of larceny, in- asmuch as the felonious intent came upon him at a time when he had the custody only, and not the possession, of the goods. Reg. v. Harrey, 9 C. & P. 353. If a person, not being the servant of the party who intrusts him, receives a parcel containing notes to take to » coach-office, and abstracts the notes on his way there, and applies them to his own use, he is guilty of larcenv. Req. v. " " ', 9 C. & P. 28. g. Against Will of the Owner. Assent of Owner — Effect of.]— The assent of a prosecutor to give facility to the commission of a, Digitized by Microsoft® 827 CRIMINAL 'LAW— Larceny and Receivers. 328 lai'ceny, for the purpose of detecting the offenders, does not do away with the felony, although the property was not taken against his will. Rea! v. JHJr/ginUm, 2 Leach, C. C. 913 ; 2 Bast, P. C. 494, f,66 ; 2 B. & P. 508. Overtures were made by a person to the ser- vant of a publican, to induce him to join in robbing his master's till. The servant commu- nicated the matter to the master, and some weeks afterwards, the servant, by the direction of his master, opened a communication with the peraon who had made the overtures, in conse- quence of which he came to the master's pre- mises. The master having previously marked some money, it was, by his direction, placed upon the counter by the servant, in order that it might be taken up by the party who had come for the porpose. It was so taken up by him : — Held, •larceny in such party. Rig. v. WiUiam-^, 1 C. & K. 195. A. being somewhat tipsy, lay on the ground partly asleep, and while in that state saw the prisoner take his watch out of his pocket, which he took no steps to prevent, believing that the prisoner, with whom he had been acquainted for some time, was acting solely from friendly motives : — Held, that this evidence would not support a charge of larceny at common law, but disclosed a bailment. Reg. v. Ri-cces, 5 Jur., N. S. 716. h. Carrying a'way — ^Asportation. Larceny from Person — What sufficient Ee- moval or Severance.] — To constitute a stealing from the person, the thing must be completely removed from the person ; removal from the place where it was, if it remains throughout with the pereon, is not sufficient. Rev v. Tlum.psoii, 1 M. C. C. 78. But such removal woidd be sufficient to con- stitute a simple larceny, lb. A watch was carried in a, waistcoat pocket, with a chain attached passing through a button- hole of the waistcoat, being there secured by a watch-key. The prisoner took the watch out of the pocket and by force drew the chain out of the button-hole, but the watch-key having been caught by a button of the waistcoat, the watch and° chain remained suspended: — Held, a suffi- cient-severance to maintain a conviction for stealing from the person. Reg. v. Simp-wn, Deaais. C C. 421 ; 3 C. L. E. 80 ; 6 Cox, C. C. 422 J., M. C. 7 ; 18 Jur. 1030. 24 L. What sufficient Severance.]— Where goods in a. shop were tied to a string, which was fastened by one end to the bottom of the counter, and a thief took up the goods and caiTied them away towards the door as far as the string would permit :— Held, that being no severance, there was no asportation, and consequently that it was not a felony. Anon., 2 East, P. C. 556 ; 1 Leach, C. C. 321, n. diverted the gas from the meter and thereby avoided paying for the full quantity used :— Held, that there was a sufficient severance of the gas, at the point of junction of the connecting pipe with the entrance pipe, to constitute an asportation. Reg. v. White, 3 C. & K. 363 ■ Dears. C. C. 203; 6 Cox, 0. C. 213 ; 22 L. J., M." C. 123 ; 17 Jur. 536. Goods in Waggon or Coach.] — Where a prisoner set up a long bale upon end in a waggon, and out the wrapper all the way down with intent to remove the contents, but was appre- hended before he had taken anything out of it : — Held, that there wasnot a sufficient asportation to constitute a larceny. Re.r v. Cliemj, 1 Leach, C. C. 236, n. ; 2 East, P. C. 556. To remove a package from the head to the tail of a waggon, with a felonious intent to take it away, is a sufficient asportation to constitute a larceny ; but merely to alter the position of a package on the spot where it lies is not. Re.r; v. Co-ilet, 1 Leach, C. C. 236 ; 2 East, P. C. 556. A prisoner, having lifted up a bag fi'om the boot of a coach, was detected before he had got it out ; and it did not appear that it was entirely removed from the space it at iirst occupied in the boot, but the raising it from the bottom had com- pletely removed each part of it from the space that specific part occupied : — Held, that it was a complete asportation. Rex v. Walsk, 1 M. G. C. 14. Apprehension before Taking.] — Where a pri- soner stopped the prosecutor, who was cariying a bed on his shoulders, and told him to lay it down, or he would shoot him ; and he laid it down on the ground, but before the prisoner could take it up he was apprehended : — Held, that the offence was not completed. Re.i' r. Furrell, 1 Leach, C. C. 322, n. Abstracting Money from Letter.] — If A. asks B., who is not his servant, to put a letter in the post, telling him it contains money, and B. breaks the seal, and abstracts the money before he puts the letter in the 'post, he is guilty of larceny. Re,r v. Jones, 7 C. & P. 151. By Bailees.]— A. was convicted of larceny under the following circumstances : he was a common carrier, and employed by the prosecutor to carry a cargo of coals from a ship to a coal-yard belonging to the prosecutor. He carted the coals to the first-mentioned coal-yard, and was eneased for several days in carting them thence .- %,-? „.,j.„,.'„ ^<.i-,o,. ^ovA He left the first- Gas Stolen.] — The prisoner had con- tracted with a gas company for a supply of gas. The quantity consumed was to be measured by a meter. The gas was conveyed from the com- pany's main through an entrance pipe (the pro- perty of the prisoner) to the meter, and from thence by another pipe called the exit pipe to the burners. The prisoner by inserting a con- necting pipe into the entrance and exit pipes. Digitized by Microsoft® to the prosecutor's other yard, mentioned coal-yard on one of those days with two carts and a waggon, all laden with coals ; before he arrived at the other yard, he delivered the two cart-loads to a third person on his own account, but he duly delivered the waggon-load at the prosecutor's yard :— Held, that the con- viction was wrong, the coals having been de- livered to A. as a carrier, and there having been no breaking of bulk or other determination of the bailment. Reg. v. Covnisli, Dears. G. G. 425 ; 6 Cox, C. G. 432. . , , f If the master or owner of a ship steals some of the goods delivered to him to carry, it is not Lrceny in him, unless he takes the goods out of their packages. Rex v. Madox, E & R. C. C. J^. n one employed to carry goods for hire appro- priftesthemtohis own use, but does not break 329 CEIMINAL LAW — Larceny and Receivers. 330 bulk, this is no larceny, although the person so employed was not a common carrier, but was only employed in this particular instance. Rex V. Fletcher, 4 C. & P. 544. A., the owner of a boat, was employed by B., the captain of a ship, to carry a number of wooden staves ashore in his boat ; B.'s men were put into the boat, but were under the control of A., who did not deliver all the staves, but took one of them away to the house of his mother : — Held, that this was a bailment of the staves to A., and not a charge only ; and that a mere non- delivery of the staves would not have been a larceny in A. ; but that if A. separated one of the staves from the rest, and carried it to a place different from that of its destination, with intent to appropriate it to his own use, that was equi- valent to a breaking of bulk, and therefore would be sufficient to constitute a larceny. Rese V. Howell, 7 C. & P. 325. If a warehouseman has several bags of wheat delivered to him for safe custody, and he takes the whole of the wheat out of one bag, it is no less a larceny than if he had severed a part from the residue of the wheat in the same bag, and had taken only that part, leaving the remainder of the wheat in the bag. Resc v. Brazier, R. & R. C. C. 337. A. consigned three trusses of hay to B., and sent them by the prisoner's cart ; the prisoner .took away one of the trusses, which was found in his stable, but not broken up : — Held, no larceny, as the prisoner did not break up the truss. Rex v. Pratley, 5 C. & P. 533. But see 710W 24 & 25 Vict. c. 96, s. 3. What a sufficient Asportation,] — The transfer of a letter by a letter carrier from his pouch to his pocket is a sufficient asportation. Reg. v. Poynton, L. & C. 247 ; 9 Cox, C. C. 249 ; 32 L. J., M. C. 29 ; 8 Jur., N. S. 1218 ; 7 L. T. 434 ; 11 W. R. 73. In an indictment for stealing Ave pints of porter, it appeared that the prisoner was dis- covered standing by a barrel of porter, out of a hole in which the porter was running into a can on the ground, and that about five pints had run into the can : — Held, that there was a sufficient asportavit proved of the porter in the can. Reg. V. Wallis, 3 Cox, C. C. 67. Two prisoners were charged with stealing four sacks of barley and three sack bags from their master. The prisoners and B. were employed by the prosecutor to winnow barley, which he had mixed with canary seed. One of the prisoners fetched several sacks from the prosecutor's house, which he and B. filled with barley. The two prisoners then sent B. home before the usual time. At twelve o'clock on the night of the same day, the carter went into the stable with a lantern, and shortly afterwards the prisoners entered the stable. In a few minutes after this the prosecutor saw the carter in the loft above with a lantern, and found the prisoners concealed under straw in the loft, and then in a dust-bin in a stable beneath he found three sacks full of barley mixed with canary seed, which he swore was of the same kind which he had mixed. It was no part of the duty of the prisoners to place the barley in sacks or to put the sacks of barley into the dust-bin. The jury found both the prisoners guilty : — Held, that the evir dence was sufficient to support the conviction. Reg. V. Samways, Dears. G. C. 371. i. Possession of 0\ra.er, what Sufficient. Possession obtained by Fraud.] — ^A. owed il.. 11*. l^cl. to the prosecutor ; and the latter having- demanded payment, the prisoner said he would settle with him on behalf of A. He took out of his pocket a piece of blank paper, stamped with a sixpenny stamp, and put it upon the table, and then took out some silver in his hand. The pro- secutor wrote a receipt for the sum mentioned on the stamped paper, and the prisoner took it up and went out of the room. On being asked for the money, he said, "It is all right," but never paid it : — Held, that this was not a case of larceny, the prosecutor never having had such a possession of the stamped paper as would enable him to maintain trespass. Reg. v. Smith, 2 Den. C. C. 449 ; 5 Cox, C. C. 533 ; 21 L. J., M. C. Ill ; 16 Jur. 414 ; S. P., Beg. v. Frompton, 2 C. & K. 47. Where in consequence of an advertisement, A. applied to B. to raise money for him, and B. promised to procure 5,000Z. and produced ten blank 6«. stamps, across which A. wrote an ac- ceptance, and B. took them up without saying anything, and afterwards filled up the stamps as bills for 500Z. each and put them in circulation • — Held, that as the prosecutor never had any possession of the papers so as to maintain tres- pass for them, there was no taking of them, sufficient to constitute larceny. Rex v. Hart, 6 C. & P. 106. * Possession obtained by Threats.] — To obtain from a person his note of hand by threatening- with a knife held to his throat to take away his life, was not a felonious stealing of the note within 2 Geo. 2, c. 25, s. 3, for it never was of value to, or in the peaceable possession of, such person. Rex v. Pliipoe, 2 Leach, C. C. 673 ; 2" Bast, P. C. 599. See now 24 & 25 Vict. c. 96, s. 48. If a person with menaces demanded a sum of money of another, and that other did not give it to him because he had it not -mth him, this was a felony within 7 & 8 Geo. 4, c. 29, s. 6 ; but if the person demanding the money knew that the money was not then in the possession of the party, and only intended to obtain an order for the payment of it, it was otherwise. Rex v. Edwards, 6 C. & P. 515. See now 24 & 25 Vict., c. 96, s. 48. Special Property in Goods determined by Vn- la-nrful Acts.] — The prisoner was employed by a tailor to sell clothes for him about a particular- county ; the price of each article was fixed, and the clothes -fc-ere entrasted to the prisoner on the- arrangement that he was to sell them at the price fixed, he receiving 3.s. in the pound on the amount received for them, and being bound to bring back the remainder of the clothes which were unsold. The prisoner received from the prosecutor a parcel of clothes on these terms, but, instead of selling- them, he fraudulently pawned a portion of them for his own benefit, and afterwards fraudulently misappropriated the residue to his own use : — Held, that the original bailment of the goods to> the prosecutor was determined by the unlawful act of pawning part of them, and that the sub- sequent fraudulent misappropriation of the- remainder amounted to larceny. Reg. v. Poyser^ 2 Den. C. C. 233 ; T. & M. 559 ; 5 Cox, C. C. 241 ;. 20 L. J., M. C. 191 ; 15 Jui. 386. Digitized by Microsoft® 331 CEIMINAL LAW — Larceny and Receivers. 332 What sufficient Beduction into Possession.]— The prisoner was employed to trap wild rabbits, and it was his duty to take them when trapped to the head keeper. Contrary to his duty he trapped from time to time rabbits, and took them to another part of the land, and placed them in a bag, which another keeper observing, went and took some of the rabbits out of the bag during the prisoner's absence and nicked them, and put them into the bag. His reason for nicking them was that he might know them again. The prisoner afterwards took away the bag and the rabbits with the intention of appropriating them to his own use : — Held, that the act of the keeper in nicking the rabbits was no reduction of them into the possession of the master, so as to make the prisoner guilty of stealing them. Seg. v. PetcJi,, U eox, C. C. 17 ; 38 L. T. 788. Possession of Uaster by means of Servant.] — The prosecutor's horse had been impounded. The prisoner, pretending that he had been sent by the prosecutor, paid the pound-keeper's demand, received the horse, and made off with it. He was indicted for larceny. The indictment had two counts, one laying the property in the pro- secutor, and the other in the pound-keeper : — Held, that the pound-keeper was a servant of the owner, and, therefore, that the offence was larceny. Rcffi v. Simpnon, 2 Cox, C. C. 235. Where a person gave his servant a 51. note to get changed, and he got the note changed, and made off with the change : — Held, to be no larceny, but an embezzlement. lie-r v. Siillens, Car. C. L. 319 ; 1 M. C. C. 129. The prisoner was sent with his master's cart for some coals. The coals were delivered to the pri- soner and deposited in the cart, their price being entered to the master's account. On the road home the prisoner disposed of a portion of the coals : — Held, that this was larceny of the coals and not embezzlement, the prisoner having determined his exclusive possession of the coals when they were deposited in the cart, and the possession from that time being in the master. Beg. V. MeUl, Dears. C. C. 257 ; 2 C. L. R. 607 ; 23 'L. J., M. C. 25 ; 18 Jur. 67. , . . The prisoner having been entrusted with certain goods for sale, and ten pounds in silver, to ^ve change, by his master, absconded :— Held, that he could not be convicted of embezzlement, having received the goods from the master him- self and not from another for and on account of his master ; but that he might be convicted ot larceny. Reg. v. Hawkins, 1 Den. C. C. 584 ; 1. & M. 328 ; 14 Jur. 513. A. had agreed to buy straw of B., and sent ms servant C. to fetch it ; C. did so, and put down the whole quantity of straw at the door of A. s stable, which was in a court-yard of A., and tnen went to A. and asked him to send some one with the key of the hay-loft, which was over the stable, which A. did, and 0. put part of. the straw into the hayloft, and carried the rest away to a public- house, and sold it:— Held, that this carrying away of the straw by C, if done with a felonious intent, was a larceny, and not an embezzlement, as the delivery of the straw to A. was complete when it was put down at the stable-door. Meg. v. JSmiward, 1 C. & K. 518. , ^ „„ The prisoner was employed to conduct an office in connexion with a branch bank. Uis salary included his services, and the providing an office, which was in his own house, where he Digitized by Microsoft® carried on another business. The office was fitted up at the expense of the bank, and in it there was an iron safe, the property of the bank, into which it was his duty, when the night came, to put any money received during the day, which had not been required. The manager of the branch banlc kept a duplicate key of the safe. It was the prisoner's duty to receive money from customers, to be put to their accounts with the branch bank, and to pay cheques. The prisoner was indicted for larceny as a clerk, and the jury found him guilty of having stolen some money received from customers, which before such stealing had been placed in the safe : — Held, that there was evidence to go to the jury of larceny. Beg. V. Wright, Dears. & B. C. C. 431 ; 7 Cox, C. C. 413 ; 27 L. J., M. C. 65 ; 4 Jur., N. S. 313. See also eases ante, col. 316. 2. What are the Subject of Laecent. a. Generally. Things Savouring of the Realty.] — Before 7 & 8 Geo. 4, c. 29, stealing rolls of parchment was a larceny, though such rolls were the records of a court of justice unless they concerned the realty. Bex V. Wallier, 1 M. C. C. 155. But it was not so if they concerned the realty. Bex V. Westleer, 2 Str. 1133. A commission to settle the boundaries of a manor is an instrument concerning the realty, and not the subject of larceny at common law. Ber V. Westbeer, 1 Leach, C. C. 13. Seaweed.] — Drifted and ungathered sea- weed, cast on the shore, between high and low water mark, of him who has the exclusive owner- ship of the shore, is not the subject of larceny. Beg. V. Clinton, 4 Ir. K., C. L. 6. Pigs Buried.]— Three pigs bitten by a mad dog were shot and buried on the owner's land three feet below the surface of the soil. There was no intention of digging them up again or of making any use of them, but the same evening the prisoners dug them up, earned them away, and afterwards sold them for 92. 3«. 9(i The jury found that there was no abandon- ment of the property of the pigs by the owner, and convicted the prisoners of larceny :— Held, that larceny would lie notwithstanding the dead; pigs were buried in the ground three feet below the surface. Beg. v. Mwards, 13 Cox, C. C. 384 ; 36 L. T. 30. Animals Ferae Saturse—Eabhits.]— Poachers of whom the prisoner was one, wrongfully killed a number of rabbits upon land belonging to the crown They placed the rabbits m a ditch upon the land, some of the rabbits in bags, and some strapped together. They had no mtention to^ abandon the wrongful possession of the rabbits which they had acquired by takmg them bu put them in the ditch as a place of deposit t they could conveniently remove them. About th?ee hours afterwards the prisoner came back and began to remove the rabbits :— Held, that the taling of the rabbits and the removal of -^rwrti^^TTottrc;^.;^^ C. 59. 333 CRIMINAX LAW— Larceny and Receivers. 334 Live Partridges.] — A prisoner was in- rticted for stealing one dead partridge, and the proof, was tliat the partridge was wounded, but was picked up or caught by the prisoner while it was alive but in a dying state : — Held, that the indictment was not proved. Reg. v. Boe, 11 Cox, C. C. 554 : 22 L. T. 414. But if Confined, it is Otherwise.] — Part- ridges about three weeks old and able to fly a little, which had been hatched and reared by a common hen, placed under a hen-coop, and after the removal of the coop remained about the place with the hen as her brood, sleeping under her wings at night, may be the subject of larceny. Jleff. V. Shiclde, 1 L. R., C. C. 158 ; 38 L. J., M. C. 21 ; 19 L. T. 327 ; 17 W. E. 144 ; 11 Cox, 0. G. 189. Pheasants that have been reared under hens, and have never become wild, may be the subject of larceny. Reg. v. Head, 1 F. & F. 350. So young pheasants hatched by a hen, and under the care of the hen, in a coop, in a field at a distance from a dwelling-house, are the sub- ject of larceny. Reg. v. Cory, 10 Cox, 0. C. 23. S. P., Ra/. V. Garnham, 1 Cox, C. C. 451 ; 2 F. & F. 347. Pigeons kept in an ordinary dovecote, having liberty of ingress and egress at all times by means of holes at the top, may be the subjects of lar- cenv. Reg. v. Clmifor. 2 Den. C. C. 361 ; 5 Cox, C. C. 3B7 ; 21 L. J., M. C. 43. If pigeons are so far tame that they come home every night to roost in wooden boxes, hung on the outside of the house of their owner, and a party comes In the night and steals them out of these boxes, this is a larceny. Rex v. SrooJis, 4 C. & P. 131. Products of Domestic Animals.] — Pulling wool from the bodies of live sheep and lambs, animo furandi, is larceny. Re.r v. Martin, 1 Leach, C. C. 171 ; 2 East, P. C. 618. So it is larceny to take the milk from a cow. lb. Domestic Animals not Used for Food.] — Dogs are not the subject-matter of larceny at common law. Reg. v. Robinson, Bell, C. C. 34 ; 28 L. J., M. C. 58 ; 5 Jur., N. S. 203. Ferrets, though tame and saleable, cannot be the subject of larceny. Rece v. Searing, R. & R. C. C. 351.' Choses in Action or Goods and Chattels.] — Mortgage deeds, being substituted securities for the payment of money, are choses in action, and not goods and chattels. Where, therefore, a pri- soner was indicted for a burglary, in breaking into a house at night, with intent to steal the goods and chattels therein, and the jury found that he broke into the house with intent to steal mortgage deeds only, the conviction was quashed. Re/;. V. Powell, 2 Den. C. C. 403 ; 5 Cox, C. C. 326 ; 21 L. J., M. C. 78 ; 16 Jur. 177. An agreement, although unstamped, is a chose in action, and therefore not the subject of lar- ceny. Reg. V. Watts, Dears. C. C. 326 ; 6 Cox, C. C. 304 ; 2 C. L. R. 604 ; 23 L. J., M. C. 56 ; 18 Jur. 192. But by 17 & 18 Vict. c. 83, s. 27, every instrii- meiit liable to stamp dnty shall be admitted in eeidcnce in any criminal proeeeding , althowgU it may not have the st'a/mp '/•equired by law im- ■pvessed thereon or affixed thereto. Stealing a pawnbroker's duplicate is larceny, Ren. V. Morrison. Bell, C. C. 158 ; 8 Cox, C. G. 194 ; 28 L. J., M. C. 210 ; 33 L. T., 0. S. 220 ; 7 W. R. 554. The fraudulent taking of a railway ticket for the purpose of using it to travel, and so defraud- ing the railway company, is larceny, although the ticket would, if used, be returned to the company at the end of the journey. Reg. v. Beecham, 6 Cox, C. C. 181. 0as.] — The prisoner had contracted with a gas company for a supply of gas. The quantity consumed was to be measured by a meter rented by the prisoner of the company, and was to be paid for according to such measurement. The gas was conveyed from the company's main through an entrance pipe (the property of the prisoner) to the meter, and from thence, by another pipe, called the exit pipe, to the burners. The prisoner, by inserting a connecting pipe into the entrance and exit pipes, diverted the gas from the meter, and thereby avoided paying for the full quantity of gas consumed : — Held, that this was larceny of the gas ; that the pro- perty and possession of the gas were in the company ; and that it was immaterial whether the service pipe was the property of the prisoner or the company. Reg. v. White, 3 C. & K. 363 ; Dears. C. C. 203 ; 6 Cox, C. C. 213 : 22 L. J., M. C. 123 ; 17 Jur. 536. Water stored in Pipes.] — Water supplied by a water company to a consumer, and standing in his pipes, may be the subject of a larceny at common law; Ferens v. O^Bricn, 11 Q. B. D. 21 ; 52 L. J., M. C. 70 ; 31 W. R. 643 ; 47 J P. 472. b. In particular Cases. i- Docttmentx, Bills, Securities, S;e. Documents of Title to Goods.] — By 24 & 25 Vict. c. 96, relating to Inrerny and other similar offences, s. 1, in the interpretation of this art the term " doeumnit of title to goods " shall inehide any hill of lading, India warrant, doeh warrant, warehouse heeper's certificate, warrant or order for the delivery or transfer of any goods or valimble thing, bought and sold note, or any other document used in th^l ordinary course of business us proof of tlie possession or control of goods, or authorizing or jjuipoHing to authorize, either by indorsemoit or by de- livery, the possessor of such document to trans- fer or receive any goods tliereby represented or therein mentioned or referred to. Document of Title to Lands.] — yAe term "document of title to lands" shall iticlude any deed, map, paper, or parchment, written or printed, or partly written andpartly printed, beituj or containing evidence of the title, or any part of the title to any real estate, or to any interest in or out of any real estate. Property.] — Tliis term shall include every description of real and personal property, money, debts, and legacies, and all deeds and instruments relattng to or eridcjici'iig the title or right to any property, or giving a right to recover or receive any money or goods, and shall also in- clude, not only such property as shall have been originally in the possession or u?ider the control Digitized by Microsoft® 335 CEIMINAL liAW— Larceny and Receivers. of am party, Imt also any property into or for wkich the same may have been converted or ex- elkanged, and any thing acquired by sueh con- version or exoliange, whethi ' -• - otlicrmise. eaiohatige, whether immediately Valuable Securities.] — TAe term "valuable security" shall include any order, Easehecmer acquittance, or other security whatsoever, en- titling or evidencing the title of any person or body corporate to aivy sliare or interest in any public stoch or fund, whether of the United Kingdom, or of Great Britain or of Ireland or of any foreign state, or in any fund of any body ooiporate, company, or society, wJi,ether loithin the United Kingdom or in any foreign state or country, or to any deposit in any bank, and shall also include any debenture, deed, bond, bill, note, warrant, order, or other security whatsoever for 'money or for payment of money, wlwther of tlbe United Kingdom, or of Great Britain, or of Ireland, or of any foreign state, and any document of title to lands or goods as hereinbefore defined. (Former precision, 7 & 8 Geo. 4, c. 29, s. 5.) By 24 & 25 Vict. c. 96, s. 27, whosoever shM steal, or shall for any fraudulent puipose de- stroy, cancel, or obliterate the whole or any part of any valuable security, other than a document of title to lands, sliall be guilty of felony, of the same nature and in the same degree, and punisli- able in tlie same manner as if lie Jiad stolen any chattel of like value with the share, interest, or depos-it to which the security so stolen may re- late, or with the money due on the security so stolen, or secured thereby and remainiiig unsatis- fied, or with the value of the goods or other valuable thing represented, mentioned, or re- ferred to in or by the security. (Former pro- vision, 7 & 8 Geo. 4, o. 29, s. 5.) Mortgage Seeds.] — A mortgage deed, and title deeds accompanying it, constituted a secu- rity for money within the latter statute. Reg. v Williams, 6 Cox, C. C. 49. Indictment.] — An indictment charging in one. count the larceny of " three deeds being a security for money, to wit, for 201., of and belong- ing to H. W. : " and in another count the larceny of " three deeds, being a security for the payment of money, to wit, for 201., of and belonging to H. W.," is supported by proof of the larceny of deeds of lease and release from A. to B. of real estate, and of a mortgage by demise of the same property from B. to C, and held by the prosecutor as executor of C. lb. An indictment under 24 & 25 Vict. c. 96, s. 27, for stealing a valuable security, must particu- larise the kind of valuable security stolen ; and any material variance between the description in the indictment and the evidence, if not amended, wUl be fatal. Reg. v. Lowrie, 1 L. E., C. C. 61 ; 36 L. J., M. C. 24 ; 15 L. T. 632 ; 15 W. K. 860. 836 A person might be convicted, under 7 & 8 Geo. 4, fAJL ■', ^^ '*°^^ """P certificates of a foreign railway company, as the statute ex- tended to valuable securities for the sharesTn the funds of a foreign as well as of a British company Reg. v. Smith, Dears. 0. C. 561 7 Cox^ C. C. 93 ; 25 L. J., M, 0. 31 ; 1 Jur. ^.'s! Country bankers' notes, which had been paid by the bankers m London at whose house thev were made payable, and by them sent down to the country bankera to be re-issued, on the wav there were stolen, and the prisoner was indicted for receiving them. The indictment in some counts charged the notes to be valuable securi- ties, and m others, as pieces of paper of the goods and chattels of the country bankers The prisoner was convicted and the conviction held right. Some of the judges doubted whether these notes were to be considered as valuable securities, but, if not, they all thought thev were goods and chattels. Rex v. Vyze, 1 M. C. C. 218. Exchequer bills, although signed by a person not authorized to do so, were securities and efEects within 15 Geo. 2, c. 13, s. 12. Bex v Aslett, 1 N. K. 1 ; 2 Leach, C. C. 958 ; B. & K. C. C. 67. The halves of country bank notes, sent in a letter, are goods and chattels, and a person who steals. them is indictable for larceny. Rex v Mead, 4 C. & P. 535. A., in consequence of seeing an advertisement, applied to B. to raise money for him. B. said he would procure him 5,000Z., and produced from his pocket-book ten blank 6«. bill stamps, across each of which A. wrote, "Accepted, payable at Messrs. P. & Co., 189, P. Street, London," and signed his name. B., who was present, took up the stamps, and nothing was said as to what was to be done with them. Afterwards bUls of ex- change for 500i. each were drawn on these stamps, and B. put them into circulation :— Held, that these stamps, with the acceptances thus written upon them, were neither bills of exchange, orders for the payment of money, nor securities for money. Rex v. Hart, 6 C. & P. 106. Cheque.] — ^A cheque is the subject of larceny if obtained animo furandi. Commonwealth v. Yerhes, 12 Cox, C. C. 208. Even if Void.] — A. charged in one count with stealing a cheque for 13?. 9s. Id., and in another count with stealing a piece of paper value \d. : — Held, that, supposing the cheque to have been a void cheque (as beiug contrary to 55 Geo. 3, e. 184), it would still sustain the charge laid in the second count. Reg. v. Perry, 1 Den. C. C. 69 ; 1 C. & K. 725. Bills, Notes, and other Securities.] — Stealing re-issuable notes after they have been paid, and before they have been re-issued, did not subject the party to an indictment on 2 Geo. 2, c. 25, for stealing notes ; but he might be indicted for stealing paper with valuable stamps upon it. Rex v. Clarli, E. & E. C. C. 181 ; 2 Leach, C. C. 1036. Digitized by Microsoft® Deeds relating to Real Property.] — By 24 & 25 Vict. c. 96, s. 28, whosoever shall steal, or shall for any fraudulent purpose destroy, cancel, obliterate, or conceal the mwle or any part of any document of title to lands shall be guilty of felony, and being convicted thereof sliall be liable, at the discretion of the court, to be liept in penal servitude for the term of five years (27 & 28 Viet. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or tvithmit solitary con- finement. N 387 CEIMINAL LAW — Larceny and Receivers. 338 ■Wills or Codicils.] — By s. 29, whosoever sliall either during the life of the testator or after his death, steal, or for any froAidident jmrpose destroy, cancel, obliterate, or eonceal, tJte lohole or any part of any will, codicil, or other testa- mentary hiatiiiment, whetlier the same shall re- late to real or personal estate, or to both, sliall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be hept in peiial servitude for life or for any term not less than fire years, or to be impri- soned for any term not exceeding two years, with or without hard labour and with or without solitary confinement. And it shall not in any indictment for such offence be necessary to allege that such will, codicil, or other mutrwment is the property of any person. (^Former precision, 7 & 8 Geo. 4, c. 29, s. 23.) Fraudulent Purpose.] — If a defendant con- cealed a will, and the money which ought, by the will, to have gone. to A. and B., and with that money paid the debts of the husband of the next of kin, to whom he was a creditor, this was a fraudulent" purpose, within 7 & 8 Geo. 4, u. 29, s. 23. Beg. v. 3/orris, 9 C. & P. 89. What Taking is sufficient.] — On an indict- ment on 7 & 8 Geo. 4, c. 29, s. 23, for stealing writings relating to real estate, the jury must be satisfied that the defendant took them under such circumstances as would have amounted to larceny, if the writings had been the subject of larceny. Bex v. John, 7 C. & P. 324. Records or Legal Documents.] — By s. 30, tvho- soever shall steal, or shall for any frauduleiU purpose talie from its place of deposit for tlm time being, or from any person ha/eing the law- ful custody tliereof, or shall unlawfully and maliciously cancel, obliterate, injure, or destroy the whole or any part of any record, lorit, re- turn, panel, process, interrogatory, deposition, affidavit, rule, 'order or warrant of attorney, or of any original documsnt whatsoever of or be- loiigiiig to any court of record, or relating to any matter, civil or criminal, begun, depending, or terminated in any such court, or of any bill, petition, answer, interrogatory, deposition, affi- davit, order, or decree, or of any original docu- ment whatsoever, of or belonging to any court of equity, or relating to any cause or matter begun, depending, or terminated in any such court, or of any original document in anywise relating to the business of any office or employment under her Majesty, , and being or remaining in any office appertaining to any com-t of justice, or in any of her Majesty's castles, palaces, or liouses, or in any government or public office, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be hept in penal servitude for fixe years (27 & 28 Vict. c. 47), or to be imprisoned for any term, not exceeding two years, with or without hard labour, and with or without solitary confine- ment; and it sliall not in any indictment for such ojfenee be necessary to allege that the article in respect of which tlie offienee is com- mitted is the property of any person. (^Former provision, 7 & 8 Geo. 4, c. 29, s. 21.) Taking for Fraudulent Purpose.]— A judgriient debtor's goods having been seized under warrants of execution of a county court, and being in the possession of the bailiff, the debtor, with intent to deprive the bailiff, as he supposed, of his autho- rity, and so defeat the execution, forcibly took the warrants from him : — Held, that he was not guilty of larceny, but that he was guilty of taking the warrants for a fraudulent purpose within 24 & 25 Vict. c. 96, s. 30. Beg. v. Bailey, 1 L. E., C. C. 347 ; 41 L. J., M. C. 61 ; 25 L. T. 882 ; 20 W. K. 301 ; 12 Cox, C. C. 129. ii. Horses, Cattle, Sfc. Statute.]— By 24 & 25 Vict. c. 96, s. 10, whoso- ever sliall steal any horse, mare, gelding, eolt or filly, or any hill,cow, ox, lieifer or calf, or any ram, ewe. sheep or lamb, shall be guilty of felony, mid, being convicted tliereof, sliall be liable, at the discretion of the court, to be hept in penal scrritude for any term not exceeding fourteen years a^d not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding tivo years, with or without hard labour, and with or without solitary' conjine- ment. (^Pi'evious provision, 7 & 8 Geo. 4, c. 29, s. 25.) Bullock-stealing.] — The phrase bullock-steal- ing, in 7 Geo. 4, c. 64, s. 28, relating to the allowance of rewards in certain cases for the dis- coveiyof offendei-s, includes all cases of cattle- stealing of that particular description, e. g. ox, cow, heifer, &c. Bex v. Gillbrass, 7 C. & P. 445. Stealing Lambs — What is.] — An indictment for stealing lambs is sustained by proof that the carcases were found in the owner's ground, and only the skins taken away. Rex v. Bawlins, 2 Bast, P. C. 617. Carcases of.] — Sec post, col. 344. iii. Deer. Stealing Deer in TTninclosed Forests.] — By 24 & 25 Vict. c. 96, s. 12, whosoever shall unlawfully and wilfully course, hunt, snare or carry away, or Mil or wound, or attempt to hill or wound, any deer kept or being in the uninclosed part of any forest, chase or purlieu, shall for every such offence, on conviction thereof before a justice of the peace, forfeit and pay such s^im, not exceed- ing 50Z., as to the justice shall seem meet ; and whosoever having been previously con/vieted of any offence relating to deer, for which a peni- niary penalty shall have been imposed by thix or by any former act of Parliament, shall after- wards coumvit any of the offences hereinbefore ermmeratcd , whetlier such second offence be of the same description as the first or not, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without liard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. (^Former provision, 7 & 8 Geo. 4, c. 29, s. 260 In Inclosed Grounds,] — By s. 13, whosoever shall unlawfully cfnd wilfully course, hunt, snare or carry away, or hill or wound, or at- tempt to hill or wound, any deer kept or being in the iiiclosed part of any forest, chase or purliev, Digitized by Microsoft® 339 CRIMINAL LAW — Larceny and Receivers. <»■ m miy inclosed Imul wkefe deer shall he iisvmUi/ liept, sTubll U guilty of felony, and, leiufj eonmeted thereof, shall he liahle, at the disere- tion of the cmirt, to be imprisoned for any term not exceeding two years, loith or loithout hard labour and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whippinq. (Former provision 7 & 8 Geo. i, o. 29, s. 26.) Unlawfal Fosgession of Venison.] — As to ioJtat is a suspicious possession of reninon, see s. 14. Setting En§fines for Taking or Killing.]— By s. 15, whosoerer shall unlawfully atid loilfully set or use any snare or engiiie whatsoever, for tlie purpose of tahing or hilling deer, in any part of any forest, chase or purlieu, whether such part be inclosed or not, or in any fctwe or hank dividing the same from any land adjoin- ing, or in any inclosed land where deer shall be u^ally kept, or slmll unlawfully and icilfully destroy any part of tlie fence of any laiul loliere any deer shall be then hept,' sJiall on conviction thereof before a justice of the peace, forfeit and pay such sum of money, not eu'ceeding 201., as to the justice sliall seem meet. (^Former provision, 7 & 8 Geo. i, c. 29, s. 28.) What is Deer.] — The term deer includes all lands of deer, all ages and both sexes. Reg. v. Strange, 1 Cox, C. C. 58. Inclosnres.] — An inclosure in the Forest of Dean, made under a statute, for the protection of timber, and surrounded by a ditch and a bank, which were sufficient to prevent cattle from getting into it, but over which the deer could pass in or out at their free will, was an in- closed part of a forest within 7 & 8 Geo. 4, c. 29, s. 26. Reg. v. JtJToney. 2 Kuss. C. & M. 371. The words "wherein deer shall be usually kept " refer to inclosed land only. lb. Convictions.] — On an indictment under 7 & 8 Geo. 4, c. 29, ». 26, for killing a deer after a pre- vious summary conviction, a conviction by two justices of the previous offence was put in : — Held, that such a conviction was good. Rca v. Weale, 5 C. & P. 135. Upon an indictment for a second offence against 42 Geo. 3, c. 107, by killing deer, objec- tions might have been taken to the conviction for the first offence, that it was not in the pro- per county, and that it was not correctly stated in the indictment for the second offence. Rex V, Allen, E. & R. C. C. 513. A commitment under 7 & 8 Geo. 4, c. 29, s. 26, reciting a conviction that the defendant "did unlawfully kill and carry away one fallow deer, the property of her Majesty Queen Victoria, against the form of the statute," was bad for omitting to state that the deer was in the unin- closed part of some forest, chase or purlieu. Reg. V. £i7i^, 1 D. & L. 721 ; 13 L. J., M. C. 43 ; 8 Jur. 271. Deer Keepers.]— By 24 & 25 Vict. c. 96, s. 16, if any person shall enter into any forest, chase or purlieu, wJiether inclosed or not, or into any inclosed land where deer shall be usually kept, with intent unlawfully to hunt, course, wound, kill, .mare or carry away any deer, every person intmsted with the care nf such deer, and any of 840 his assistants, whether in his presence or not> may detnand from every such offender any gun. firearms, snare or engine in his possession, and any dog there brought for hunting, coursing or killing deer, and in case such offender shall not immsdiately deliver up the same, may seize and take the same from him in any of those respec- tive places, or, upon pursuit made, in any other place to tvhieh he may have escaped therefrom, for the use of the oioner of the deer ; and if any such offender shall unlawfully beat or loound any person intmsted with the care of the deer, or any of his assistants, in the execution of anij of the powers given by this act, every such of- fender shall be guilty of felony, and being con- victed thereof shall be liable, at the discretion of tlie court, to be imprisoned for any term not exceeding two years, with or ivithout hard labour, and with or loithnut solitary confine- ment, and, if a male under the age of sixteen years, with or without whipping. {Former enactment, 7 & 8 Geo. 4, c. 29, s. 29.) The 16 Geo. 3, c. 30, s. 9, authorized the seizing the guns of persons carrying them into grounds where deer are usually kept, with intent to . de- stroy them, and made the beating or wounding the keepers, in the due execution of their offices, felony : — Held, that an assistant-keeper had no right to seize the person of one so armed in order to get his gun, without having first demanded his gun ; and, consequently, if such person beat the keeper it was not within the statute, the keeper not being in the due execution of his office. Rex v. Amey, K. & E. G. C. 500. Pulling a deer-keeper to the ground and hold- ing him there while another person escapes, is not a beating of the deer-keeper within 7 & 8 Geo. 4, c. 29, s. 29. Reg. v. Hale, 2 C. & K. ,S2(i. A mere battery is not sufficient to come within this enactment. lb. There must be a beating in the popular sense of the word. lb, iv. Doves or Pigeons. Statute.]— By 24 & 25 Vict. c. 96, s. 23, who- soever sliall unlawfully and wilfully kill, wound or take any house dove or pigeon under such cir- cumstances as shall not amount to larceny at common law, shall, on conviction before a justice of the jteace, forfeit and pay, over and above the value of the bird, any sum not exceeding 21. (Former provision. 7 Sc S Geo. 4, c. 29, s. 33.) This enactment does not apply where the kill- ing, though unla-\\'f ul, is done by the party for the protection of his own property, and under the bona fide belief that he is acting in the exercise of a legal right. Taylor v. Newman, 4 B. & S. 69 ; 9 Cox, C. C. 314 ; 32 L, J., M. C. 186 ; 8 L. T. 424 ; 11 W. E. 752. V. Fish. Statute.]— By 24 & 25 Vict, c. 96, s. 24, who- soever shall unlawfully and wilfully take or destroy any fish in any writer which shall run through or be in any land ad joining or belonging to the dwelling-house of any person being the owner of such water, or having a right of fishery therein, sliall be guilty of a misdemeanor; And whosoever shall unlawfully and wilfully take or destroy, or attempt to take or destroy, anyfi^hin any water not being such as here, n- before mentioned, but which shall be pnnde ■' K 2 Digitized by Microsoft® 341 CEIMINAL LAW— La/rceny and Receivers. 342 property, or in which there shall ie any private right of fishery, shall, on conviction thereof be fore a justice of tlie peace, forfeit and pay, over and abow the value of the fish tahen ordestroyed (if any), such sum of money, not exceeding 51,, as to the justice shall seem meet ; provided, that nothing hereinbefore contained shall extend to any person angling between tlie beginning of the last how hefore sunrise and the expiration of the first hour after sunset; but whosoever shall by angling between the beginning of tlie last hour before sunrise and tlie expiration of the first hour after sunset unlawfully arid wil- fully take or destroy, or attempt to tahe or de- stroy, any fish in any such water as first men- tioned, shall, on conr.iction before a justice of the peace, forfeit and pay any sum not exceed- ing HI., and if in any such water as last men- tioned he shall, on tlie lihe conviction, forfeit and pay any sum-, not exceeding 21., as to the justice shall seeni meet ; and if the boundary of any parish, township or vill shall happen to be in or by the side of any such water as is in this section before mentioned, it sJtall be sufficient to prove that the offence was committed either in the parish, tmonship, or vill named in the indict- ment or information,.or in any parish, township, or vill adjoining thereto, (^Former provision, 7 & 8 aeo. 4, c. 29, s. 36.) By s. 25, if any person sltall at any time be found fishing against the provisions of this act, the owner of the ground, water, or fisliery where such offender shall be so found, his servant, or any person authorized by him, may demund from such offender any rod, line, hooh, net, or other implement for tahing or destfvying fish which shall then be in his possession ; and in ease such offender .shall not immediately deliver lip tlie .same, may seize and tahe the same from him for the use of such owner ; provided, that any person angling against the provisions of this act, between the beginning of the last hour before sunrise and the expiration of tlie first hour after sunset, from whom any implement used by anglers shall be taken, or by whom the same shall be so delivered' up, shall by the tahing or delivering thereof oc exempted from the payment of any damages or penalty for such angling. {Similar to 7 & S Geo. 4, c. 29, s. 35.) By s. 26, whosoever sJtall steal any oysters or oyster brood from any oyster bed, laying, or fishery, being the property of any otlier person, and sufficiently marhed ont or known as such, shall be guilty of felony, and being convicted thereof shall be liable to be punisJied as in the rase of simple larceny ; And whosoever shall unlawfully and wilfully u.ie any dredge, or any net, instilment, or engine whatsoever, within tlie limits of any oyster bed, laying, or fishery, being tlie property of any other person, and sufficiently marhed out or hnown as .inch, for the puipose of tahing oysters or oyster brood, although none shall be actually tahen, or sliall unlawfully and wilfully, with any net, instrume^it, or engine, drag upon the ground or soil of any such fishery , shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to he imprisoned for amy term not exceeding three months, with or without hard labour, and with or without solitary confinement ; And it shall be sufficient in any indictment to describe either by name or otherwise the bed, jisliery in which any of tlie said offences sliall have been commiittcd, . without stating tlie same to be in an^/ particular parish, township, or vill; provided, that nothing in this section contained shall prevent amy person from catching or fishing for any floating fish within the limits of any oyster fishery with amy net, instrument, or engine adapted for tahing Indictment.] — Semble, an indictment on 5 Geo. 3, c. 14, s. 1, for stealing fish out of a river running through an inclosed park, need not hare stated the ways, means, or devices by which the fish were taken. B,ex v. Carradicc, E. & E. C. C. 205. Place where Fish are Bred, Kept, and Pre- served.] — On an indictment on 5 Geo. 3, c. 14, s. 1, for entering an inclosed park, and taking fish bred, kept, and preserved there, in the river Kent, running through the park, it appeared that the park was walled round, except where the river entered aiid passed out, and that there were fences to keep in the deer, that there was nothing to keep in the fish, that they were not known to breed there, that nothing was done to stock the river, but that persons were never suffered to angle in the park without leave : — Held, that this was not a place where fish were to be considered as "bred, kept, or preserved" within the meaning of the act. lb. Stream in Inclosed Ground.] — A stream of water running by the side of a piece of ground, which is inclosed on every side except that on which it is bounded by the water, was not a stream in inclosed ground, within 5 Geo. 3, c. 14, s. 3, so as to subject a person fishing therein to the penalty inflicted by that act. Leslie v. Brown, 1 Marsh. 127 ; 5 Taunt. 440. Proof of Oifence.] — ^A. defendant formed an oyster-bed in a part of the Menai Straits where persons had been accustomed to dredge for oysters. The plaintiff bought of a dredger a quantity of oysters, when the defendant, having been informed that the oysters were taken from his bed, gave the plaintiff into custody on a charge of having in his possession stolen oysters. The plaintiff having been discharged, brought an action for false imprisonment, when the defendant relied on 7 & 8 Geo. 4, c. 29, s. 36 ; and, in order to shew that he acted bonS, fide and under the belief that the oysters were stolen, he tendered in evidence the record of the convic- tion of a person who had shortly before been tried for taking oysters from the same bed of the defendant : — Held, that the record, merely as such, was inadmissible. Thomas v. Russell, 9 Ex. 764 ; 2 C. L. E. 542 ; 23 L. J., Ex. 233. To try a Right.]— A person who fished in a fishei7 belonging to another, but to which he haia claim, for the purpose of giving occasion to an action in order to try the right, was not liable to a penalty under 5 Goo. 3, c. 14. Kin- nsrsley v. Orpe, 2 Dougl. 517. Convictlon-»-Ponn of.] — ^A conviction under 5 Geo. 3, c. 14, for killing fish in a private river, without the consent of the ovraer, should state the offence to have been committed in an in- closed ground. Wiclies v. Clutterhueh, 10 Digitized by Microsoft® 343 CRIMINAL liAW— Larceny and Receivers. vii. Birds and other Animals. And that it was without the consent of such °y"er- Rbx v. DaTOojw, 2 B. & A. 378 ; 1 Chit. 147 ; 6. P., Rex v. Corden, 2 Burr. 2279. _ So, a conviction on the same statute, for fish- ing without consent of the owner, " in part of a certain stream which runs between B. in the parish of A., in the county of W., and C, in the same parish and county," quashed, because it did not appear that the intermediate course of the stream between the two termini in which the offence was alleged to be committed was in the county of W., and within the jurisdiction of the convicting magistrate. JRaix v. Edwards, 1 Bast, 278. Objection to a conviction for unlawfully taking and killing fish, in that it did not allege that the defendant had not the licence or con- sent of the owner ; but that it merely alleged that he took and killed the fish unlawfully and against the- form of the statute, is insufficient, and therefore it was quashed. Rex v. Mallinson, 2 Burr. 679 ; 2 Ld. Ken. 384. vi. Dogs. Statute.] —By 2i & 25 Vict. c. 96, s. 18, who- soever shall steal any dog sliall, on eoimiction thereof isfore two justices of the peace, either ie committed to the common gaol or house of correction, there to be imprisoned, or to be im- prisoned and Ttept to liard labour, for any term not exceeding six months, or shall forfeit and pay, over and above the value of the said dog, such smii of motley, not exceeding 20Z., as to the said justices shall seem meet; and whosoever, having, been convicted of any such offence, either against this or any former act of parliamsnt, shall afterwards steal any dog, shall be guilty of 'sfut " 344 statute.]— By s. 21, whosoever shall steal a7i,y bird, beast, or other animal ordinarily henf. in a ,and being eonricted thereof sliall be liable, at tlie discretion of the court, to be imprisoned for any term not exceeding eighteen months, with or without liard labour. {Former provision, 8 & 9 Vict. c. 47, s. 2.) By s. 19, whosoever sliall unlawfully Jiave in his possession or on his premises any stolen dog, or the shin of any stolen dog, knowing such dog to have been stolen or such shin to be the skin of a stolen dog, shall, on conviction thereof before two justices of the peace, be liable to pay such sum of monerj, not exceeding 201., as to such justices shall seem meet ; and whpsoever, having been convicted of any such offence, eitlier against this or any former act of Parliament, shall afterwards be guilty of any such offence as in this section before mentioned, shall be guilty of a misdemeanor, and being con/meted thereof shall be liable, at tlie discretion of the court, to ie imprisoned for any term not exceeding eighteen months, with or withouf hard labour, (^Former provision, 8 & 9 Vict. c. 47, s. B.) By s. 20, whosoever shall corruptly take any money or reward, directly or indirectly, under pretence or upon account of aiding any person to recover any dog which shall liave been stolen, or which shall be in tlie possession of any person not being the owner thereof, shall be guilty of a misdemeanor, and being convicted thereof shall ie liable, at the discretion of the court, to be im- prisoned for any term not exceeding eighteen months, with or without hard labour. {Former provision, 7 & 8 Vict. c. 47, s. 4.' ,1 with intent Digitized by Microsoft® . or oilier ammal ora. ^ .,„ , , state of confinement or for any domestic piirpose , not being the subject of larceny at common law, or sliall wilfully kill any such bird, beast or animal, with intent to steal the same or any part thereof, sliall, on conviction thereof before a justice of tile peace, at the discretion of the justice, cither be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and Itept to hard labour for any term, not exceeding six months, or else shall forfeit and pay, over and above tlie value of the bird, beast, or other animal, such sum^ of money not exceeding 201., as to tlie justice sliall seem meet ; and whosoever, liamng been convicted of any such offence, either against this or any former act of Parliament, sliall afterwards commit an/y offence in this section before mentioned, and shall be convicted thereof in like manner, shall be committed to the com- mon gaol or house of correction, there to be kept to liard labour for smeh term not exceeding twelve months as the oowvicting justice shall tMnkfit. • By s. 22, if any sueli bird, or any of the plumage tliereof, or any dog, or any such beast, or the skin tliereof, or any such animal, or any part tliereof, sliall be fownd in t]ie 2>ossession or on the premises of any person, any justice may restore the same respectively to the owner tliere- of ; and any person in whose possession or on whose premises such bird or the plumage thereof, or such beast or the skin thereof, or such animal or any part thereof shall be so found {such per- son knowing tlmt the bird, beast, or animal has been stolen, or that the plumage is tlie plumage of a stolen bird, or tliat the skin is the skin of a stolen beast, or that the part is a part of a stolen animal), shall, on conviction before a justice of the peace, be liable for the first of- fence to such forfeiture, and for every subse- quent offence to such punishment, as any per- son con/oieted of stealing any beast or bird is made liable to by the last preceding section. viii. Carcases or Skins. Statute.]— By 24 & 25 Vict. c. 96, s. 11, who- soever shall wilfully kill any animal, with intent to steal the carcase, sldn or any part of the animal so killed, shall be guilty of felony, and being convicted thereof shall be liable to tlie same punishment as if he had been convicted of feloniously stealing the same, provided the offence of stealing the animal so killed would Imve amounted to felony. (Former provision, 7 & 8 Geo. 4, c. 29, s. 25.) KUlinff with Intent to Steal.]— Where a man was indicted under 14 Geo. 2 c. 6, for killing sheep with intent to steal the whole carcase, proof of killing with intent to steal part of the carcase was sufficient to support the charge. ^62! V. Williams, I'M. C. C. 107. Cutting off part of a sheep whilst it is ahye, with intent to steal such part, will support an m- ^ctment for killing with intent to steal part of thcTarcasc, if the cutting offi must occasion its death Bex v. Glay, R. & R- C- C. 387 On the trial of anlndiotment for killing a ewe with intent to steal the carcase, it appeared that 345 CEIMINAL LAW — Larceny and Receivers. 346 the prisoner wounded the ewe by cutting her throat, and was then interrupted by the pro- secutor, and the ewe died of the wound two days afterwards. It was found by the jury who con- victed the prisoner, that he intended to steal the carcase of the ewe ; and the judges held the conviction right. Reg. v. Sutton, 8 C. & P. 291 ; 2 Lewin, C. C. 272 ; 2 M. C. C. 34. Indictment.]— An indictment charged in the first count, that A. and B. killed a sheep, with intent to steal one of its hind legs ; and, in the second count, that C. received nine pounds weight of mutton so stolen as aforesaid ; and in the third count, that C. received the mutton " of a certain evil-disposed person," scienter, &c. : — Held, that, on this form of indictment, all the three prisoners might be properly convicted. Bex V. Wiecler, 7 C. & P. 170. ix. Fixtures. Statute.]— By 24 & 25 Vict. c. 96, s. 31, lolw- tiitrwr sliall steal, or shall r/p, cut, sever, or hreali with intent to steal, any glass or wood work belonging to any iuilding ivhatsoever, or any lead, iron, coppgr, Irass or other metal, or any utensil or fixture, whether made of metal or other material or of ioth, respeetively fixed in or to any iuilding tohatsoever, or anything made of metal fixed in any land teing private pro- perty, or for u, fenee to any dwelliiig -house, garden or area, or in any square or street, or in any place dedicated to public use or oiiiavtent, or in any burial ground, shall be guilty of felony, and, bein^ coivoicted tliereof shall be liable to be punished as in the ease of simple larceny ; and in the ease of any such thing fixed i7i any such square, street or place as aforesaid, it shall not he iiecessary to allege the same to be the property of any person. (^Former provis'ion, 7 & 8 Geo. 4, c. 29, s. 44.) What is a Building.] — The prisoners were convicted upon an indictment which charged them with stealing lead fixed to a certain wharf. It was proved that the lead stolen formed the gutters of two brick, timber and tile built sheds erected upon the prosecutor's wharf : — Held, that the conviction was good, the lead being fixed to a building within 7 & 8 Geo. 4, c. 29, s. 44. Reg. v. Bice, Bell, C. C. 87 ;. 8 Cox, C. C. 119 ; 28 L. J., M. C. 64 ; 5 Jur., N. S. 273 ; 32 L. T., 0. S. 323 ; 7 W. B. 232. An unfinished building, intended as a cart- shed, which is boarded up on all its sides, and has a door with a look to it, and the frame of a roof with loose gorse thrown upon it, because it is not yet thatched, is a building within 7 & 8 Geo. 4, c. 29, s. 44. Rex v. Worrall, 7 C. & P. 516. A church was a building within 4 Geo. 2, c. 32. Bex V. Hichman, 1 Leach, C. C. 318 ; 2 East, P. C. 593 ; S. P., Bex v.\Par1ter, 2 Bast, P. C. 592 ; 1 Leach, C. C. 320, n. Metal, &c., affixed to land.] — The prisoners were convicted upon an indictment framed under 7 & 8 Geo. 4, c. 29, s. 44, of stealing metal fixed in laud. It was proved that they had stolen a copper sun-dial fixed upon a wooden post in a chuichyard : — Held, that the conviction was right. Beg. y. Jones, Dears. & B. 0. C. 655 ; 7 Cox, C. C. 498 ; 27 L. J., M. 0. 171 ; 4 Jur., N. S. 394. Stealing iron rails from a tomb in a church- yard, not connected by any building with the church, was not within 4 Geo. 2, c. 32, and 21 Geo. 3, c. 68. Bex v. Davis, 2 Bast, P. 0. 593 ; 1 Leach, C. C. 496, n. Semble, that the stealing of brass fixed to tombstones in a churchyard was a felony under 7 & 8 Geo. 4, c. 29, s. 44. Rex v. Rlich, 4 C. & P. 377. Leaden images, on pedestals, fixed in the ground near a summer-house, the summer-house being in an inclosed field (but not within the same inclosure as the house), were not within 4 Geo. 2, c. 32. Rex v. Richards, K. i: R. C. C. 28. A larceny may be committed of window sashes which are neither hung nor beaded into the frames, but merely fastened by laths nailed across the frames to prevent their shaking out ; as they are not fixed to the freehold. Rex V. Hedges, 1 Leach, C. C. 201 ; 2 Bast, P. C. 590, n. By whom Committed — Tenant.] — A person who procured possession of a house under a written agi'eement between him and the land- lord, for a lease of twenty-one years, with a fraudulent intention to steal the fixtures thereto belonging, was, by stealing the lead afBxed to the house, guilty of larceny on 4 Geo. 2, c. 32. Bex V. Munday, 2 Leach, C. C. 850 ; 2 East, P C. 594. Indictment.] — An indictment for stealing a copper pipe fixed to the dwelling-house of A. and B., is not supported by proof of stealing a pipe fixed to two rooms of which A. and B. are separate tenants in the same house. Hex v. Finch, 1 M. C. C. 418. Evidence.] — In support of an indictment for stealing lead fixed to a dwelling-house, proof that the prosecutor received the rent is suf- ficient prima facie evidence of his ownership. Beg. V. Brummitl, L. & C. 9 : 8 Cox, C. C. 413 ; 3 L. T. 679 ; 9 W. R. 357. A person, on a count (in the usual form) for stealing lead afBxed to a building, cannot be convicted of larceny ; and in order to warrant a conviction on such count, the jury must be satis- fied that he uniixed the lead from the building, or was" present aiding and assisting. Beg. v. Cfooch, 8 C. & P. 293. X. Trees, Sh nibs. Vegetables a7id Fences. In Parks, Pleasure Grounds, or Orchards.] By 24 & 25 Vict. c. 96, s. 32, whosoever shall steal, or shall cut, breah, root up, or otherwise destroy or damage with intent to steal, the whole or any part of any tree, sapling, or shrub, or any underwood, respectively gro-wing in any parh, pleasure-ground, garden, orchard, or avcnve, or in any ground adjoining or belonging to any dwelling-house, shall (in case the value of thr article or articles stolen, or the amount of the injury dime, shall exceed the sum of 11.) be guilty of felony, and being convicted thereof shall be liable to be punished as in the case of ■simple larceny ; And whosoei-cr shall steal, or shall cut, breahy roof up, or otherwise destroy or damage with intent to steal, the whole or any part of any tree, sapling, or shntb, or any underwood, rcspec- Digitized by Microsoft® 347 CEIMINAL LAW — Larceny and Receivers. tircly (jroiuing elsewhere than in any of the sltnatione in this section before mentioned, shall (in case tlie value of the article or articles stolen, or the amount of the injury done, shall e.eeeed the sum of 51.') be guilty of felony, and being convicted thereof shall be liable to be punished as in the case of sim.ple larceny. (Similar to former provision, 7 & 8 Geo. 4, c. 29, s. 38.) Adjoining any Dwelling-house.]— In 7 & 8 Geo. 4, 0. 29, s. 38, the words " adjoining any dwelling-lioiise " imported actual contact, and therefore grotmd separated from a house hy a narrow walk and paling with a . gate in it, was not within their meaning. Rex v. Hodges, M. i; M. 341. Garden.] — Whether ground is properly de- scribed as a garden within that section, is a ciuestion for the jury. lb. Amount of Injury — How Ascertained.] — The 24 & 25 Vict. c. 96,. s. 32^ enacts, that whosoever fihall steal or cut, destroy or damage with intent to steal the whole or any part of any tree, &c., shall (in case the value of the article or articles stolen, or the amount of the injury done, shall exceed the sum of 51.') be guilty of felony. In estimating the injury, the amount of the injury done to two or more trees may be added together, provided the trees are damaged at one and the same time, or so nearly at the same time as to form one continuous ti'ansactlon. JRcg. v. ShejJ- herd, 1 L. R., C. C. 118 ; 37 L. J., M. C. 45 ; 17 L. T. 482 ; 16 W. R. 373 ; 11 Cox, C. C. 119. Elsewhere.] — By s. 33, whosoever shall steal, or shall cut, breah, root up, or otherwise destroy or damage with intent to steal, the whole or any pak of any tree, sapling, or shrub, or any under- wood, wheresoever the same may be respectively r/roiving, the stealing of such article or articles, ■ or the injury done, beiwj to the amount of\s. at the least, shall, on conviction thereof before a justice of the peace, forfeit and pay, over and above the value of the art 'tele or articles stolen, or the amount of the injury done, such sum of money not exceeding 51. as to the justice shall seem meet. (^Similar fo 7 & 8 Geo. 4, c. 29, s. 39.) Conviction— Validity of.]— A conviction under the 7 & 8 Geo. 4, c. 29, s. 39, for stealing an ash tree, the property of M., ordered the offender " to forfeit and pay, over and above the value of the tree stolen, os., and for the value of the tree Is. ; and also to pay 11. is. 6d. for costs, to be paid on or before March 19th, and, in default of payment of the sums, to be imprisoned for one month, unless the sums should be sooner paid " It was then ordered, that the 5s. should be paid to the overseer, and the Is. to the person aggrieved, and the 11. is. U. should be imme- diately paid to E., the complainant. The intor- mation had been laid by E. before one magistrate, who had granted a summons, and the case heard, and the conviction made by another. On an action for false imprisonment being bought against the convicting magistrate :— Held, tnat the conviction was not invalidated, first, by reason of its not having taken place upon the information of the person aggrieved. Secondly, nor from its having taken place before a magis- trate who did not receive the original informa- tion Thirdly, nor by the mode of adjudicating 348 as to the costs. Tarry v. Neioman, 2 New Sesp. Gas. 449 ; 15 M. & W. 645 ;-15 L. J., M. C. 160. Fences.]— By s. 34, whosoever shall steal, or shall cut, break, or throw doum with intent to steal, any part of any live or dead fence, or any wooden post, pale, wire, or rail set up or used as a fence, or any stile or gate, or any part thereof respectively, shall, on conviction thereof before a justice of the peace, forfeit and pay, over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money not exceeding 51. as to the justice shall seem meet. (Former enactment, 7 & 8 Geo. 4, c. 29, s. 40.) Suspicious Possession.]— By s. 35, if the whole or any part of any tree, sapling, or shi-ub, or any undonoood, or any part of any live or dead fence, or any post, pale, wire, rail, stile, or gate, or any part thereof, being of the value of Is. at the least, shall be found in the possession of any person, or on the premises of any person. With his knowledge, and such person being taken or svmimmied before a justice of the peace, shall not satisfy the justice that he came lawfully by the same, he shall on conviction by the justice forfeit and pay, over and above the value of the article or articles so fou/iid, any sum not exceeding 21. (Former provision, 7 & 8 Geo. 4, c. 29, s. 41.) Vegetables.] — By s. 36, whosoever shall steal, or shall destroy or damage with intent to steal, any plant, root, fruit, or vegetable production g rowing in any garden, orchard, pleasure ground, nursery ground, hothouse, greenhouse, or con- ■icrvatory, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be inqjrisoned only, or to be imprisoned and hept to hard labour, for any tenn not exceeding six months, or eUc shall forfeit and pay, over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money not exceed- ing 201. as to th e justice shall seem meet. (Former enactment, 7 & 8 Geo. 4, c. 29, s. 42.) Young Fruit Trees.] — The words " plant " and "vegetable production," in that statute, did not apply to young fruit trees. Bex v. Hodges, M. & M. 341. Vegetables not growing in Gardens.] — By s. 37, whosoever shall steal, or shall destroy or damage with intent to steal, any cultivated root or plant used for the food of man or beast, or for medie'ine, or for distilling, or for dyeing, or for or in the course of any manufacture, and grow- ing in any land, open or inclosed, not being a garden, orchard, pleasure ground, or nursery ground, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be impnsmied only, or to be imprisoned and liept to hard labom; for any term not exceeding one month, or else shall forfeit and pay over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money not exceed - inn 20s. as to the justice shall seem meet, and in default of payment thereof, together vnth the costs (if ordered), shall be committed for any term not exceeding one month, unless payment be Digitized by Microsoft® 349 CEIMINAL LAW — Larceny and Receivers. 350 sooner made. (^Former promgion, 7 & 8 Geo. 4, 0. 29, s. 43.) Clover.] — Clover was a plant used for the food of beasts within this enactment. Reg. v. Srmiby, 3 C. & K. 315. 3, Pbesons who may Commit Offence. tt. Clerks or Servants. Statute.]— By 24 & 25 Vict. c. 96, s. 67, wlwso- cver, being a clerTt or servant, or being employed for the purpose or in the capacity of a clerk or servant, shall steal any chattel, money, or valu- able security belonging to or in the possession or power of his master or employer, shall be guilty nf felony, and being convicted tlwreof shall be liable, at the discretion of the court, to be licpt in penal servitude for any term, iiot exceeding fourteen years and not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and imtJi or without solitary confinement, and, if a male under the age of sixteen years, with or vnthout whipping. (Former provision, 7 & 8 Geo. 4, c. 29, s. 46.) Who are Clerks or Servants.] — On the trial of an indictment for larceny as servant, it ap- peared that the prisoner lived in the house of the prosecutor, and acted as nurse to his sick daughter, the prisoner having board and lodging and occasional presents for her seiTices, but no wages. While the prisoner was so residing, the prosecutor's wife gave the prisoner money to pay a coal bill, which money the prisoner kept, and brought back a forged receipt to the coal bill : — Held, that the prisoner was not the servant of the prosecutor, but that this was a larceny of the money. Beg. v. Smith, 1 C. & K. 428. A person employed as a distraining broker, if engaged in the service of the prosecutor only, and paid a salary by him, is a servant within 24 & 25 Vict. c. 96, s. 67. Meg. v. Flanagan, 10 Cox, C. C. 561. A member of two unenrolled benefit clubs, paid as secretary, and intrusted with the funds to deposit in the bank in the joint names of him- self and the treasurer, dishonestly appropriating to himself the sums intrusted to him, cannot be found guilty of larceny as a servant, or of em- bezzlement, or of larceny as a bailee. Reg. v. Harsh, 3 F. & F. 523. The driver of a glass-coach hired for the day is not the servant of the party hiring it, so as to bring him vrithin 7 & 8 Geo. 4, c. 29, s. 46. Rex V. HoAjdon, 7 C. & P. 445. Question for Jury.] — The prisoner lived with the prosecutor as his wrfe, and was authorized by him to draw and sign cheques and bills in his name, he being blind and unable to do this him- self. He entrusted her with a large sum of money to pay into the bank, which she did not do, but appropriated it to her own use : — Held, that the question, whether she was a servant to the prosecutor, was one for the jury. Ren. v. Warren, 10 Cox, C. C. 359. b. Tenants or Iiodg'ers. Statute.]— By 24 & 25 Vict. c. 96, s. 74, whoso- ever shall steal any chattel or fixture let to be used by him or her in or mth any house or lodging, whether the contract sliall have been entered into by him or her or by her JiMsband, or by any person on behalf of him or Iter or her Jmsband, shall be guilty of felony, aiid, being convicted thereof, shall be liable, at the discre- tion of tlie court, to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confine- ment, and, if a male under the age of sixteen years, with or vxithout whipping ; and in case the value of such clucttel or fixtwre sliall exceed the sum of fire pounds, shall be liable, at the discretion of the court, to be kept in penal servi- tude for any term not exceeding seven years and not less than fire years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exeeediny two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or vnthout whipping ; And in every ease of stealing/ any chattel in this section mentioned it shall be lawful to pre- fer an indictment in the common form as for larceny, and in every ease of stealing any fixture in this section mentioned to prefer an indict- ment in the same form, as if the offender were not a tenant or lodger, and in either case to lay the propertrj in the owner or person letting to hire, (i'ormer provision, 7 & 8 Geo. 4, c. 29, s. 45. By 7 & 8 Geo. 4, c. 27, 3 Will. & M. c. 9, wa^ repealed.) Of what Goods— Chattel Changed.] — The pri- soners were tenants and occupier's of a house in which were certain gas-fittings belonging to a public company. It became necessary that a gas-meter should be changed, and the old one was taken doviTi and left in the custody of the prisoners till called for by the company's ser- vant. In the meantime they converted it to their use : — Held, that they could not be con- victed of larceny. Reg. v. Mattheson, 5 Cox, C. C. 276. A tenant stealing goods from a ready-fui'- nished house was not guilty of felony, within 3 Will. & M. c. 9, s. 5. Rex v. Palmer, 2 Leach. C. C. 680 ; 2 East, P. C. 586. 0. Persons in the dueen's Service, or the Police. Statute.]— By 21 & 25 Vict. c. 96, s. 69, whoso- ever being employed in the public service of her Majesty, or being a constable or other person employed in the police of any coniify, city, borough, district, or place whatsoever, shall steal any chattel, money or valuable security belonging to or in the 2)ossession or power of her Majesty, or intrusted to or received or taken into possession by him by virtue oflm employment, shall be guilty of felony, and, beiiig convicted thereof, shall be liable, at the discretion of the court,to be Itept in penal servitude for any term not exceeding fmcrtecn years and not less thanfive years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and mth or without solitary confinement. Amount taken.] — An indictment, framed upon 2 & 3 Will. 4, c. 4, s. 1, alleged that A., being em- ployed in the public service, and intrusted, by virtue of such employment, with the receipt of Digitized by Microsoft® 351 CRIMINAL JjAW— Larceny arid Receivers. money, the property of the Queen, fraudulently applied to his own use 5,000i. so received, and feloniously stole the same. It was proved that ho was an officer of inland revenue, and received certain taxes ; that it was his duty to make re- turns to inspectors, and that these returns, when rendered, shewed a much larger balance in his hands than he was allowed to retain. At last his accounts were examined, and a statement extracted from them was produced to him, shew- ing a balance in his hands of 5,214Z. and a fraction, which he admitted to be correct. He was then asked if he was prepared to hand over that balance, or any part of it, and he said he was not. He was then reminded that there was a balance of 300Z. against him from the previous Monday, which was a receipt day at T. A. then took out a sum of money less than the 300Z., and, on being asked what he had done with the rest, said he had spent it in an unfortunate specula- tion : — Held, that the evidence in respect of the 300Z. was sufficient to sustain a conviction Req V. Moah, Dears. C. C. 626 ; 25 L. J., M. C 66 • 2 Jur., N. S. 213. d. Fost-Office Servants and Others. (7 Will. 4 <5- 1 Vict. c. 36.) What amounts to a Stealing.]— Fraudulently obtaining the mail bags by delivery from one iii the post-office to the prisoner, is a stealing out of the post-office. Rex v. Pearce, 2 East, P. C 603. The horse mail bags, being left by the mail rider after he had taken possession of them for a temporary purpose for two minutes, were stolen during his absence :— Held, within the 52 Geo. 3, c. 143, s. 3. Rex v. Robinson, 2 Stai-k. 485. A letter carrier, whose duty it was, in case he was unable to deliver any letter, to bring it to the post-office on his return from delivery, not having delivered a letter containing money, gave no account of it, and being asked why he had not delivered it, produced it unopened, and the coin safe within, from his trousers pocket, stating, untruly, that the house where it ought to have been delivered was closed^ Upon an indictment for stealing the letter, the jury found him guilty, and that he detained it with the intention of stealing it : — Held, that so dealing with the letter amounted to larceny. Reg. V. Poynton, 9 Cox, C. C. 249 ; L. & C. 247 ; 32 L. J., M. C. 29 ; 8 Jur., N. S. 1218 ; 7 L. T, 434 ; 11 W. E. 73. A person employed in the post-office committed a mistake in the sorting of two letters containing money, and he threw the letters unopened, and the money, down a water-closet, in order to avoid a penalty attached to such mistakes : — Held, that there was a larceny of the lettere and money, and also a secreting of the letters. Reg. V. Wynn, 2 C. & K. 859 ; 1 Den. C. C. 365 ; T. & M. 32 ; 8 New Sess. Cas. 414 ; 3 Cox, C. C. 269 ; 18 L. J., M. C. 51 ; 13 Jur. 107. To constitute the offence of stealing a letter from a place for the receipt of letters, under 52 Geo. 3, c. 143, s. 2, it was essential that the letter should be carried out of the shop which was the place for the receipt of lettera ; and, therefore, if a person took a letter and stole its contents, without taking the letter out of the shop, that was not an offence within that statute. Rex T. Pearson, 4 C. & P. 572. .352 Servants, who aftq-^S. delivered two 5/. notes to D., the wife of the postmaster of C, at which post-office money orders were not granted, and asked her to send them by G., the letter-carrier, from C. to W., in order that he might get two U. money orders for them at the W. post-office D. gave these instructions to G., and put the notes, by his desire, into his bag. G. aftei-wards took the notes out of the bag, and pretended, when he got to the W. post-office, that he had lost them. It was found by the jury that G. had no intention to steal the notes when they were given to him by D. :— Held, that this taking of the notes by G. was not a larceny, the notes not being in his possession in the course of his duty as a post-office servant. Req. v. Glass, 2 C. & K. 895 ; 1 Den. C. C. 215. S., post-mistress of G.,'' received from A. a letter unsealed, but addressed to B., and with it 11. for a post-office order, M. for the poundage on the order. Id. for the postage, and Id. for the pei-son who got the order. S. gave the letter, unsealed, and the money, to the prisoner, who was the letter-carrier from G. to L., telling him to get the order at L. and inclose it in the letter, and post the letter at L. The prisoner destroyed the letter, never procured the order, and kept the money :— Held, that he was indictable for steal- ing, embezzling and destroying a post letter, he being at the time in the employ of the post- office. Reg. V. Bicherstajf, 2 C. & K. 761. If a person, while engaged in gratuitously assisting a post-master, at his request, in sorting the letters, steals one of them, he is liable to the severer penalties imposed by 7 Will. 4 & 1 Vict, c. 36, s. 26, as a person employed under the post- office. Reg. V. Reason, 2 C. L. E. 120 ; 6 Cox, C. C. 227 ; Dears. C. C. 226 ; 23 L. J., M. C. II ; 17 Jur. 1014. A person employed at a receiving house of the general post-ofdce to clean boots, and to assist in tying up the letter bag, was not a servant of the post-office within 52 Geo. 3, u. 148, o. 2. Rex v. Pearson, 4 C. & P. 572. S. was employed by a post-mistress to carry letters from Dursley to Berkeley, at a weekly salary paid him by the post-mistress, but which was repaid to her by the post-office : — Held, that S. was a pereon employed by the post-office within 52 Geo. 3, o. 143, s. 2. Rex v. Salisbury, 5 C. & P. 155. Eeceiving-Houses.] — A receiving-house was not a post-office within 52 Geo. 3, c. 143, s. 2, but it was a place for the receipt of letters, and the whole shop was to be considered as the place for the receipt of letters, and not the mere letter-box ; and therefore if a person took a letter and put it on the shop-counter of the receiving-house or gave it to one of the persons belonging to the shop there, that was a putting the letter into the post. Rex v. Pearson, 4 C. & P. 572. Post Letters, what are.] — The president of a department in the post-office jjut a half-sovereign into aletter, on which he wrote a fictitious address, and dropped the letter, with the money in it, into the letter-box of a post-office receiving- house, where the prisoner was employed in the service of the post-office. The prisoner stole the letter and money : — Held, that this was a steal- ing of a post letter, containing money, and that Digitized by Microsoft® -^i?. CRIMINAJj— LAW — Larceny and Receivers. 354 this was not the ies5 a^jesSTSitfer within 7 Will. 4 & 1 Vict. c. 36, s. 26, because it had a fictitious address. Beg. v. Toting, 2 C. & K. 446 ; 1 Den. C. C. 194. B., an officer in the post-office in London, intending to tiy the honesty of G., the post- mistress of Enstone, went to Oxford, and hav- ing put marked money into a letter, directed " Thomas Hicks, Badford-laue, Exeter," placed this letter in a bundle of letters in the Oxford post-office, which was to go to the Enstone post- office. This letter going in the bundle of letters to the Enstone post-office, G. took out the marked money, and denied any knowledge of the letter. E. neither Icnew any person named Thomas Hicks, nor that there was any such place as Radfoixi-lane in Exeter : — Held, that this was not a stealing of a post letter, but that the taking of the money by G. was a larceny. Reg. V. Gardener, 1 C. & K. 628. Overruled by pre- ceding case. A post-office being at an inn, a person was sent to put a letter, containing promissory notes, into the post. He took it to the inn, with money to pre-pay the postage ; he did not put it into the letter-box, but laid the letter, and the money upon it, upon a table in the passage of the inn, in which passage the letter-box was, and he pointed out the letter to the prisoner, who was a female servant at the inn, who said she would " give it to them." The prisoner, who was not authorized by the inn- keeper, her master, to receive letters for him, stole the letter and its contents : — Held, that this was not a post letter within 7 Will. 4 & 1 Vict. c. 36, ss. 27, 28 ; and that the stealing of the letter and its contents by the prisoner was not an offence within either of those sections. Req. v. Ilarlev, 1 C. & K. 89. An inspector secretly put a letter, prepared for the purpose, containing a sovereign, amongst some letters, *hich a letter-carrier, suspected of dishonesty, was about to sort. The letter-carrier stole the letter and the sovereign : — Held, not rightly convicted of stealing a post letter, such letter not having been put in the post in the ordinary way ; but rightly convicted of larceny of the sovereign, laid as the property of the Post- master-General. Reg. V. Rathbone, 2 M. C. C. 242 ; Car. & M. 220. A. brought a letter, enclosing a lOZ. note, to a district receiving-house, and desired that it might be registered. The post-mistress took the money for the registration, and, being busy at the time, requested A. to call again. In the meantime she 13ut the letter under a glass case, to which the prisoner had access. When the letter was taken up, for the pu;pose of being despatched, it was found that the note had been extracted : — Held, that the letter was a post letter. Req. v. Roaers, 5 Cox, C. C. 293. A. was indicted for stealing a post letter con- taining money, he being a sub-sorter at the general post-office. An inspector of the post-office had put some marked money into a letter, which was then sealed, and stamped with the usual postage stamp. It was addressed to Mr. H., and delivered in at the window of the post-office to another inspector, who handed it to a third. This last locked it up for the night, and on the following morning gave it to a sorter, who, according to his instmctions, secretly placed it among other letters which A. in due courae would have to sort. He opened and secreted the letter, abstracting the money, which was found upon him. It was no part of the ordinary duty of the inspector to receive letters at the window, but the whole scheme was arranged for the detection of A. : — Held, that he could not be convicted of stealing a post letter. Reg. v.' Sliejilierd, Dears. C. (i 606 ; 25 L. J., M. C. 52 ; 2 Jur., N. S. 96. A sei-vant, being sent with a letter, and a penny to pre-pay the postage of it at a receiving- house, found the door shut, and in consequence . put the penny inside the letter, and fastened it in by means of a pin, and then put the letter into an unpaid letter-box. A messenger in the general post-office stole this letter, with the penny in it : — Held, that he might be convicted of stealing a post letter containing money, although the money • was not put into the letter for the purpose of being conveyed, fey means of it, to the person to whom it was addressed. Reg. v. Mcnce, Car. & M. 234. Indictment.] — A post-office order, for the pay- ment of bl. in the ordinary form, is a warrant and order for the payment of money, and may be so described in an indictment for larceny. Beg. v. Gilchrist, 2 M. C. C. 233 ; Car. & M. 224. In an indictment on 7 WUl. 4 & 1 Vict. c. 36, s. 26, for secreting a post letter, it is not neces- sary to state the purpose for which the letter was secreted. Reg. v. Wynn, 2 C. & K. 859 ; 1 Den. C. C. 365 ; T. & M. 32 ; 18 L. J., M. C. 51. Evidence.] — Possession by a letter carrier of a bank note some months after it has been sent by post and lost, is not sufficient evidence of a felonious stealing by him, although not accounted for otherwise than by his mere assertion that he had found it. Reg. v. Smith, 3 P. & F. 123. At the trial of a person on 52 Geo. 3, c. 143, s. 2, for embezzling a letter containing a bill of exchange, he being at the time employed under the post-office, it was sufficient to prove that such person acted in the service of the post-office, and it was not necessary to go into proof of his ap- pointment. Bex V. Rees, 6 C. & P. 606. Betaining Post Letters.] — ^A letter containing a post-office order, directed to John Davies, was misdelivered to John Davis, one of the prisoners. Not being able to read, he took it to W. D., the other prisoner, who read it to him. He then said the letter and order were not for him, but was advised by W. D. to keep them and get the money. Both prisonei's then went to the post-office, ob- tained the money, and appropriated it to their own use : — Held, that a conviction for larceny of the order could not be supported. Beg. v. Davis, Deai-s. C. C. 640 ; 7 Cox, C. C. 104 ; 25 L. J., M. C. 91 ; 2 Jur., N. S. 478. See 7 Will. 4 & 1 Vict. c. 36, s. 31. Where a letter enclosing a cheque was directed to James Mucklow, St. Martiu's-lane, Birming- ham, and no person of that name lived there, but the prisoner lived about ten yards from St. Martin's-lane, and another James Mucklow lived in New Hall-street ; and the prisoner, in conse- quence of a message left by the postman, got the letter from the post-office, and appropriated the cheque to his own use :— Held, that it was not a felonious taking. Rex v. Iljicklow, Car. C. L. 280 ; 1 M. C. C. 160. e. Fraudulent Bailees. Statute.]— By 24 & 25 Vict. c. 96, s. 3, who- Digitized by Microsoft® 355 CRIMINAL LAW — Larceny m^^Receivers. socrer, leing a lailee of any chattel, monoy, or ■callable security, shall fraudulently taJtc or convert the same to his own me, or the use of any person other than the owner thereof, al- though he sImU not h-eak bulk or otJwrwise t/ctermine the bailment, shall be guilty of lar- ircnyi and may be convicted theirof upon an indictment for larceny; but this section shall not extend to any offence punishable on sum- mary conviction. (Former provision, 30 & 21 Vict. u. 54, s. 4.) Who is a Bailee— Keeper of Shire-hall.]— A hall-keeper appointed by the justices, is not bailee of any of the contents of the shire-hall, but is the servant of the inhabitants, and, if he converts to his own use any of the property committed to his care, he may be indicted for larceny. Reg. v, Winbow, 5 Cox, C. C. 346. See also Beg. v. Marsh, ante, col. 349. — — Beceivingr Money on behalf of another.] — A person who receives money on behalf of another, does not thereby become a bailee of the money. Reg. v. Hoare, 1 F. & i\ 647. Beceiving money to buy Goods.] — The prosecutor gave the prisoner money to buy half a ton of coals for him. He bought the coals, and took a receipt in his own name, and used his own horse and cart to fetch them, but on the way home he appropriated a portion of the coals to his own use, and afterwards pretended to the prosecutor that he had delivered to him the full quantity : — Held, that even if it was necessaiy to shew a" specific appropriation of the coals to the prosecutor, there was sufficient evidence of such appropriation, and that the prisoner was rightly convicted of larceny as a bailee. Reg. v. Bunhall, L. & C. 371 ; 9 Cox, C. C. 419 ; 33 L. J.. M. C. 75 ; 10 Jur., N. S. 216 : 9 L. T. 778 : 12 W. K. 414. A carrier who, receiving money to procure goods, obtained and duly delivered the goods, but fraudulently retained the money, may be convicted of larceny as a bailee. Reg. v. Wells, 1 P. & F. 109. The prisoner was employed by the prosecutor to fetch eoals from C. Before each journey the prosecutor made up to the prisoner 24Z.; out of which he was to pay for the coals, keep 23«. for himself, and if the price of the coal, with the 23*., did not amount to 24Z., to keep the balance in hand to the credit of the next journey. It was the prisoner's duty to pay for the coal as he obtained it with the money received from the prosecutor ; and the prosecutor did not know but that he did so ; but provided he was sup- plied with the coal, and not required to pay more than the proper price for it, it was im- material to the prosecutor in what manner the prisoner paid for it. On the 20th March, the prisoner had a balance of 3Z. in hand, and the prosecutor gave him 211. to make up 2il. for the next journey. The prisoner did not buy any coal, but fraudulently appropriated it : — Held, that a conviction for larceny of the 2\l. as a bailee was right. Reg. v. Aden, 29 L. T. 467. Carrier selling part of Goods.] — A carrier employed by the prosecutor to deliver in his (the prisoner's) cart a boat's cargo of coals to persons named in a list, to whom only he was authorized to deliver them, and having fraudulently sold some of ceeds, bailee. R. 679, 356 the c*Js, audr-»pj)*ej,itj^a the yxo- is properly convicted of larceny as a """ """■ " ^' " "" ■"' ^ ■ W. Reg. V. Darifs, 14 L, T. 491 : 14 Delivery of Goods for Sale.]— A person delivered two brooches to the prisoner to sell for him at 200?. for one and 1152. for the othe'r, and he was to have them for a week for that purpose ; but two or three days' grace might be allowed. After ten days had elapsed, he sold them, with other jewellery, for 250Z., but ar- ranged with the vendee that he might redeem the brooches for llOl. before September :— Held, that this amounted to a fraudulent convereion of the brooches to his own use by a bailee with- in 24 .V: 25 Vict. o. 96, s. 3. Reg. v. Henderson, 11 Cox, C. C. 593 ; 23 L. T. 628. A traveller was entrusted with pieces of silk (about 95 yds. each) to cany about with him for sale to such customere as he might procure. It was his duty to send by the next post after sale the names and addresses of the customers to whom any might have been sold, and the num- bers, quantities, and prices of the silk sold. AU goods not so accounted for remained in his hands and were considered by his employers as stock. At the end of each half-year it was his duty to send in an account for the entire six months, and to return the unsold silk Within six months after four pieces of silk had been delivered to him, the traveller rendered an account of the same, and entered them as sold to two persons, with instructions to his em- ployers to send invoices to the alleged customers. It turned out that this was false, and that he had appropriated the silk to his. own use : — Held, that lie could be properly convicted of larceny as a bailee. Reg. v. Richmond, 29 L. T. 408. Delivery of Animals to Sell.] — K drover employed to drive pigs and paid the expenses of di-iving them, being paid wages by the day, but having the liberty of driving the cattle of any other person, is a bailee. Reg. v. Hey, 1. & M. 209 ; 1 Den. C. C. 602 ; 2 C. & K. 983 ; 3 Cox, C. C. 582 ; 14 Jur. 134. Delivery of Bills of Exchange to get Discounted.] — The prosecutor asked prisoner if he could get bills of exchange discounted, and prisoner replied that if prosecutor was a person of credit he could get his discounted. Three bills were then drawn by prisoner payable to his order, which prosecutor accepted, and de- livered to the prisoner to get discounted. The proceeds of the discounting were to be handed to the prosecutor, less the prisoner's commission, or the bills to be returned. The prisoner being pressed by a creditor for a debt, less than the amount of the bill indorsed to him, gave one of the bills in payment, representing it as his own bill, and asking the creditor to discount the balance of the bill. The bill was not indorsed upon the condition of the creditor's discounting the balance ; and the juiy found that it was the prisoner's intention, when he indorsed the bill, to pass the property in it absolutely to the creditor :— Held, that he might properly be con- victed of larceny as a bailee of a bill of ex- change under 24 & 25 Vict, c 96, s. 3. Reg. v. Oxenham, 13 Cox, C. C. 349 ; 46 L. J., M. C. 125 ; 35 L. T. 490. Digitized by Microsoft® 357 CRIMINAJ, LAW- - — .Deljsssy-6««eills of E^hange for Par- ticular Purpose.] — Whilst in treaty with Messra. G. & P. for the sale and transfer of a public- house licence, the prisoner was required by them to give security for the purchase-money before they would assist him in procuring a transfer. To enable him to give the required security, the prosecutor accepted three bills of exchange drawn upon him by the prisoner, which the latter was to deposit with G. & P. by way of security, and not negotiate or use for any other purpose, and if the transfer was not effected, was to return to the prosecutor. The prisoner, instead of depositing them with G. & P., con- verted two of them to his own use : — Held, that he was not a bailee within s. 3 of 24 & 25 Vict. c. 96, and could not be convicted under that section. Meg. V. Cosser, 13 Cox, C. C. 187. Trustee of Friendly Society.] — ^A., who was a trustee of a friendly society, was appointed by a resolution of the society to receive money from the treasurer, and carry it to the bant. He received the money from the treasurer's clerk, but instead of taking it to the bank, he applied it to his own purposes. He was indicted for stealing, as bailee of the money of the trea- surer, and also for a common law larceny, the money being laid as that of the treasurer. The 18 & 19 Vict. c. 63, s. 18, vests the property of friendly societies in the trustees, and directs that in all indictments the property shall be laid in their names : — Held, that A. could not be con- victed of larceny as a bailee. Reg. v. Loofe, Bell, C. C. 259 ; 8 Cox, C. C. 302 ; 29 L. J., M. C. 132 ; 6 Jur., K. S. 513 ; 2 L. T. 254 8 W. R. 422. A member of two unenrolled benefit clubs, paid as secretary, and intrusted with the funds to deposit in the bank in the joint names of him- self and the treasurer, dishonestly appropriating to himself the sums intrusted to him, cannot be found guilty of larceny as a bailee. Reg. v. Marsli, 3 F. & F. 523. Where Summary Proceedings.] — Boot and shoe manufacturers gave out to their work- men leather and materials to be worked up, which were entered in the men's books and charged to their debit. The men might either take them to their own homes to work up, or work them up upon the prosecutors' premises ; but in the latter case they paid for the seats provided for them. When the work was done, they received a receipt for the delivery of the leather and materials and payment of the work. If the leather and materials were not re-delivered, they were re- quired to be paid for. The prisoner Daynes was in the prosecutors' employ, and received mate- rials for twelve pairs of boots ; he did some work upon them, but instead of returning them, sold them to the prisoner Warner. These materials were entered in the prosecutors' books to Daynes' debit, but omitted by mistake to be entered in Daynes' book : — Held, that Daynes coxild not be convicted of larceny as a bailee, under 24 & 25 Vict. c. 96, s. 3, as the offence of which he had been guilty was punishable summarily under 13 Geo. 2, c. 8. Reg. v. Daynes, 29 L. T. 468. Whether Wife can be a Bailee.] — B. was charged with larceny as a bailee. B. was a married woman, living with her husband, and at the request of a lodger in her husband's house Larceny and Receivers. 358 took charge of his box, containing money. She afterwards fraudulently stole the money, and converted it to her own use. The husband knew nothing whatever of the transaction : — Held, that she was guilty of larceny as a bailee. Reg. V. Robson, L. & C. 93 ; 9 Cox, C. C. 29 ; 31 L. J., M. C. 22 ; 8 Jur., N. S. 64 ; 5 L. T. 402 ; 10 W. R. 61. Where husband and wife were jointly indicted for larceny, as bailees, and it was proved that they took charge of the property, but the wife alone disposed of it afterwards : — Held, that neither could be convicted ; the wife, because she could not be a bailee ; the husband, because he was not proved to have taken part in the con- version. Reg. y. Benmour, 8 Cox, C. C. 440. But see preceding case. Deed Entrusted to a Professional Person for the purpose of Transfer of Mortgage.] — The prosecutor advanced money to the prisoner, a solicitor's clerk, upon the deposit of a deed con- veying the equity of redemption to the prisoner i^n a house of his own, and subsequently, he ob- tained a legal mortgage from him as security for the sums so advanced. The prisoner then ob- tained from the prosecutor the deed conveying the equity of redemption on the representation that he had found a person who would take a transfer of the mortgage. The prisoner then obtained 140Z. fi-om another person on the de- posit of the deed with him without notice of the prosecutor's mortgage, and appropriated the money to his own use. The judge at the trial directed the jury that the prisoner was a bailee of the deed, and the jury found that he had fraudulently converted it to his own use : — Held, that the direction was right, and that the prisoner was properly convicted of larceny as a bailee. Reg. v. Tmikinson, 14 Cox, C. C. 603 44 L. T. 821 ; 45 J. P. 814. Bailment — ^Betnm of Specific Things.] — A bailment under this section has reference to something deposited with another to be returned in specie, and does not apply to the case of a treasurer of a money club, who is under no obli- gation to return to the members the specific coins intrusted to him. Reg. v. Hassall, L. & C. 58 ; 8 Cox, C. C. 491 ; 30 L. J., M. C. 175 ; 7 Jur., N. S. 1064 ; 4 L. T. 561 ; 9 W. E. 708. S. P., Reg. V. Garrett, 8 Cox, C. C. 368 ; 2 F. & F. 14. Assent of Bailor.] — A., being somewhat tipsy, lay on the ground, partly asleep, and while in that state saw the prisoner take his watch out of his pocket, which he took no steps to prevent, believing that the prisoner, with whom he had been acquainted for some time, was acting solely from friendly motives : — Held, that this evidence disclosed a sufficient bailment to bring the case within the above enactment. Req. v. Reeves, a Jur., N. S. 716. Money obtained by Fraud.] — An indict- ment charged the prisoner with obtainiag 26Z. 5«., the moneys of H., by false pretences. According to the prosecutor's evidence, he was induced to part with the money on the prisoner's statement that he was to pay 135Z. for a pair of carriage horses. No such averment was contained in the indictment. It was urged that the prisoner might be convicted of larceny as a bailee ; but the money having been obtained by fraud, and Digitized by Microsoft® 359 CEIMINAL LAW — Larceny and Receivers. the prosecutor having parted with all control as well over it as vnth the possession : — Held, that there was no bailment, and that he could not be convicted. Reg. v. Hunt, 8 Cox, C. C. 495. By Licence.] — A bailment under the 21 & 22 Vict. 0. 54, s. 4, does not necessarily mean a bailment by contract, but a bailment by licence is sufficient — per Martin, B. Reg. v. Rolson, L. 6 C. 93 ; 9 Cox, C. C. 29 ; 31 L.'.J., M. C. 22 ; 8 Jur., N. S. 64 ; 5 L. T. 402 ; 10 W. R. 61. No Contract concluded or made.] — The prisoner found two heifers which had strayed, and put them on his own marahes to graze. Soon afterwards he was informed by S. that they had been put on S.'s marshes and had strayed, and a few days after that they belonged to H. The prisoner left them on his marshes for a day or two, and then sent them to a long distance as his own property. He then told S. that he had lost them, and denied all knowledge of them. The jury found (1) that at the time the prisoner found the heifers he had reasonable expectation that the owner could be found, and that he did not believe that they had been abandoned by the owner. (2) That at the time of finding them he did not intend to steal them, but that the inten- tion to steal came on him subsequently. (3) That the prisoner when he sent them away did so for the purpose and with the intention of depriving the owner of them, and appropriating them to his own use : — Held, that a conviction of larceny, or of larceny as bailee, could not be sustained under the above circumstances. Reg. v. Matthews, 28 L. T. 645. Indictment — ^Form.] — A bailee charged with fraudulently converting bailed property under 20 & 21 Vict. 0. 54, s. 4, was indicted in the oi'dinary form as for larceny, with a conclusion contra formam : — Held, good. Reg. v. Haigh, 7 Cox, C. C. 403. Evidence.] — To sustain a charge of larceny by a bailee it is necessary to prove some act of conversion inconsistent with the purposes of the bailment. Reg. v. Jackson, 9 Cox, C. C. 505. 4. Taking in Pakticulah Places. a. From the Person. What a sufficient Asportation.] — See cases ante, col. 327. What is.] — ^A. asked B. what time it was, and B. took out his watch to tell him, holding his watch loosely in both hands. A. caught hold of the ribbon and key attached to the watch and snatched it from B., and made off with it : — Held, no robbery, but a stealing from the person. Reg. V. Mughes, 2 C. & K. 214. On a trial for robbery and stealing from the person, it was proved that the prosecutor, who was paralysed, received, whilst sitting on a sofa in his room, a violent blow on the head from one of the prisoners, whilst the other went to a cup- board in the same room and stole therefrom a cash-box : — Held, that it was a question for the jury whether the cash-box was at the time under the protection of the prosecutor. If so, the charge of stealing from the person would be sustained. Reg. v. Selway, 8 Cox, C. C. 235. 360 A man went to bed with a prostitute, having put his watch in his hat on the table; the woman stole, the watch while he was asleep : Held, that the ofience was not a stealing from the person. Reg. v. Hamilton, 8 C. A: P. 49. b. In a Dwellinir-house. To the Value of 51.]-— By 24 & 25 Vict. c. 9G, s. 60, whosoen'f shall steal in any dwelling -Iwiise any chattel, money, or valuaUe seeiiHty (as to interpretation of this word, see s. 1) to tin- vahie in the whole of 51. or more, shall he gnilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to he kept in penal servitude for any term not exceeding fourteen years and not less than five years (27 & 28 Vict. e. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confine- ment. {Former provisions, 7 & 8 Geo. 4, c. 29, s. 12, and 12 Anne, st. 1, c. 7, respectively repealed^ How Value Ascertained.] — If a prisoner, who was in the service of the prosecutor, stole a quantity of lace in several pieces, the pieces together being above U. in value, and brought them all out of his master's house at the same time, this was a capital offence, although it was shewn that the prisoner had the opportunity of stealing the lace by a piece at a time, and that no one of the pieces was worth 5Z. Rex v. Jones, 4 C. & P. 217. Dwelling-house — ^What is. ] — Stealing in a bed- room over a stable in a yard, not under the same roof, nor having any dii'ect communication with the house in which the prosecutor resides, can- not be properly charged as a stealing in his dwelling-house. Rex v. Turner, 6 C. & P. 407. If one, on going to bed, puts his clothes and money by the bed-side, they are under the pro- tection of the dwelling-house, and not of the person ; and, therefore, a party stealing them may be convicted of stealing in a dwelling- house. Rex V. Thomas, Car. C. L. 295. A man went to bed with a prostitute, having put his watch in his hat on the table ; the woman stole his watch whilst he was asleep : — Held, that the offence was that of stealing in a dwelling- house. Reg. V. Hamilton, 8 C. & P. 49. Things under Protection of House.] — Under 12 Anne, St. 1, c. 7, the larceny must have been of things under the protection of the house, and not of any person within it, therefore not of money in the pocket. Rex v. Owen, 2 East, P. C. 645 ; 2 Leach, C. C. 572. Property left by mistake at a house and delivered to the occupier, under the supposition that it was for one of the persons in the house, is entitled to the protection of the house. Rex V. Carroll, 1 M. C. C. 89. Guest's Goods Stolen by Lodger.]— The goods of a lodger's guest are under the protection of the dwelling-house ; therefore a lodger who invites a man to his room, and then steals his goods to the value of 40«. (now ol.~) when not about his person, is liable to be found ginlty of stealing in a dweUing-house. Rex v. Taylor R. & B. C. C. 418. Digitized by Microsoft® 361 CRIMINAL LAW — Larceny and Receivers. 362 stolen by Owner.] — Stealing in a dweUing- " hoiise' to- the value of SI. or more by the owner of the house ira'! within 7 & 8 Geo.'lr<^. 39, s. 12. Reg. y. Sowden, 2 'Mr C- a 285 ; 1 C. & K. 147. Indictment — Whose Swelling -house and Goods.] — ^A member of a club was indicted for stealing some of the plate used at the club-house. The house-steward slept in the house, and stated, that he had the charge of all the plate, and was responsible for it; but the plate was delivered every night to the under-butler, who was ap- pointed by the club, and by him placed in a chest in the pantry. The indictment described the goods as the property of the house-steward, and alleged It to have been stolen in his dwelling- bouse : — Held, that upon the evidence, it Aras wrong in both respects, inasmuch as his sleeping in the house was only as a servant of the club, and his alleged responsibility was not coupled with any custody pi the property, either by him- self or his own servants. S,eg. v. Ashley, 1 C, & K. 198. Two Counts.] — A. and B. were found guilty on an indictment containing two counts — one for stealing in a dwelling house above the value citol., and the other for simple larceny, and the judgment was, that they should be transported for ten yeai-s for the felony aforesaid : — Held, that the judgment was bad ; as either the indict- ment alleged one felony in two counts, in which case the judgment was bad for uncertainty, the court not having the power to apply it to the particular count in the indictment which would support it ; or, it alleged a separate felony on each count, in which case, the jury having found but one offence, the judgment is bad, because the word felony cannot be treated as nomen coUectionis. C'amptell v. Seg. (in error'), 2 New Sess. Cas. 297 : 11 Q. B. 799 ; 15 L. J., M. C. 76 ; 10 Jul'. 329. Particular Goods need not be Specified.] — In an indictment for attempting to steal goods in a dwelling-house, it is not necessary to specify any particular article or articles. A general allegation of an attempt to steal " goods and chattels " is sufficient. Reg. v. Johiuon, L. & C. 489 ; 34 L. J., M. C. 2-t ; 10 Jur., N. S. 1160 ; 13 W. K. 101. With Menaces or Threats.] — By 24 & 25 Vict, c. 96, s. 61, whosoever shall steal any chattel, money or valuaMe security in any dwellimj- house, and sliall hy any menace or threat pint any one ieing therein in bodily fear, shall ie gniltg of felony, and, being convicted thereof, shall he liable, at the discretion of the court, to be hcpt in penal servitude for any term not exceeding fowi'teen years, and not less tlian five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary con- finement. {Former provision, 7 Will. 4 & i Vict. c. 86, s. 5.) Indictment.] — An indictment for stealing in the dwelling-house, persons being therein and put in fear, must state that the persons were put in fear by the prisoners. Rex v. Mherinrjton, 2 Leach, C. C. 671 ; 2 Bast, P. C. 635. Who are Principals.] — In order to consti- tute the offence of stealing in a dwelling- house, and by menaces and threats putting persons being therein in bodily fear, it is not necessary that all the persons engaged in the crime should be actually in the house ; and if one remains outside he may be equally guilty of using menaces and threats if there was a com- mon purpose to inspire terror. Reg. v. Mnrphy, 6 Cox, C. C. 340. Evidence.] — ^A threat to a person outside the house is not within the words of the statute, but it is a circumstance from which the jury may infer the line of conduct inside the house. lb. The act of placing pei-sons with their faces against a wall, and desiring them not to look round, without the use of any actual violence, is evidence of an intention to obtain money by threats, and the bodily fear- may be infeiTed, although the persons so treated may deny that such acts created alarm or fear. lb. u. In SEauufactories. Statute.]— By 24 & 25 Vict. c. 96, s. 62, whoso- ever shall steal, to the value of Vis., any woollen, linen, hempen or cotton yarn, or any goods or article of silk, woollen, linen, cotton, alpaca, or mohair, or of any one or more of those materials mi.red with each other, or mixed toith any other material, whilst laid, placed or exposed, during any stage, process or pirogress of mamifacture.in any building , field or other place, shall be guilty of felony, and being convicted tlicreof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding four- teen and not less than five years (27 & 28 Vict, c. 47), or to be imprisonedfor any term not exceed- ing two years, with or without hard labour, and with or without solitary confinement. (Former provision, 7 & 8 Geo. 4, c. 29, s. 16.) Goods Laid or Exposed during Process.] — Where, on an indictment on 18 Geo. 2, c. 27, for stealing yarn out of a bleaching-ground, it ap- peared that the yam had been spread on the ground, but at the time of the theft was in heaps, in order to be carried into the house : — Held, that as there was no occasion to leave it in that state, it was not within the statute, which uses the words, " laid, placed, or exposed, during any stage, process or progress of manu- factm-e, in any building, field, or other place." Bex V. JETugill, 2 Euss. C. & M. 245. Building used for Manufacturing.] — On an indictment on 18 Geo. 2, c. 27, for stealing calico placed to be printed, &c., in a building made use of by a calico piiuter, for printing, drying, &c. : — Held, that in order to support the capital charge, it was necessary to have proved that the building, from which the calico was stolen, was made use of either for printing or drying calico. Rex v. Dixon, R. & E. C. C. 53 ; 1 East, P. 0. 512. Place— What is.]- By 17 Geo. 3, c. 56, s. 10, it shall be la-vrful for any two justices, upon complaint made to them upon oath that there is cause to suspect that purloined or embezzled materials, used in certain manufactures, are concealed in any dwelling-house, outhouse, vard, garden, or other place or places, to issue a search Digitized by Microsoft® 363 CEIMINAL LAW — Larceny and Receivers. 864 •warrant for the search, in the daytime, of every •such dwelling-house, &c. ; and if any such materials, f.suspeoted to be purloined or em- bezzled, are found therein, to cause the same, and the person in whose house, outhouse, yard, ■garden, or other place they are found, to be brought before two justices ; and if the person shall not give an account to their satis- ■faction of how he came by the same, he shall be -adjudged guilty of a misdemeanor : — Held, that I intent, a warehouse occupied for business purposes only, and not within the curtilage of or connected with any dwelliug-house, was a place within the ■section. Beg. v. Edmundson, 2 El. & El. 77 ; 8 Cox, C. C. 212 ; 28 L. J., M. C. 213 ; 5 Jur., N. S. 1351. Evidence of other Cases.] — Held, secondly, that although, for the sake of con- venienQe, in trying the prisoner the^judge might direct the jury to confine their attention to one particular charge, yet~ that the prosecutor was entitled to give evidence in support of all the charges in the indictment. lb. Held, thirdly, that proof of such charges might be relied on, in order to shew a felonious lb. d. From Stines. From Ships in Ports or on Na'vig'a'ble Bivers or Wharves. Statuiftw soever sliai _vi>ir- the ore of hmi.^ .■-!/ lajth calnmtnarls, inani/anese, or^lninu/icJi, or ani/ wad, black cawlte, or blach lead, or any eoal or cunnel coal, Jrom any mine, bed, or rein thereof reKpectheUj, sliall be guilty of felony, and, being concirtcd iliereof, sliall be liable, at the discretion of the cowrt, to be imprisoned for any term not exceed- ing two years, ivith or without hard labour, and with or without solitary confinement. (Previous enactment, 7 & 8 Geo. 4, c. 29, s. 37.) Eemoval with Intent to Defraud.]— By s. 39, ivhosoever, being employed in or about any mine, .shall taJte, remove, or conceal any ore of any metal, or any lapi^ calaminaris, manganese, mundick, or other mineral found or being in such mine, with intent to defraud any proprietor of or any adventurer m such mine, or any workman or miner employed therein, .<:hall be ■guilty of felony. (^Previous enactment, 2 & 3 'Viet. c. 58, s. 10. Punishvient as in the last. section.') Before this Enactment.]— It is not larceny dEor miners employed to bring ore to the sm-face, and paid by the owners according to the quantity produced, to remove from the heaps of other miners ore produced by them, and add it to their own, in order to increase their wages, the ore «till remaining in the possession of the owners. Rex v. Webb, 1 M. 0. C. 431. Indictment.]— An indictment alleging, that A. B., C. D., and persons employed m a mine, in -the pkrish of, &c., in the county of Cornwall, did ■steal ore, the property of the adventui-era in the flaid mine, then and there being found, does not •sufficiently shew the ore to have been m the mine when stolen. Reg. v. Trevenner, 2 M. & Rob. 476. Trial— Election of Counts.]— Where a prisoner -was indicted in one count for stealing from the mine of H. J. G. coal, the property of H. .J. G., and -in the same count for steal ng from the mines of -thirty other proprietors coal, the Property of each •of suchotherproprietors,andit ^PPeared that all -the coal so alleged to have been stolen, h^ been raised at one shaft: — Held first, that the ' ptisecutor could not ■ be caled upon to elect on which charge he would go to the ]ury. Beg. v. Measdale, 2 0. & K. 765 In Ports or Canals.]— By 24 & 25 Vict. c. 96, 63, whosoever shall steal any goods or iner- ehandise in any vessel, barge, or boat of any descriptioti whatsoever in any haven, or in any mtfuy or discharge, orujyon awynavigaMe 'al, or in any creeh or basin belong- ^fvo or 'minimttnieuting loith any such haven, port, river, or canal, or shall steal any goods or merchandise from any dock, wharf or quay ad- jacent to any such haven, port, river, canal, creek, or basin, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servi- tude for any term, not exceeding fourteen years and not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary eonjinement. (^Former provision, 7 & 8 Geo. 4, c. 29, o. 17.) luggage.]— The luggage of a passenger going by a steamboat, was within the words " goods or merchandise " in 7 & 8 Geo. 4, c. 29, s. 17. Re-r V. Wright, 7 C. & P. 159. Stealing on a Creek.]— An indictment for stealing goods on a navigable river was not satisfied by evidence of a stealing on one of its creeks. Rex v. Pike, 1 Leach, C. C. 317 ; 2 East, P. C. 647. From Ships in Distress.]- By s. 64, whcso- ever shall plunder or steal any j)art of any ship or vessel lohich shall be in distress, or wrecked, .stranded, or east on shore, or any qoods, merchandise, or articles of any kmd belonging to such ship or vessel, shall be gutUy lnd\he ofender m,ay be indicted and tried ther in the county or place in wJiic/i the of- fence shall have been com mitfed, or in any county or place next adjoining. [Former provision, 1 WiU. 4 & 1 Vict. c. 87, s. 8. Punishment as in preceding section.) 1. Abroad or on the High Seas. (24 & 25 Vict. c. 96, s. 115.) Jurisdiction on High Seas.]-If a person is apprehended in a borough for a larceny com- mitted on the high seas, '^f^nLrtei sessions that larceny before the court of quartei sessions of the borough. Reg. v. £««'- 1^- ? . ^- J^f^ '^' Oox C 220 ; 32 L. J., M. C 6o ; 8 Jul, M. S 1185 7 L. T. 336 ; 11 W. R. 40 Piraticallv stealing a ship's anchor and cable i-iraticauy ste-' | ^ ^^^.-^^^^ i^^^, and was a capital ottence oy ^_ ^ triable under 28 Hen. s, c. xo, ^ ,,; j. not extending to this case. Rex v. CuHiny, Digitized by Microsoft® 365 CRIMINAL LAW — Larceny and Receivers. 366 & E. C. C. 123. And see post, JueisdiCTION ' * ^miralty'). ■ OffelB8fe"«C< immit ted AbroadJ— -A person had stolen goods in (jirei' » sey-aija'T5ronght them to England, where he was taken and committed for trial : — Held, that Guernsey not being a part of the United Kingdom, he could not be con- victed of larceny, for having them in his posses- sion here, nor of receiving in England the goods so stolen in Guernsey. Beg, v. Dehidel, 11 C. C. 207. If a larceny is committed out of the kingdom, though within the king's dominions (e. g.' in Jer- sey), bringing the things stolen into this king- dom will not make it larceny here. Sex v. Prowes, 1 M. C. C. 349 ; S. P., Beg. v. Madge, 9 C. & P. 29. Some securities were transmitted on 2nd June by the prosecutor to a customer in Paris ; they were traced saiely as far as Calais, and were stolen from the train after leaving that place ; on the 4th September the prisoner was found dealing with them, and was tried in England for larceny and feloniously receiving : — Held, that the court had no jurisdiction, and that the prisoner must be acquitted. Beg. v. Carr (No. 1), 15 Cox, C. C. 131, n. 5. Indictment. a. Generally. Several Counts.]— By 24 & 25 Vict. c. 96, s. 5, ■it shall ie lawful to insert several eonnts in the same indicttnent against the same person for any number of distinct aets of stealing, not ex- eeeding three, which may have heen committed hy him against the same person luithinthe space of six months from the first to the last of swch acts, and to proceed thereon for all or any of thi-m. {Similar to 14 & 15 Vict. u. 100, s. 16.) Things Stolen at same Time — Two In- dictments.] — Where a person stole two pigs belonging to the same person at the same time, and after being convicted and punished for steal- ing one of the pigs, was indicted at a subsequent assize for stealing the other : — Held, that this might legally be done ; but semble, that in such a case, tiie second prosecution ought not to be proceeded with. Beg. v. Srettell, Car. & M. 609. Statement of Value.] — By 24 & 25 Vict. c. 96, s. 2, every larceny, whatever be the value of the property stolen, shall be deemed to be of the sa/me nature, and shall be subject to the same incidents in all respects as grand larceny was before the 21st of June, 1827 y and every court whose power as to the trial of larceny was before that time limited to petty larceny, shall have power to try every ease of larceny, tiie punishment of which cannot exceed the punisJi- 7nent prescHbed for simple larceny, and also to try all accessories to stcoh larceny. The original distinction of grand and petty larceny made it necessary, in indictments for larceny, to allege the value of the chattel stolen, in order to allot the punishment. Beg. v. Gam- ble, 16 M. & W. 384. Though, to make a thing the subject of an indictment for a larceny, it must be of some value, and stated to be so in the indictment, yet it need not be of the value of some coin knovra to the law, that is to say, of a farthing at the least. Beg. v. Morris, 9 C. & P. 349. Servant.] — ^An indictment charged that A. on^ &c., being the servant of K., on the same day, &c., one gold ring, &c., then and there being his goods and chattels, feloniously did steal : — Held,, that the fair import of the charge was, that A. was the servant of K. at the time when the theft was committed. Bex v. Somerton, 7 B. & C. 463. An indictment charged that the prisoner, whilst a servant of A., stole the money of A. The prisoner was not the servant of A., but the servant of B., and the money which he stole was the money of B., but in the possession of A. as the agent of B. : — Held, that the allegation as to the prisoner being servant might be rejected as surplusage, and the prisoner convicted of simple larceny, the money being properly alleged to belong to A., who had a special property therein. Beg. V. Jennings, Dears. & B. C. C. 447 ; 7 Cox, C. C. 397 ; 4 Jur., N. S. 146. Esquire.] — If goods are laid in an indictment as " the property of A. W. G., Esq.," the addition is not material, and if he is not an esquire, it is no ground for an acquittal. Bex v. Ogilvie, 2 C. & P. 230. Felonionsly taken from Company.] — In an in- dictment against a servant of the West India Dock Company, for stealing a quantity of can- vas and hessen belonging to the company from their warehouses, it was sufficient to state the property to be "the goods and chattels of the West India Dock Company," and not necessary, notwithstanding the words of the 1 & 2 Will. 4, c. lii. s. 133, to allege, in addition, that it was feloniously taken from the company. Beg. v. Stoke, 8 C. & P. 151. Feloniously — Partnership Property Stolen.] — An indictment under 31 & 32 Vict. c. 116, s. 1, alleging that B. was a member of a co-partner- ship consisting of B. and L., and that B. being a member, eleven bags of cotton waste, the pro- perty of the co-partnership, feloniously did steal, take and carry away, contrary to the statute, is not bad for introducing the word " feloniously." Beg. V. Butterworth, 12 Cox, C. C. 132 : 25 L. T. 850. Contra Formam Statuti.] — By 7 & 8 Geo. 4, c. 29, s. 25, if any person shall steal any horse, mare, &c., or shaU wiUully kiU any of such cattle with intent to steal the carcase, every such offender shall be guilty of felony, and on conviction suffer death. The 2 & 3 Will. 4, c. 62, s. 1, reduced the punishment to transportation for life ; and 7 Will. 4 & 1 Vict. c. 90, s. 1, to transportation for not less than fifteen years. An indictment charged a person with feloniously stealing a mare, saddle and bridle, and did not conclude- contra formam statuti. A verdict of guilty was found :— Held, that, as stealing the mare, as well as stealing the saddle and bridle, was a felony at common law, and not created or altered in its nature by statute, the ofEence was correctly de- scribed in the indictment, and the statutable punishment of fifteen years' transportation would attach to the stealing the mare. Williams v. Digitized by Microsoft® 367 CEIMINAL LAW — Larceny and Receivers. 368 Reff. (^in error"), 7 Q. B. 251. c. 100, s. 24. See 14 & 15 Vict. Amendment, when Allowed.] — A man was in- dicted for stealing Bineteen shillings andsixpence. He was proved to have stolen a sovereign : — Held, that. by 14 & 15 Vict. o. 100, s. 1, the court at the trial had power to amend the indictment, if necessary, by substituting the word " money " for the words " nineteen shillings and sixpence," and that by s. 18 the indictment so amended was proved. Reg. v. GrniMc, 2 L. R., 0. C. 1 ; 42 L. J., M. C. 7 ; 27 L. T. 692 ; 21 W. R. 299. If in an indictment for larceny the property of the goods is laid in A., and the property is proved to be in the London Dock Company, this was amendable under 14 & 15 Vict. c. 100, s. 1. Reg. V. Vinosnt, 3 C. & K. 246 ; 2 Den. C. C. 464 ; 5 Cox, C. C. 537 ; 21 L. J., M. C. 109 ; 16 Jur. 457. If an indictment for larceny does not state to whom the goods belong, it cannot be amended, nor is the defect cured by 14 & 15 Vict. c. 100, s. 8. Reg. v. Ward, 7 Cox, C. C. 421. b. Desciiption of Thing Stolen. Description of Instrument.] — By 14 & 15 Vict. c. 100, s. 5, in any indictment for stealing, destroying, or concealing any instrument, it shall be sufficient to describe sucJi instrument by any name or designation by u'liiclt the same may be usually known, or by the purport tliereof, without setting out any copy, or facsimile thereof, or otherwise describing the same or the value thereof. Socmnent of Title to Lands.] — By 24 & 25 Vict. c. 96, s. 28, in any indictment for any such offence relating to any document of title to lands, 'it shall be sufficient to allege such document to be or to contain evidence of the title or of paH of the title of tlie person or of some one of the per- sons having an interest, whether rested or con- tingent, legal or equitable, in the real estate to xohich the same relates, and to mention mch real estate or some part thereof. (^Former provision, 7 & 8 Geo. 4, c. 29, s. 23.) Valuable Security not relating to Land.] — A prisoner was convicted on an indictment under 24 & 25 Vict. c. 96, s. 27, for stealing a valuable security, to wit, an agreement between L. and C, whereby C. was entitled to receive payment of certain sums of money, and which sums were then due and unsatisfied to C. The sums were not due till some time after the steal- ing:— Held, that since this section limits the term valuable security to securities other than a document of title to lands, it is material in an indictment under this section to describe the valuable security, so as to shew that it is within the section, that the description given ought to have been proved, and that, since it had not been proved, the conviction could not be sup- ported. Req. V. Lowrie, 1 L. R., C. C. 61 ; 36 L. J., M. C. 24 ; 15 L. T. 632 ; 15 W. R. 360. Coin and Bank Notes.]— By 14 & 15 Vict. c. 100, s. 18, in every indi-etinent in which it shall be necessary to mahe any averment as to amy money, or an/y note of the Bank of England, or any otluir bank, it slholl be sufficient to describe Kuch money or bank note simply as money, Digitized by Microsoft® without specifying any particular coin or bank note ; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank note, although the particular species of coin of which such amount ivas composed, or the particular nature of the hank note, shall not be proved. ■Notes not in Circulation.] — Bank notes are properly described in an indictment for larceny within this enactment as money, although at the time when they were stolen they were not in circulation, but were in the hands of the bankers themselves. Reg. v. West, Dears. & B. C. C. 109 ; 7 Cox, C. C. 183 i 26 L. J., M. C. 6 ; 2 Jur., N. S. 1123. Specific Coins.] — ^An indictment, charging a stealing of one or more specific thing or things, is not supported, except by proof of some one or more of the specific things so charged. Reg. v. Bond, 1 Den. C. C. 517 ; T. & M. 242 ; 4 JSfew Sess. Cas. 143 ; 19 L. J., M. C. 138 ; 14 Jur. 390. Therefore, an indictment charging a stealing of 70 pieces of the current coin of the realm, called sovereigns, of the value of 101., 140 pieces, called half-sovereigns, 500 pieces, &c., called crowns, &c., is not supported by proof of a stealing of a sum of money consisting of some or other of the coins mentioned in the indictment, without proof of some or one or more of the specific coins there charged to have been stolen. lb. Of the Goods and Chattels of A.] — In aii indictment for larceny, two shillings stolen were described as " two pieces of the current silver coin of the realm, called shillings, of the value of two shillings, of the goods and chattels of S. F. :" the words " goods and chattels " may be rejected as surplusage, and the indictment is good. Reg. v. Radley, 3 New Sess. Cas. 651 ; T. & M. 144 ; 1 Den. C. C. 450 ; 2 C. & K. 974 ; 3 Cox, C. C. 460 ; 18 L. J., M. C. 184; 13 Jur. 544. Before this Enactment.] — ^An indictment for stealing lOZ. in moneys numbered was not suffi- cient ; some of the pieces of which that money consisted should be specified. Rex v. Fry, E. & R. C. C.482. ^ ^ , If the thing stolen was described as a bank post bill, and was not set out, the court could not take judicial notice that it was a promissory note, or that it was such an instrument as under 2 Geo. 2, c. 25, might be the subject of larceny, although it was described as made for the pay- ment of money. Rjix v. Cliard, R. & E. C. C. 488. Where an indictment described a bank note as signed by A. H. for the Governor and Company, of the Bank of England, and a prisoner was con- victed ; such conviction was bad, there bemg no evidence of A. H.'s signature. Rex v. Craven, R & R. C. C. 14 ; 2 Bast, P. C. 601. Dollars or Portugal money, not current by pro- clamation, were not goods within 2t .Geo. 2, c. 45. Rex V. Leigh, 1 Leach, C. G. bi ; b. Jr-., Rex V. Grimes, 2 East, P. C. 646. Amount of Money Stolen.] — The prosecutor bought a horse, and was entitled to the return of 10*.: chap money, out of the purchase-money. The prosecutor, afterwards, on the same day, met the seller, the prisoner, and others, and asked CEIMINAL LAW — Larceny and Receivers. 369 the seller for the 10«., Imt he said he had no change, and offered the prosecutor a sovereign, who coiildnotchange.it. The prosecutor asked whether anyone present could give change. The prisoner said he could, but would not give it to the seller of the horse, but would give it to the prosecutor, and produced two half-sovereigns. The prosecutor then offered a sovereign with one hand to the prisoner, and held out the other for the change. The prisoner took the sovereign ahd pat one half-sovereign only in the prosecutor's hand, and slipped the other into the hand of the seller, who refused to give it to the prosecutor, and ran off with it : — Held, that the indictment rightly charged the prisoner with stealing a sovereign. S,eg. v. Twist, 29 L. T. 546. The prisoner was the daughter of the proprie- tor of a " merry-go-round," and was in charge thereof, and the price of a ride thereon was one penny for each person. The prosecutrix got into the machine and handed to the prisoner a sove- reign in payment of the ride, asking for the change. The prisoner gave the prosecutrix elevenpence, and the merry-go-round being about to start, said she would give her the rest of the change when the ride was over. The prosecu- trix assented to this, and about ten minutes after, when the ride was over, found the prisoner at- tending to a shooting gallery, and asked her for her change, when the prisoner replied that she had only received a, shilling from her, and de- clined to give any more. The indictment charged the prisoner with stealing nineteen shillings in money of the moneys of the prosecutrix. The prisoner was convicted of stealing the nineteen shillings : — Held, by a majority of the judges, that the conviction was wrong and must be quashed. Reg. v. Bird, 12 Cox, C. C. 257 ; 42 L. J., M. C. 44 ; 27 L. T. 800 ; 21 W. R. 448. Cheques.] — The servant of the drawer of a cheque on bankers, to whom it is given to deliver to a third person, appropriating the value to his own use, may be charged in an indictment for stealing a valuable security, to wit, a cheque of the value specified, without stating the drawees to be bankers. Reg. v. Heath, 2 M. C. C. 33. Handkerchiefs in a Piece.] — A set of new handkerchiefs in a piece may be described as so many handkerchiefs, though they are not sepa- rated one from another, if the pattern designates each, and they are described in the trade as so many handkerchiefs. Rex v. JVibbs, 1 M. C. C. 25. Tin or Iron.] — In an indictment for receiving stolen tin, ingots of tin are properly described as so many pounds weight of tin. Reg. v. Mans- field, Car. & M. 140 ; 5 Jur. 661. So it would be proper to describe a bar of iron as so many pounds of iron. lb. Eggs — Description of Kina.] — An indictment for stealing " three eggs of the value of two- pence, of the goods and chattels of S. H.," is bad, for not stating the species of eggs, because it does not shew that the eggs stolen might not be such as are not the subject of larceny. Reg. v. Cox, 1 C. & K. 487. ' Ham.] — An indictment describing the pro- perty stolen as " one ham, of the value of 10s., of the goods and chattels of T. H., " is suflBcient, 370 as the word " ham " has acquired a meaning which is universally understood ; and it is no objection, that it may be taken to mean the ham of an animal ferae naturse or of a base nature, inasmuch as the flesh of a dead animal ferse naturae is the subject of larceny, and the expen- diture of labour on the flesh or the skin of animals of a base nature, at common law, imparts to it value, and makes it also the subject of larceny. Reg. V. Gallears, 8 New Sess. 'Cas. 704 ; 1 Den. C. C. 501 ; 2 C. & K. 981 ; T. & M. 196 ; 19 L. J., M. C. 13 ; IB Jur. 1010. Animals Ferae Naturae.] — In cases of larceny of animals feras naturae, the indictment must shew that they were eitlier dead, tame, or con- fined, otherwise they must be presumed to be in their original state. Rsx v. Rough, 2 East, P. C. 607. And see Rex v. Hudson, 2 East, P. C. 611. And it is not sufficient to add " of the goods and chattels " of such a one. Rex v. Rmt^h, 2 Bast, P. C. 607. Dead Animal.] — An indictment for stealing a dead animal should state that it was dead ; for upon a general statement that a party stole the animal, it is to be intended that he stole it alive. Rex V. Edwards, K. & E. C. C. 497. Upon an indictment for stealing a live animal, evidence cannot be given of stealing a dead one. n. But in Rex v. Puckering, 1 M. C. C. 242, A. was indicted for receiving a lamb ; when he received the lamb it was dead, and it was held that the indictment was sufiicient, it being im- material, as to the prisoner's offence, whether the lamb was alive or dead, his offence, and the punishment for it, being in both cases the same. This case appears to overrule Rex v. Edwards. Live Animals.] — An indictment for stealing four live tame turkeys was laid in the county of H. ; it appeared that the prisoner stole them alive in the county of C, and killed them there, and then brought them into the county of H. : — Held, that as the prisoner had not the turkeys in a live state in the county of H., the charge as laid was not proved, and that the word "live" in the description could not be rejected as sur- plusage, and therefore that the indictment was bad. Rex v. Halloway, 1 C. & P. 128. Tame Animals.] — An indictment charged the prisoner with having feloniously stolen four tame pigeons : — Held, that the word " tame " suf- ficiently showed that they were reclaimed, and that such tame and reclaimed pigeons are the subjects of larceny, notwithstanding that they have the means of ingress and egress at pleasure. Reg. V. Clieafor, 2 Den. C. C. 361 ; T. & M. 621 ; 5 Cox, C. C. 367 ; 21 L. J., M. C. 43 ; 15 Jur. 1065. Horse, Mare, or Gelding.] — In an indictment for horse-stealing, the animal, whether a horse, mare, gelding, colt, or filly, may be described as a horse. Reg. v. Aldridge, 4 Cox, C. C. 143. Foals and fillies were within 2 & 3 Edw.,6, c. 33, and were included in the words horse, geld- ing, or mare, and evidence of stealing a mare filly supported an indictment for stealing a mare. Rex V. Welland, R. & R. C. C. 494. Cow or Heifer.]— An indictment for stealing a cow cannot be supported by evidence of stealing Digitized by Microsoft® 371 CEIMINAL LAW — Larceny and Receivers, Cook, 1 Leach, C. C. 105 ; 2 a heifer. Rpx v, Bast, P. C. 616. The beast, however old, is a heifer until she has had a calf. /*, Sheep, Ewe, or Lamb.]— An indictment for stealing a sheep is supported by proof of stealing a ewe or a ram, though the statute specifies " ram, ewe, sheep, or lamb." Req. v. M'Cullev 2 M. 0. C. 34 ; 2 Lewiu, C. C. 272. A sheep was called in the indictment a ewe, and, by the witnesses, the proper name was said to be a ewe teg :— Held, that the description was bad. Heg. y. Jewett, 2 Cox, C. C. 227. On the trial of an indictment under 7 & 8 Geo. 4, c. 29, s. 25, for stealing " one sheep," some of the witnesses stated the animal to be a sheep, others a lamb. It was between nine and twelve months old ; and the jury who convicted the prisoner found, that, in common parlance, ac- cording to the usual mode of describing such animals, it would be called a lamb. Conviction held right, the word "sheep" being general. Bet/. V. Spicer, 1 C. & K. 699 ; 1 Den. C. C. 82. On an indictment for sheep-stealing, a rig sheep is properly described as "one sheep." Rex v Stroud, 6 C. & P. 535. c. Allegation and Proof of Ownership of Property. Person to whom Goods belong must be stated.] — ^Au indictment for larceny, and receiving goods knowing them to have been stolen, is bad, if it does not state to whom the goods belonged. Reti V. Ward, 7 Cox, C. C. 421. Person must have Actual or Constructive Pos- session.] — Property cannot be laid in a person who has never had either actual or constructive possession. Rew v. Adams, K. & R. C. C. 225, Never in Eeal Owner's Possession.]— The pro- perty stolen may be described as the real owner's, although it never was actually in his possession, but in the possession of his agent only. Rex v. Remnant, R. & R. C. C. 136. Guest or Innkeeper.] — Goods belonging to a gaest, stolen at an inn, may be laid to be the property either of the innkeeper or of the guest. Rex V. Todd, 1 Leach, C. C. 357, n. Washerwoman.] — So goods stolen from a washerwoman may be laid to be her property. Rex V. Parker, 1 Leach, C. C. 357, n. Agister.] — So in the case of an agister, who takes in sheep to agist for another, they may be laid to be his property. Rex v. Woodioard, 1 Leach, C. C. 357, n. ; 2 East, P. O. 653. Coachmaster or Owner.] — The coach-glass of a gentleman's coach, standing in a coachmaster's yard, may be laid to be the property of the coach- master. Rex V. Taylor, 1 Leach, C. C. 356 ; 2 East, P. C. 653. Goods in Boot of Coach.] — The property in goods stolen, is properly alleged to be in the driver of a coach, from the boot of which they were taken. Rex v. Sealiin, 2 East, P. C. 653 ; 2 Leach, C. C. 862, 372 In JJt^",?*^^^*?,'''^':h^''^ goods of a furnished lodging must be described as the lodger's goods, not as the goods of the original owner. Rex v f m! C 0. 26 ^' "^- -""• ^- ^'■«'«"'*'«''. Possession of Owner by Agent or Servant.]— It a corn factor purchases a ship laden with corn, and sends his lighter to fetch it from the ship to his wharf, a delivery of the corn on board the lighter puts it into the possession of the corn tactor, although the lighterman never delivers it n n onl'^'S'"^ ^'^'"^- ^""^ ^- *««'■*. 2 Leach, C. C. 825; 2 East, P. C. 568. If a corn factor purchases the cargo of a vessel laden with corn, and sends his servant with a lighter to fetch it from the ship in loose bulk, and the sei-vant contrives to have a certain portion of It put mto sacks by the meters on board the ship, and takes the corn so sacked feloniously away in the lighter immediately from the ship, he maybe indicted for stealing the property of the com factor, although it was never put into his lighter, or otherwise reduced into the corn factor's posses- sion. Rex V. Airaliat, 2 Leach, 0. C. 824: 2 East, P. C. 569. The prisoner was sent by his fellow workmen to their common employer, to get the wages due to all of them. He received the money in a lump sum, wrapped up in paper, with the names of the workmen and the sum due to each written inside : — Held, that he received the money as the agent of his fellow workmen, and not as the servant of the employer, and that, in an indict- ment against him for stealing it, the money was wrongly described as the property of the employer. Reg. V. Barnes, 1 L. E., C. C. 45 ; 35 L. J., M. C. 204 ; 12 Jur., N, S. 549 ; 14 L. T. 601 : 14 W. R. 805. Possession of Husband by Wife.]— The wife of A. was employed by her father to sell sheep, and receive the amount at K. She did so ; but before she left K. a 5Z. note, which she received in pay- ment for the sheep, was stolen from her : — Held, that the note was properly described as the property of the husband. Rex v. Roberts, 7 C. & P. 485. Bailee.] — The London Dock Company by mistake delivered two hogsheads of sugar to a carrier, who produced two delivery notes author- izing them to deliver two other hogsheads of sugar, the property of B. The carrier broke bulk, and was indicted for larceny : — Held, that the property was well described as the property of the London Dock Company, they having still a special property in the chattels, notwithstanding that they had parted with the possession by mis- take. Reg. V. Vincent, 3 0. & K. 246 ; 2 Den. C. C. 464 ; 5 Cox, C. C. 537 ; 21 L. J., M. C. 109 ; 16 Jur. 4r,7. A. was indicted for stealing iron which he had taken from a canal while the canal was being- cleaned. Property found on such occasions in the canal, if identified, was returned by the company to the owner ; otherwise it was kept by the com- pany. A. was not in the employ of the company : —Held, that the property in the iron was rightly laid in the company. Reg. v. Rawe, Bell, C. C. 93 ; 8 Cox, C. C. 139 ; 28 L. J., M. C. 28 ; 5 Jur., K. S. 274 ; 32 L. T., 0. S. 339 ; 7 W. R. 236. Churchwardens and Overseers.]— Money was I o 2 Digitized by Microsoft® 373 CEIMINAL LAW — Larceny and Receivers. 374 stolen from an ancient poor's box fixed up in a church : — Held, that, in an indictment for steal- ing it, the property would be properly laid in the vicar and churchwardens ; and that an indict- ment in which the property was stated to be that of " J. N. and others," J. N. being the vicar, was correct, without alleging J. N. to be the vicar, or the " others " to be the churchwardens. Meff. v. Wortley, 2 C. & K. 283. An indictment for stealing goods may, under .5.5 Geo. 3, u. 137, state them to be the goods of the overseers of the poor, for the time being, of the parish of A. ; for this will import that they belonged, at the time of the theft, to the persons who were the then overseers. Rex v. Went, E. 6 E. C. C. 359, — Inhabitants of a County.] — A room attached to a shire-hall, and built and used for the purpose of a ball and concert room, is within 7 Geo. 4, c. 64, s. 5, which provides, that in any indictment for any felony or misdemeanor, committed in, upon, or with respect to any court, or other building erected or maintained at the expense of any county, in, on, or vrith respect to any goods or chattels provided for or at the expense of the county, to be used in or with any such court, it shall be sufficient to state any such property, real or personal, to belong to the inhabitants of such county. Reg. v. Winhow, 5 Cox, C. C. 346. A chandelier, which had been used as a fixture in the ball-room, and subsequently removed to another part of the building, but not used for any purpose, is also within the same statute, and is properly described as the property of the in- habitants of the county. Ih. Bank not Registered — Public Officer.] — In an indictment for larceny, the property was laid to be in G., manager of the Dudley and West Bromwich Bank. The property belonged to the banking company, a company consisting of more than twenty partners, but no registration of it, or appointment of any manager or public officer, was proved. The indictment was amended by laying the property in W. and others, W. being one of the partners : — Held, that the ownership, as amended, was rightly laid under 7 Geo. 4, c. 64, s. 14, and that it need not have been laid in the public officer (presuming there was one), under 7 Geo. 4, c. 46, s. 9. Reg. v. Pritehard, 8 Cox, C. C. 461 ; L. & C. 34 ; 30 L. J.. M. C. 169 ; 7 Jur., N. g. 557 ; 4 L. T. 340 ; 9 W. E. 579. The 1 & 2 Vict. c. 85, was continued by 3 & 4 Vict. c. Ill ; and a shareholder in a joint stock banking company may be indicted for embezzling or stealing the money of the company, it being laid as the property of a public officer of the company correctly appointed and registered. Reg. v. Atldnson, 2 M. C. C. 278 ; Oar. & M. 525. Property of Company.] — An indictment charged the prisoners vrith stealing brass, the property of H. The evidence was that the brass was the property of a trading company, and that it was seen on the company's premises about twelve days before it was missed on the 24th March, 1877 ; that the company was being wound up ; and that H. was the official liquidator. A copy of the London Gazette, dated 19th May, 1877, was produced, which stated that at a special meeting of the company duly convened, and at a subsequent special general meeting (April 25th), a resolution wa.? passed for winding-up the com- pany voluntarily, and that H. and S. were ap- pointed liquidators at the special generalmeeting : — Held, that this evidence did not prove that the brass was the property of H. as laid in the indict- ment. Reg. V. Bell and Jordan, 36 L. T. 670. In order to satisfy the allegation in an indict- ment laying the property in a company limited, it is not necessary to prove the incorporation of the company by the certificate of incorporation, but it is sufficient to shew that the company acted and carried on business in fact as such company. Reg. v. Langton, 2 Q. B. D. 296 ; 13 Cox, C. C. 345 ; 46 L. J., M. C. 136 ; 35 L. T. 527. Father or Son.]— An indictment for stealing the wearing apparel of a son, who is an appren- tice to his father, and furnished vrith his clothes in pursuance of his indentures, should lay them to be the property of the son, and not of the father. Rex v. Forsgate, 1 Leach, C. C. 463. If a father buys and pays for cloth which is made into trousers for his son, who is seventeen years of age, these trousers may, on an indict- ment for larceny, be laid as the property of the father. Reg. v. Hnghes, Car. & M. 593. In such cases the property may be laid either in the father or in the son, but the better course is to lay it in the latter. Ih. A. was a boy of fourteen years of age, living with and assisting B., who was his father. The prisoner was indicted for stealing a pair of boots the property of A. The boots were the property of B., but at the time they were stolen by the prisoner, A. had temporarily, in his father's absence, the charge of the stall from which they were stolen : — Held, that A. was not a bailee, and that the ownership of the boots could not pro- perly be laid in him. Reg. v. Green, Dears. & B. 113 ; 7 Cox, C. C. 186 ; 26 L. J., M. C. 17 ; 2 Jur., N. S. 1146. Goods under Execution.] — If goods seized under a fi. fa. are stolen, they may be described as the goods of the party against whom the vrnt issued ; for though they are in custodia legis, the original owner continues to have a property in them until they are sold. Rex v. Eastall, 2 Euss. C. & M. 291, 382. Peers and Peeresses.] — In an indictment for larceny of goods, the property of a peer who is a baron, the goods may be laid as the goods and chattels of " G., T. E., Lord D.," without styling him Baron D., although the more proper way to describe the peer is by his christian name, and his degree in the peerage, as duke, earl, baron, or the like. Reg. v. Pitts, 8 C. & P. 771 ; S. P., Reg. V. Caley, 5 Jur. 709. An indictment for larceny, laying the goods stolen to be the property of Victory Baroness Turkheim, is good, although her name is Belinda Victoire. Rex v. Sulls, 2 Leach, C. C. 861. Property of Industrial Co-operative Society.] — B. was charged with stealing money, alleged to be the money of A. A. had received the money as the servant of an industrial co-opera- tive society, for goods sold to members of the society, and he was accountable to the treasurer forthe moneys he had received. B. was amember of the society, and had abstracted some money from a till under A.'s charge : — Held, that there was a sufficient possession of the money in A. to sustain a conviction for larceny against Digitized by Microsoft® 375 CRIMINAL LAW — Larceny and Beceivers. 376 B. Meff. V. Burgess, L. & C. 299 ; 9 Cox, C. C. 302 ; 32 L. J., M. C. 185 ; 9 Jur., N. S. 582 ; 8 L. T. 255 ; 11 W. E. 602. Trustees not Incorporated.] — An indictment for the larceny of property belonging to trustees who are not incorporated, must lay the property to be in them by name as individuals, subjoin- ing a description of the character in which they are authorized to act. Meix v. Sherrington, 1 Leach, C. C. 513. Property of Friendly Society.] — Where a friendly society had appointed a treasurer and two trustees, one of the trustees was held guilty of larceny in stealing the money of the society, the money being alleged in the indictment to be the property of the treasurer, and having been taken from his hands with the intention of stealing. Reg. v. Cain, 2 M. C. C. 20i ; Car. & M. 309. A. was indicted for stealing money, the pro- perty of " F. and others." " F. and others " were trusteesof a friendly society ; and A. and H. were members of the society. H. was in posses- sion of a shop where goods were sold for the society, and had the sole management, and was answerable for property and money coming into his possession. A., while assisting in the shop, without salary, took the money from the till. The prosecution failing to prove the society was duly inrolled, tbe indictment was amended by inserting H.'s name instead of "F. and others." It was then proved, on behalf of A., that the society was inrolled : — Held, that a conviction lupon the amended indictment might be sus- tained. Reg. V. Webster, L. & C. 77 ; 9 Cox, 0. C. 13 ; 31 L. J., M. C. 17 ; 7 Jur., N. S. 1208 ; 5 L. T. 327 ; 10 W. R. 20. S. P., Rex v. Bramley, E. & E. C. C. 478. A., who was a trustee of a friendly society, vras appointed by resolution of the society to receive money from the treasurer, and to carry it to the bank. He received the money from the trea- surer's clerk, but instead of taking itito the bank, he applied it to his own purposes. He was in- dicted for stealing, the money being laid as that of the treasurer. The 18 & 19 Vict. c. 63, s. 18, vests the property of friendly societies in the trustees, and directs that in all indictments the property shall be laid in their names : — Held, that A. could not be convicted. Reg. v. Loose, Bell, C. C. 259 ; 8 Cox, C. C. 302 ; 29 L. J., M. C. 132 ; 6 Jur., N. S. 513 ; 2 L. X. 254 ; 8 W. E. 422. Landlord or Benefit Society.]— A box belong- ing to a benefit society was stolen from a room in a public house. Two of the stewards had keys of this, box ; and, by the rules of the society, the landlord ought to have had a key, but in fact he had not :— Held, that the prisoner might be convicted on a count laying the pro- perty in the landlord alone. Rex v. Wynier, i C. & P. 391. Goods in Dissenting Chapel.]— The goods m a dissenting chapel, vested in trustees, cannot be described in an indictment as the goods of a ser- vant who has merely the custody of the chapel and things in it, to clean and keep in order, fllthoue-h he has the key of the chapel, and no Digitized by Microsoft® A Bible had been given to a society of Wesleyans ; and it had been bound at the ex- pense of the society. B, stated that he was one of the trustees of the chapel, and also a member of the society. No trust-deed was produced : — Held, that, in an indictment for stealing the Bible, the property was rightly laid in B. and others. Rex v. Soidton, 5 C. & P. 537. On Death of Parties — Laid in the Ordinary.] — In an indictment for stealing property which has belonged to a deceased person, who appointed executors, who would not prove the will,, the property must be laid in the ordinary, and not in a person who, after the commission of the offence, but before the indictment, has taken out letter of administration with the will annexed ; be- cause the rights of an administrator only com- mence from the date of the letters, as distin- guished from those of an executor, which commence, not from the granting of the probate, but from the death of the testator. Rex v. Smith, 7 C. & P. 147. A Icuife was stolen from the pocket of A., as his dead body lay in a road at S., in the diocese of W. The last place of abode of A. was at T., in the diocese of G. ; but A.'s father stated that he believed his son had left T. to come to live with him, but did not know whether his son had given up his lodgings at T. : — ^Held, that this was sufficient proof to support a count for larceny, laying the property in the Lord Bishop of W. Reg. v. Tippin, Car. & M. 545. A. was convicted upon an indictment charging her with stealing numerous articles, laid as the property of the ordinary. The evidence was, that the articles, which belonged to a deceased person, were after her death found in A.'s pos- session ; that search had been made for a will, and none found ; and that a small portion only of the articles had been seen in the house of the deceased after her death :— Held, that the pro- perty was rightly laid in the ordinary, and that the sessions had done right in leaving the case, as to the whole of the articles, to the jury, and in refusing to put the prosecutor to an election to proceed only in respect of the taking any particular- articles. Reg. v. Johnson, Dears. & B. C. C. 340 ; 7 Cox, C. C. 379 ; 27 L. J., M. C. 52 ; 4 Jur., iJ". S. 55. Joint Owners or Partners.]— Where two had jointly stock upon a farm, and one died, leaving several children :— Held, that the pro- perty in sheep stolen was properly alleged to be in the survivor and the children ; the former swearing that he considered himself to hold one moiety for the benefit of the latter. Rex v. Scott 2 East, P. C. 655 ; E. & K. C. C. 13. D and C. were partners; C. died mtestate, leaving a widow and children ; from the time oi his death the widow acted as partner with U., and attended the business of the shop ; three weeks after C.'s death part of the goods were stolen ; they were described in the mdictment as the goods of D. and the widow ^^Held, that the description was right. Rc.« v. Gahy, E. & E. C. C. 178. Sufficient Evidence of Possession.]— On an indictment for stealing sheep, which had been stolen after the death of the late owner, there being no formal proo of a will or .^ 377 CEIMINAL LAW — Larceny and Receivers. 378 were in charge of the shepherd, under the orders of a steward, who was under the order of the prosecutors, and took directions from and ren- dered accounts to them : — Held, that there was sufficient evidence of a possession in them, which would sustain the indictment. Bei/. v. King, i F. & F. 493. On Conviction of Felons.] — Goods of an ad- judged felon, stolen from his house, in the possession and occupation of his wife, may be described in an indictment for larceny as the goods of the Queen. But the house cannot be so described without office found. Meg. v. White- ?iead, 2 M. C. C. 181 ; S. P., Coombes v. Queen's Proetor, 16 Jur. 820. Amendment of.] — Where stolen property has been laid in the wrong person, the indictment may be amended. Seg. v. Fullarton, 6 Cox, C. C. 194. S. P., Reg. v. Pritchard, 8 Cox, C. C. 461 ; L. & C. 34 ; 30 L. J.. M. C. 169 ; 7 Jur., N. S. 557 ; 4 L. T. 340 ; 9 W. ja. 579. Contra, Reg. v. Ward, 7 Cox, C. C. 421. Proof of Ownership.] — In support of an in- dictment for stealing oysters in a tidal river, it is sufficient to prove ownership by oral evidence, as, e.g., that the prosecutor and his father for forty-five years since 1815, had exercised the exclusive right of oyster-fishing in the locus in quo, and that in 1846 an action had been brought to try the right, and the verdict given in favour of the prosecutor. Reg. v. Poivning, 23 L. T. 398. Prisoner was charged with stealing a mare, the property of E. The evidence was that the prosecutor, in presence of the prisoner, agreed to buy of W. a mare for 51., and that W. assented to take a cheque for the 51. The prosecutor afterwards sent the prisoner to W. with the cheque, and directions to take the mare to Bramshot Farm. On the next day the prisoner sold a mare to S., which he said he had bought for 51. Before the magistrate he said he sold the mare to S., with the intention of giving the money to B., but that he got drunk :— Held, that that was sufficient evidence on which a jury might find that the mare sold to S. was the property of B. Reg. v. Xing, 12 Cox, C. C 134 : 25L. T. 851. W. let a horse on hire for a week to C, who fetched the horse every morning from W.'s stable, and returned it after the day's work was done. The prisoner went to C. one day, just as the day's work was done, and fraudulently ob- tained it from him by saying falsely, "I have come for "W.'s horse ; he has got a job on, and wants it as quickly as possible." The same evening the prisoner was found three miles ofi with the horse by a constable, to whom he stated that it was his father's horse, and that he was sent to sell it :— Held, that he was rightly convicted of larceny on an indictment alleging the property of the horse to be in W. Reg. v. Kendall, 12 Cox, C. C. 598 ; 30 L. T. 345. Possession of Agent— Charge of Stealing from Agent as Principal.]— The prisoner was tried upon an indictment which charged, that whilst the servant of A. he stole money belong- ing to A. The evidence was, that the prisoner was the servant of B., and that the money belonged to B., but was in the possession of A. as the agent of B. He was accordingly con- victed of simple larceny : — Held, that the con- viction was right. Reg. v. Jennings, Dears. & B. C. C. 447 ; 7 Cox, C. C. 397 ; 4 Jul-., N. S. 146. 6. Trial. a. Jurisdiction to Try. Venue.]— By 24 & 25 Vict. c. 96, s. 114, if any person shall have in liis possession in any one part of the United Kingdom any ehattel, money, valuable security or othsr property wliat- soever, which he shall ha/ve stolen or otherwise feloniously tahen in any other part of the United Kingdom, he may be dealt with, indicted, tried and punished for larceny or theft in that part of the United Kingdom where he shall so have such property, in the same manner as if he had actually stolen or t alien it in that part ; and if any person in aivy one part of the United King- dom, shall receire or have any chattel, money, valuable security or other property whatsoever which shall hare been stolen or otherwise felo- niously tahen in any other part of the United Kingdom, such person knowing such property to have been stolen or otherwise feloniously tahen, he may be dealt with, indicted, tried and punished for such offence in that part of the United Kingdom where he shall so receive or have such property, in the same manner as if it had been originally stolen or tahen in that part. {Formier provision, 7 & 8 Geo. 4, c. 29, s. 76.) Parish Partly in Two Counties.] — If a parish is partly situate in the county of W., and partly in the county of S., it is sufficient, in an indict- ment for larceny, to state the ofience to have been committed at the parish of H., in the county of W. Rem v. Perkins, 4 C. & P. 363. Goods Carried into another County.] — ^Larceny must be tried in the county where committed ; but the oflfence is considered as committed in every county into which the thief carries the goods. Rex V. Thmnson, 2 Kuss. C. & M. 328. If a man steals goods in one county, and carries them into another, it will be larceny in the latter, though the goods are not carried into the latter county until long after the original theft. Rex V. Parkin, 1 M. C. C. 45. _ A wife took her husband's goods from Notting- hill, and she was found committing adultery with the prisoner at Liverpool, the husband's goods being then in the prisoner's possession. There was no evidence that they were under his control at any place within the jurisdiction of the Cen- tral Criminal Court :— Held, that that court had no jurisdiction to try the prisoner for the ofEence. Reg. y. Prince, 11 Cox; C. C. 145. Indictment for stealing two horses in Kent ; the only evidence of stealing in Kent was that the constable having taken the prisoner in Surrey, and the prisoner having offered on some pretence to go to a place in Kent, the constable and the prisoner rode the horses there, and the prisoner escaped, leaving the horses with the constable : — Held, not sufficient. Rex v. Simmons, 1 M. C. C. 408. The prisoner stole a watch at Liverpool, and sent it by railway to a confederate in London : — Held, that the constructive possession still re- mained in the prisoner, and that he was triable at the Middlesex sessions. Reg. v. Rogers, 1 Digitized by Microsoft® 379 CEIMINAL IjKW— Larceny and Receivers. \;?-'-Pa\?r- ^^^ ' ^^ ^- J-' M- c- 83 ; 18 L. T. 414 ; 16 W. E. 733 ; 11 Cox, C. C. 38. If a man kills a sheep in comity A., and carries the carcase into county B., he may be convicted upon an indictment for stealing, taking and driv- ing away sheep into county B. If a man kills a sheep m county A., and carries the carcase into county B., he cannot be convicted of killing the sheep with intent to steal the carcase in county B. Beg. v. Mwland, 2 Cox, C. C. 283. Goods Stolen Abroad and brought to England.] —A person had stolen goods in Guernsey and brought them to England, where he was taken and committed for trial :— Held, that, Guernsey not being a partiof the United Kingdom, he could not be convicted of larceny, for having them in his possession here, nor of receiving in England the goods so stolen in Guernsey. Meg v De- bruiel, 11 Cox, G. C. 207. If a larceny is committed out of the kingdom, though within the king's dominions (e. g. in Jersey), bringing the things stolen into this kingdom, will not make it larceny here. Eex v Prowes, 1 M. C. C. 349 ; S. P., Reg. v. IHadge, 9 C. & P. 29. Within Admiralty Jurisdiction.]— By 2i & 25 Vict. c. 96, s. 115, all indictable ojfences men- tioned in the act which sJi-all be committed within tlie jurisdiction of the Admiralty of Mngland or Ireland shall be deemed to be of- fences of the same nature, and liable to the same punishments, as if they had been committed upon the land in JSmjland or Ireland, and may be dealt with, inguired of, tried and determined in any county or place in which the offender shall be apprehended or be in custody ; and in any indictment for any such offence, or for being an accessory to any such offence, the veiiue in the margin shall be the same as if the offence had been committed in such county or place, and the offence itself shall be averred to have been com- mitted "on the high seas ;" provided that no- thing herein contained shall alter or affect any of the laws relating to the government of her Majesty's land or naval forces. The court of quarter sessions has jurisdiction to try cases of larceny committed on the high seas where the offender is apprehended within the jurisdiction of such court. Reg. v. Peel, L. & C. C. C. 231 ; 9 Cox, C. C. 220 ; 32 L. J., M. C. 65 ; 8 Jur., N. S. 1185 ; 7 L. T. 336 : 11 W. K. 40. See further infra, C. Peactice (Jurisdic- tion.') b. Practice. Election of Larcenies Charged.] — By 24 k, 25 Vict. c. 96, s. 6, if upon the trial of any indict- ment for larceny it shall appear that the pro- perty alleged in such indictment to have been stolen at on,e time was talien at different times, the prosecutor shall not by reason tliereof be required to elect upon which tailing he will pro- ceed, unless it shall appear that there were more than three takings, or that more than the spaee of six months elapsed between the first and the last of such tahings ; and in either of such last- mentionsd cases the prosecutor shall be required to elect to proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six months from the 380 first to the last of such takings. (Similar to former provision, 14 & 15 Vict. c. 100, s 17 ) A. was charged and convicted of stealing vari- ous articles. The evidence was that the articles had belonged to a deceased person and after her death were found in A.'s possession :— Held, that the sessions had done right in leaving the case as to the whole of the articles to the jury, and in retusing to put the prosecutor to an election to proceed only in respect of the taking any par- ticular articles. Reg. y. Johnson, Dears. & B. C- C. 340 ; 7 Cox, C. C. 379 ; 27 L. J., M. C. 52 ; 4 Jur., N. S. 55. ' i . On an indictment for stealing fowls, in a first count laid on the 15th February, for stealing ten fowls, and m the third count laid on the 13th I'ebruary m the same year, for stealing three towls, the prosecutor was put to elect between the two occasions. Reg. v. Lonsdale, 4 P. & F. A. was tried upon an indictment which con- tained two counts, the firet for embezzlement, and the second for larceny as a bailee. At the close of the case for the prosecution, it was objected that the indictment was bad for mis- joinder of counts, and that the counsel for the prosecution could not be allowed to elect upon which count he would proceed. The objection was overruled. The counsel for the prosecution elected to proceed upon the second count, and A. was convicted : — Held, the conviction was right. Reg. r. Solman, 9 Cox, C. C. 201 ; L. & C. 177; 8 Jur., N. S. 1082; 6 L. T. 474 ; 10 W. E. 718. An indictment charged an assistant to a photo- grapher with stealing divers articles belonging to his employer. It did not appear when the articles were taken, whether at one time or more times, but only that one particular artijjle could not have been taken before a given month : — Held, that this was not a case in which the prosecutor should be put to elect upon which articles to proceed under 24 & 25 Vict. c. 96, s. 6. Reg. V. Manwood, 22 L. T. 486. A person stole gas for the use of a manufac- tory by means of a pipe, which drew off the gas from the main without allowing it to pass through the meter. The gas from this pipe was burnt every day, and turned off at night. The pipe was never closed at its junction with the main, and consequently always remained full of gas : — Held, that as the pipe always remained full, there was, in fact, a continuous taking of the gas, and not a series of separate takings. Reg. V. Firth, 1 L. E., C. C. 172 ; 38 L. J., M. 0. 54 ; 19 L. T. 746 ; 17 W. E. 327 ; 11 Cox, C. C. 234. Held, also, that, even if the pipe had not been thus kept full, the taking would have been con- tinuous, as it was substantially all one transac- tion, lb. Before this Enactment.] — Two persons in- dicted for horse-stealing in county A., were found in joint possession of two horses in that county, which they had jointly taken at different times and places in county B. : — Held, that as each taking in county B. was a separate felony, the prosecutor's counsel must elect on which to pro- ceed. Rex V. Smith, E. & M. 295. Whether Jury must find Specific Amount Stolen on Particular Day.] — The prisoner was employed to conduct an office in connexion with a branch bank. His salary included his services Digitized by Microsoft® 381 CEIMINAL IjA'W— Larceny and Receivers. 382 and the providing an office, which was in his own house, where he carried on another business. The office was fitted up at the expense of the bank, and in it there was an iron safe, the pro- perty of the bank, into which it was his duty, when night came, to put any' money received during the day which had not been required. The manager of the branch bank kept a duplicate key of this safe. It was the prisoner's duty to receive money from customers, to be put to their accounts with the branch banlc, and to pay cheques. He furnished accounts to the manager, and it was his duty to pay over weekly to the manager the excess not required at the office. He also received moneys from the branch as re- quired, which were entered in his weekly ac- counts. In September, 1855, his accounts were audited, and his cash found correct ; and from that time up to September, 1857, he continued to furnish weekly accounts which were correct in their statements of receipts and payments, but no examination of the balances appearing from those accounts to be in his hands took place. At the latter date, -however, he was about 3,000?. short in his accounts, and admitted that he had taken that amount. The jury found the prisoner guilty of larceny as a clerk, in having stolen some money received from customers, which before such stealing had been placed in the safe, and made the subject of a weekly account : — Held, that it was not necessary that the jury should find any specific amount to have been stolen on any particular day. Reg. v. WrigJit, Dears. & B. C. C. 431 ; 7 Cox, 0. C. 413 ; 27 L. J., M. C. 65 ; 4 Jur., N. S. 313. Prisoner may be found Guilty of Embezzle- ment though Indicted for Larceny.] — Sec ante, Embezzlement. c. Evidence. Competent Witness — Wife of Prisoner pre- viously Convicted.]- — A. being tried for sheep stealing, it was proposed to call the wife of B. to prove that A. and B. had jointly stolen the sheep, B. having been convicted of it at the previous quarter sessions : — Held, that she was a competent witness. Heg. v. Williams, 8 C. & P. 284. Statement of Prisoner.] — A statement made by a prisoner before suspicion attaches to him, and before search made, in order to account for his possession of property, which he is afterwards charged with having stolen, is admissible as evi- dence for him. Meg. v. Abraham, 2 C. & K. 550. Duty of Prosecution to Eehnt.]— Where a prisoner charged with larceny has given two dif- ferent accounts of the way in which he became possessed of the stolen property, it is not incum- bent on the prosecutor to call as witnesses per- sons whom, in one of the statements, he says could prove his innocence, with a view of dis- proving that statement, but it may be prudent in the prosecutor to have these persons in attend- ance at the trial, though he does not call them, to avoid the effect of the observations by the prisoner or his counsel that these persons could prove the prisoner's innocence, but that he has not the means of procuring their attendance. Meg. V. Diiley, 2 C. & K. 818. Of other Cases.] — -Neither upon an indictment for stealing nor receiving can evidence be given that the prisoner had at the time, or previously, other stolen goods in his possession. M^g. v. Oddy, T. & M. 598 ; 2 Den. C. C. 264 ; 5 Cox, C. C. 210 ; 20 L. J., M. C. 108 ; 15 Jur. 517. A prisoner was indicted for stealing three articles. Having taken the first article, he re- turned in about two minutes and took the second, and then returned in half an hour and took the third : — Held, that, the last taking was a distinct' felony, and could not be given in evidence with the other two ; but, that the interval of time between the first and second taking was so short, that they must be considered as parts of the same transaction. Hex v. Birdseye, 4 C. & P. 886. See also cases, post, C. Pbocbdueb and Peac- TICE (^Evidence'). Ko Proof of Want of Authority.] — A. went to the shop of B., and asked for shawls for Mrs. D. to look at ; B. gave her five ; she pawned two, and three were found at her lodgings. Mrs. D. was not called as a witness : — Held, that A. could not be convicted of a larceny in stealing the goods of B. Mex v. Savage, 5 0. & P. 143. Sufficiency to support Conviction;] — ^W. was indicted for larceny for stealing six pounds of brass from a foundry. The only suggested evi- dence offered at the trial was, that the prisoner, who was employed upon the premises, had been seen to come into the place where the brass was kept : — Held, that there was not a scintilla of evidence to igo to the jury. Meg. v. Walker, Dears. C. C. 280. A. had agisted his horse with B., and in consequence of hearing of the loss of it, A. went to the field of B., where it was not : — Held, to be not sufficient proof of loss to support an in- dictment for horse-stealing. Mex v. Yeiid, 6 C. & P. 176. A servant a day or two before her mistress's death got cashed a cheque drawn to her mis- tress's order, and which had come to her mis- tress's house in a letter, and when cashed pur- ported to bear her mistress's indorsement ; and after cashing it she applied the greater part of it to a purpose which probably was directed by her mistress, but had retained a small surplus, and when taxed with it, just after her mistress's death, she denied the receipt of the cheque, the indorsement of which was believed not to be that of her mistress. The jury was directed that there was no evidence on which they could properly convict her for stealing the cheque, even if there was any on which they could have convicted' for embezzling the surplus. Meg. v. Slingsby, 4 F. & F. 61. A banker's clerk was employed at A. to manage a branch for them at the town of B. He pro- vided an office for the bank in his own house. The office was furnished by the bankers, and an iron safe was provided there by them. There were duplicate keys, the bankers kept one and the clerk the other key. It was his duty to receive money from customers of the bank, to place it at night in the safe, to pay away from time to time such portions of it as were required . for the business of the bank, to pay cheques, to pay over weekly any balance not required for the business at B., and to send in weekly accounts to the bankers at A. He carried on the business, receiving and paying money and Digitized by Microsoft® 383 CEIMINAL LAW — Larceny and Receivers. 384 _ sending in weekly -accounts. In auditing his accounts a deficiency of 3,000Z. was discovered. He admitted that he had taken that amount of the money. There was no other evidence, except that in the day-time money was sometimes kept in a drawer in the office. The jury found him guilty of larceny as a clerk in having stolen some money received from customers which, before such stealing, had been placed in the safe, and made the subject of a weekly account : — Ileld, that there was evidence to go to the jm-y of larceny. Reg. v. Wright, Dears. & B. C. C. 431 ; 7 Cox, 0. C. 413 ; 27 L. J., M. 0. 65 ; 4 Jur., N. S. 313. The prisoner was the bailor, and the prosecutor the bailee of a horse. The prisoner had intrusted the horse to the prosecutor as security for a bill drawn by the former and accepted by the latter, to accommodate him. The prisoner took the horse out of the prosecutor's possession. The bill had been paid by the prosecutor, who had never been repaid by the prisoner, but was not produced at the trial : — Held, that in the absence of the biU. there was no evidence to shew that the prisoner had ever parted with his property in the horse, so as to constitute his taking of it alarceny. Reg. v. Wadmiorth, 10 Cox, C. C. 557. When Prosecutor cannot say that any Goods Lost.] — A man was found with dead fowls in his possession, of which he could give no account, and was tracked to a fowl-house where a number of fowls was kept, and on the floor of which were some feathers corresponding to the feathers of one of the fowls found on the prisoner, from the neck of which feathers had been removed. The fowl-house, which was closed over night, was found open in the morning. The spot where he was found was 1,200 yards from the fowl-house, and the prosecutor, not knowing the number of fowls kept, could not swear that he had lost any : — Held, that there was evidence to support a conviction for larceny. Reg. v. Mocliford, 11 Cox, C. C. 16 ; 17 L. T. 582 ; 16 W. E. 375. The prisoner was found coming out of a ware- house, where a large quantity of pepper was kept, with pepper of a similar quahty in his possession. He had no right to be in the ware- house, and on being discovered said, " I hope you will not be hard with me," and took some pepper out of his pocket and threw it upon the ground. There was no evidence of any pepper having been missed from the bulk :— Held, that there was sufficient evidence to go to the jury of the corpus delicti. Reg. v. Burton, Dears. C. C. 282 ; 6 Cox, C. C. 293 ; 23 L. J., M. C. 52 ; 18 Jur. 157. Though no portion of the prosecutor's goods has been missed, it is a question for the jury, under all the circumstances of the case, whether the goods, which are the subject of the indict' ment, are his property. Reg. v. Hooper ' "^ ' y. 85. , 1 F. & Proof of Writing— No Notice to Produce.]— On an indictment against A. and B., for burg- lary, one lof the articles stolen (the only one directly proved to have been in the possession of either of them) being a ring, which was de- scribed particularly by the prosecutor, and proved to have had an inscription upon it, and to have been just like one he produced ; and one of the prisoners being proved to have shewn, soon after the burglary, a ring which was proved to have Digitized by Microsoft® been just like that produced, and to have had an inscription upon it, but no notice to produce which had been given : — Held, that the contents of the inscription on the prosecutor's ring could not be proved, and that, as there had been no notice given to the prisoner to produce the ring shewn by him to the witness, the contents of the inscription upon it could not be proved. Reg. V. Farr, 4 F. & 1?. 396. After proof of Subptena.] — On an indict- ment for the larceny of a bill of exchange obtained fi'om the prosecutor, under a pretence of discounting it, parol evidence of the bill may be given after proof of a subpoena duces tecum given to the person iii whose possession it was shewn to be previously to the trial, but who did not attend. Rex v, Aicldes, 1 Leach, 0. C. 294 ; 2 East, P. C. 675. d. Becent Possession of Stolen Property. What Considerations Affect.] — The question of what is or is not a recent possession of stolen property, is to be considered with refer- ence to the nature of the article stolen. There- fore, where two ends of woollen cloth in an uniinished state, consisting of about 20 yards each, are lost, and were in the possession of the prisoner two months after their being stolen, and still in the same state, it was held that this was a possession sufficiently recent to call on the prisoner to shew how he came by the property. Rex V. Partridge, 7 C. & P. 551. Where a. stolen horse was found in the posses- sion of the prisoner six months after it was stolen, and there was no other evidence against him, the judge would not call on him for his defence, as the possession was not sufficiently recent. Reg. v. Cooper, 3 C. & K. 318 ; 16 Jur. 750. S. P., Rex V. Adams, 3 C. & P. 600 ; Reg. v. Cruttenden, 6 Jur. 267. A. was indicted for stealing and receiving articles of dress. It was proved that the prose- cutor's house was broken open and the articles stolen, on the 2nd November. On the night of the 4th November A. sold them openly at a public - house. He was subsequently appre- hended, and then told the constable that C. and D. brought the goods to his house, and that the woman who kept it (Mrs. W.) would say so, and that being on the spree, he sold them and spent the money. 0. and D. were thereupon apprehended. C. was convicted of stealing articles taken at the same time from the prose- cutor's house, and D. was discharged. The con- stable went to the woman W., and made inquiries as to A.'s statement. No evidence as to the result of such inquiry was received. Neither C, D., nor W. was called by the prosecution to con- tradict A.'s statement, and he was convicted of stealing :— Held, that as there was some evidence upon which the jury might convict, the con- viction must be affirmed . Reg.x. Wilson, Dears. & B. C. C. 157 ; 26 L. J., M. 0. 45 ; 3 Jur., N. S. Possession by a letter-carrier of a bank-note some months after it has been sent by post and lost is not sufficient evidence of a felonious stealing by him, though not accounted for other- wise than by his mere assertion that he had found it. Reg.y.Smitn,iV.^J.ni. A prisoner was tried on the 29th of June, 18b3, upon an indictment which charged him m the 385 CRIMINAL LAW — Larceny and Receivers, 386 first count with having on the 20th of Ssptember, 1862, stolen certain property of A., and in the second count with having on the 16th of January, 1863, stolen five shovels, also the property of A. The prisoner had been in A.'s employ several years, and the property charged in the indict- ment was found in his possession on the 21st of January, 1863, but there was no evidence to shew when they were stolen : — Held, that he was not entitled to be acquitted on the ground that the stolen property was not proved to have been in his possession recently after it was stolen. Meg. V. KnigU, L. & C. 378 ; 9 Cox, C. C. 437 ; 9 L. T. 808. Where property of insignificant value is traced to the possession of the prisoner fifteen months after the loss, and he gives an account of his possession of it which is not inconsistent with the right of the prosecutor to it, he ought not to be called on to account for that possession in a court of justice. Where, however, the prisoner, when lost property is found in his possession, and identified by the prosecutor after so long an interval, claims it as his own property by right of purchase made before the alleged theft, and a continuous possession up to the time of discovery, he may be called on to account for that posses- sion, notwithstanding the interval which has elapsed between the loss and discoveiy, for then he disputes the identity of the thing found with that loss. jReg. v. Evans, 2 Cox, C. C. 270. A prisoner was indicted for sheep-stealing. The prosecutor lost a sheep in September ; it was found in the prosecutor's possession in the March following! There was no other evidence of larceny than the possession : — Held, that the period between the loss and the finding was too long to permit the case to go to the jury. Reg. V. Harris, 8 Cox, C. C. 333. Evidence of Beceiving Property, knowing it to have been Stolen.] — -Eecent possession of stolen property is evidence, either that the person in possession stole the property, or that he re- ceived it knowing it to have been stolen, accord- ing to the other circumstances of the case. Meg. V. Langmead, L. & C. 427 ; 9 Cox, C. C. 464 ; 10 L. T. 350. Duty of Prosecution to Disprove.] — Where a person on whom stolen property is found gives to those who find him in .possession of it a reasonable account of how he came by it, it is incumbent on the prosecutor, on the trial, to shew that that account is untrue. Meg. v. Crow- Imrst, 1 G. & K. 370. S. P., Reg. v. Smith, 2 C. & K. 207. Aliter, if that account is unreasonable or im- probable on the face of it. li. On a charge of burglary, possession by the prisoner of part of the stolen property very soon after the burglary, with an account given of it not reasonable or credible, is sufficient primS, facie evidence, without express evidence to falsify it. It is so however only if, upon all the circumstances in the case, the account given is not reasonably credible. Reg. v. Escall, 4 F. & F. 922. Where stolen property is traced to the posses- sion of a prisoner, and he at the time gives an account of how he became possessed of it, it is not the duty of the prosecution to disprove that account where '•circumstances exist in the case which render that account unreasonable, or its truth improbable. In such a case the burthen of calling the parties vouched is cast on the prisoner. Reg. v. Harmer, 3 Cox, C. C. 487. What sufficient Evidence of Eeoent Posses- sion.] — A bag was left by the owner on a Saturday night near to a place where the prisoner and two other persons were at the time. The prisoner passed by the place on his way home, and shortly afterwards one of the other persons followed in the same direction. That person and the prosecutor then met the prisoner coming back to his home from the opposite direction, and being questioned he denied all knowledge of the bag, and said that he had been into the neigh- bouring wood for firewood. The wood, the prisoner's cottage^ and some disused farm build- ings near it, were then searched, without success. On the Monday morning the bag was found in a hay-loft in one of the disused farm buildings near to the highway. There was no door to it, and passers-by had easy access to it. The pri- soner was then taken into custody for stealing the bag, and said to the constable, after pre- viously denying he had taken the bag, " I suppose I shall get a month for this," and made use of some other words of no more de- finite meaning. The chairman left all the facts to the jury as evidence from which they might infer that the prisoner had had possession of the bag, and directed them, if they found so, to treat the case as one of recent possession : — Held, that the chairman's ruling was wrong, and that he ought to have directed an acquittal. Reg. v. Hughes, 39 L. T. 292. On the night following the commission of a burglary, two boys were found concealed in a corn-chest in an open gig-house with which they were not in any way connected, and half a mile from the house of the prosecutor. Out- side the corn-chest was found some of the stolen property, and in the loft over the gig-house was found another portion of the stolen property : — Held, that there was no evidence to go to the jury of possession by the boys of any of the stolen articles. Reg. v. Coots, 2 Cox, 0. C. 188. e. Funishment. (24 & 25 Vict. c. 96, ss. 7, 8, 9, 98, 99.) 7. Eestitution and Bbcoveey of Stolen Peopekty. Power to award Writs of Restitution.] — By 24 & 25 Vict. c. 96, s. 100, if any person guilty of any such felony or misdemeanor as is mentioned in the act, in stealing, taking, obtaining, ex- torting, emiezxling, com'erting or disposing of, or in hnowingly receiving, any chattel, money, valuable security, or other property mlmtsoceer, shall lie indicted for such offence, by or on iehalf of the owner- of the property, or his executor or administrator, and,_ convicted ■ thereof, in such case the property shall be restored to the ovmer or Ms representative ; and in every case in this section aforesaid, the court before whom any person shall be tried for any suchfelmiy or mis- demeanor, shall have power to award, from time to tims, writs of restitution for the said pro- perty, or to order tJte restitution thereof in a summary maimer : provided that if it shall appear, before any award or order made, that Digitized by Microsoft® 387 CRIMINAL LAW — Larceny and Receivers, any valuable security sltall have been bona fide paid or discharged by some person or body cor- porate liable to the payment thereof, or beitig a negotiable instrument, sJimU have been bond fide talten or received by transfer or delivery, by some person or body corporate for a just and valuable consideration, without any ivotise, or loithout any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, tahen, obtained, extorted, embezzled, eon- verted or disposed of, in such case the court shall not award or order the restitution of such secu- rity ; provided also, that nothing in this section contained shall apply to the case of any pro- secution af any trustee, banker, merchant, at- torney, factor, broher, or'otJter agent intrtisted toith the possession of goods, or doeuments of title to goods, for any misdemeanor against this act. (IPonner provision, 7 & 8 Geo. 4, c. 29, s. 57.) Property must have been Stolen.] — On a conviction at the Central Criminal Court for stealing, the court has no jurisdiction to make an order directing the disposal of property found in the possession of the felon when he was apprehended, which was not part of that stolen. Meg. V. London (^Corporation'), 27 L. J., M, C. 231 ; 4 Jur., N. S. 1078. To what Cases applicable.] — The 21 Hen. 8, c. 11, which restored goods to a prosecutor on conviction of the person who took them away, extended only to a felonious and not to a fraudu- lent taking. Rex v. De Veaux, 2 Leach, 0. C. 585 ; 2 East, P. C. 789, 839. The 24 & 25 Vict. c. 96, s. 100, applies to cases of false pretences as well as felony, and the fact that the prisoner parted with the goods to a bona fide pawnee will not disentitle the original owner to the restitution of the goods. Meg. v. Stancliffe, 11 Cox, C. C. 318. The court is bound by the statute to order restitution of property obtained by false pre- tences, and the subject of the prosecution, in whose hands soever it is found. Meg. v. Gold- smith, 12 Cox, C. C. 594. So, likewise, of property received by a person knowing it to have been stolen or obtained by false pretences. lb. But the order is strictly limited to property identified at the trial as being the subject of the charge, lb. . It does not, therefore, extend to properly m the possession of innocent third persons, which was not produced and identified at the trial as being the subject of the indictment, lb. An order of restitution of property stolen wiU extend only to such property as is produced and identified in the course of the trial, and not to all the articles named in the indictment, unless so produced and identified, and -in the possession of the court. Meg. v. Sm,ith, 12 Cox, C. C. 597. S 100 of the Larceny Act, 1861, enacts that any property dishonestly acquired shall be restored to the owner upon conviction of the ofEender, and in every case the court before which the conviction takes place shall have power to order restitution in a summary manner, provided that in case of a bona fide transfer ot a negotiable instrument for value, and without notice or reasonable cause to suspect, the court shall not award or order the restitution of such security. The defendants had^bqna fide and 388 without cause to suspect acquired the possession for value of a New Zealand bond for 1,OOOZ., which had been stolen from the plaintifE's pos- session, after the conviction of a person for feloniously receiving the same : — Held, that the proviso in the above section applies to the right to recover as well as to the summary restitution of a negotiable instrument, and that, under the circumstances, the owner of the bond could not recover it from the transferees. Chieliester v. Hill, 15 Cox, C. C. 258 ; 52 L. J., Q. B. 160 ; 48 L. T. 364 ; 31 W. R. 245 ; 47 J. P. 324. See also next sub-head. Stolen Horses,] — The provisions of 31 Eliz. c. 12, extend to the sale as well of horses which are not stolen as of those which are stolen ; and the sale of a horse in market overt without com- plying with the requirements of this statute has merely the effect of a sale out of market overt. Moran v. Pitt, 42 L. J., Q. B. 47 ; 28 L. T. 554 ; 21 W. E. 525. A magistrate has no power, under 31 Eliz. c. 12, to cause a stolen horse to be re-delivered to the owner, unless proof of the actual theft is first given. Josephs v. Atkins, 2 Stark. 76. A complaint having been made to a magistrate by the owner, that his horse had been stolen by B. ; an officer, although armed with a warrant against B., is not justified, under the above statute, in taking the horse out of the possession of a bona fide purchaser from B. li. iLU. UUllia AiiAV- ...^v- .. Digitized by M/broso/?® Bestitution to Owner.] — The postmaster- general is not entitled to have restored to him moneys found on the prisoner, part of the pro- ceeds of the theft, the prisoner having pleaded guilty to an indictment for stealing a letter containing two bank notes, the property of the postmaster-general. Meg. v. Jones, 14 Cox, C. C. 528. „ , The court cannot, under the 7 & 8 Geo. 4, c. 29, s. 57, order a Bank of England note which has been paid and cancelled, to be delivered up to the prosecutor of an indictment against the party who stole it. Hex v. Stanton, 7 C. & P. 431. Counsel heard on behalf of Persons in Posses- sion of Goods.]— Where a prisoner pleaded guilty to several indictments charging him with larceny, and an application was made on the part of the prosecutor for an order for restitution, the com-t consented to hear counsel on behalf of those who were in possession of the goods, and against whom the order, if made, would operate. Meg. v. MacMin, 5 Cox, C. C. 216. Common Order, when made.]— Where, under such circumstances, the depositions taken before the magistrate disclosed a clear case ot felony, the court declined to order a ^it of restitution to issue on the suggestion of the holders of the goods that the prisoner was an agent, and there- fore that the fraudulent dealing with the goods on his part did not constitute a felony, but the court made the common order for restitution. Jb. Jurisdiction to award Writ of Kestitution.]- The jurisdiction of the Court of Queen's Bench to is ue a writ of restitution of f ^l^^ I»;°Pf /„ was incidental to the lud^ent on appeals of felony which were abolished by 59 Geo. 3, o. 4b, CRIMINAL LAW — Larceny and Receivers. 389 and it was abolished with them. Reg. v. London iUrcL Mayor, S;c:), 4 L. R., Q. B. 371 ; 17 W. R. 722 ; 10 B. & S. 3il. 8. C, nom. Walleo- v. London {Mayor, <<•«.), H Gox, C. C. 280 ; 38 L. J., M. C. 107 ; 20 L. T. 604. That jurisdiction was not given by 21 Hen. 8, c. 11, nor is it given by 24 & 25 Vict. c. 96, s. 100. 11. A man was convicted of stealing cattle, which were sold by him on the following day in market overt, and were resold upon the same day, also in maitet overt, the purchases being bona fide :— Held, that the judge at the trial had jurisdiction to order the restitution of the cattle to the person from whose land the cattle had been stolen. Sei/. v. lioran, 6 Ir. R., C. L. 293. Attachment for Disohedience to.] — The order for restitution not being obeyed, a rule was obtained calling upon D. to shew cause why he should not be attached for contempt, and a cross rule was obtained calling upon the prose- cutor to shew cause why the order of restitu- tion should not be rescinded ; the court made the rule absolute for an attachment. Mecj. v. Woollez, Hart, In re, 8 Cox, C. C. 337. ffiouey found on Prisoner handed to Innocent Purchaser.]— By 30 & 31 Yict. c. 35, s. 9, wliere any prisoner shall ie convicted, either miivmarily or otherwise, of larceny or other offence, which includes the stealing of any property, and it shall appear to the court by the evidence that the prisoner lias sold the stolen propcHy to any person, and tliat such person has had no know- ledge that the same was stolen, and that any moneys have been taken from the prisoner on his apprehension, it shall be lawful for the court, on the application of such pv/rchaser, and on the restoration of the stolen property to the prose- cutor, to order that, out of such moTieys a sum not exceeding the amount of the proceeds of the sale be delivered to the purchaser. Award of Compensation to Prosecutor out of Forfeited Property.] — The Forfeiture for Felony Act, 1870 (33 & 34 Vict. c. 23), s. 4, which empowers the court to award any sum of money not exceeding lOOZ., by way of satisfaction or compensation for any loss of property suffered by the applicant through or by reason of felony, such sum to be " deemed a judgment debt to the person entitled to receive the same from the person so convicted," requires to be exercised with considerable caution, as being liable to abuse by arrangements in the nature of con- donation of a felony. Reg. v. Lovett, 11 Cox, C. C. 602. On an indictment of a servant for stealing money from his master, it had been arranged between the counsel for the prisoner and the prosecutor, that the prisoner should repay the money which he had stolen, and that the prose- cutor should recommend that he be discharged without punishment, on his own recognizances to come up for judgment when called upon, and that the court should order that sum to be pg,id as compensation to the prosecutor. The prisoner having pleaded guilty to the charge, aii ap- pUoation was made by counsel, stating the arrangement. But the courtirefused its assent to any compromise, as not being within the inten- tion of the act, which contemplated compensation 390 to the party wronged, as an addition to, and not as a substitute for the punishment due to the crime. lb. Taking or Advertising Rewards for return of Stolen Property.]— By 24 & 25 Vict. c. 96, s. 101, whosoever shall aon-iiptly talie any money or reward, directly or indirectly, under pretence or upon account of helping any person to any chattel, money, valuable secwity, or other pro- perty whatsoever, which shall, by any felony or misdemeanor, liave been stolon, talum, obtained, extorted, embezzled, converted or disposed of, as in this act before mentioned, shall (unless he shall have used all due diligence to cause the offender to be brought to trial for the same") be guilty of felony,' and being convicted thereof shall be liable, at the discretion of the court, to be hept in penal servitude for any term not' exceeding seven years and not less than fixe yea/rs (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years with or without hard labour, and with or witliout solitary confimement ; and, if a male under tlie age of eighteen years, with or without whipping.. (^Former provision, 7 & 8 Geo. 4, c. 29, s. 5S) It was an offence within 4 Geo. 1, c. 11, s. 4, to take money under pretence of helping a man to goods stolen from him, though the prisoner had no acquaintance with the felon, and did not pretend that he had, and though he had no power to apprehend the felon, and though the goods were never restored, and the prisoner had not power to restore them. Sex v. Leadbitter, . M. C. C. 76. By s. 102, whosoever shall publicly advertize a reward for the return of any property wliatso- evcr, which shall have been stolen or lost, and shall in such advertisemsnt use any words pur- porting that no questions will be ashed, or shall mdjie use of any words in any public advertise- ment purporting that a reward will be given or paid for any property which shall have been stolen or lost, without seizing or malting any in/iuiry after the person producing such pro- perty, or shall promise or offer in any such public advertisement to return to any pawn- broker or other person who may have bought, or advanced money by way of loan upon, any pro- perty stolen or lost, the money so paid or advanced, or any other sum of money or reward for the return of such property, or sliall print or publish a/ny such advertisement, shall forfeit tlie sum of 50Z. for every such offence, to any person who will sue for the same by action of debt, to be recovered with full costs of suit. (^Similar to former provision, 7 & 8 Geo. 4, c. 29, s. 59.) On an indictment against A., for corruptly and feloniously receiving from B. money under pre- tence of helping B. to recover goods before then stolen from B., and for not causing the thieves to be apprehended, three questions were left to the jury : First, did A. mean to screen the guilty parties, or to share the money with them 1 Second, did A. know the thieves, and intend to assist them in getting rid of the property, by promising B. to buy it ? Third, did A. know the thieves, and assist B., as her agent, and at her request, in endeavouring to purchase the stolen property from them, not meaning to bring the thieves to justice? The jury answered the first question in the negative, and the third in the affirmative : — Held, that the receipt of the money, Digitized by Microsoft® 391 CEIMINAL 'LAW— Larceny and Receivers. under the circumstances, was a corrupt receiving of the money by A. Beff. v. Pascoe, i New Sess. Cas. 66 ; 2 C. & K. 927 ; 1 Den. C. C. 456 ; T. & M. 141 ; 18 L. J., M. C. 186 ; 13 Jur. 544. 8. Effect op Laecbny on Ownership OF Property. Theft of Bond Payable to Bearer — Bona fide Holder of Value — Banker's Charge.] — A bank advanced moneys to a customer upon promissory notes, on the back of each of which he placed an indorsement by which he charged all his pro- perty, shares, or securities, which then were or which might be, at any time prior to the pay- ment of the note, " in the possession or power of the holder thereof for the time being," with the payment of the promissory note, and interest. After several such transactions had taken place, the customer obtained an advance upon a French bond, payable to bearer and transferable by delivery, and he subsequently handed the bank another French bond, and requested that both might be sold on his account. On the latter occasion he obtained no advance of money. On the bonds being sent to the bank's brokers for sale it was discovered for the first time that both had been stolen : — Held, that as to the first bond, the bank had a charge upon it, since an advance had been obtained upon it, but that as to the second bond, there was no such charge, since no advance having been made upon it, there could be no charge otherwise than by virtue of the charge endorsed upon the promissory note, which did not apply to the case, because it could only apply to property of the drawer of the note placed in the possession or power of the holder for a purpose not inconsistent with'an assertion of such a charge, and the bond in question was not so situated. Symons v.. Mulhern, 46 L. T. 763 ; 30 W. E. 875. Property Revesting in Owner on Convic- tion.]— By 7 & 8 Geo. 4, c. 29, s. 57, the property in a stolen chattel revests in the owTier on the conviction of the thief, and the owner may maintain trover for it, though there has been no order for restitution. Scattcrgood v. Sylvester, 15 Q. B. 506. Title Acquired before Conviction.] — A. and B. were convicted of stealing the goods of C. ; D., before they were convicted, acquired a title to the goods by making an advance of money, bona fide, to A., who was the servant and agent of C, and established his title to the goods in trover brought against him for their recovery by C. : — Held, that, notwithstanding the title had been acquired under 5 & 6 Vict. c. 39, by D., the goods on the conviction of A. and B. revested in C, and the court ordered them to be restored. Reg. v. Wollez, Hart, In re, 8 Cox, 0. C. 337. If a person is stopped with a horse under sus- picious circumstances, and the horse is placed at an inn by the police, the innkeeper has no lien on the horse for his keep, and if an auctioneer, by the direction of the innkeeper, sells the horse for its keep, he is liable to be sued in trover by the owner. Binns v. Pigot, 9 C. & P. 208. A bona fide purchaser of a horse from a person who has bought it, as the second purchaser knew, at a fair, without any evidence that he knew it Digitized by Microsoft® 392 was obtained dishonestly, although it has been purchased on credit, and not paid for, is entitled to maintain trover against the original owner for retaking it. North v. Jachson, 2 F. & F 198 By 24 & 25 Vict. c. 96, s. 100, if any person guilty (inter alia) of obtaining any chattel, money, or other property by false pretences " shall be indicted on behalf of the owner of the property and convicted, in such case the pro- perty shall be restored to Ihe owner." W. pur- chased and obtained delivery of certain sheep from the defendant by false pretences. The plaintiff purchased the sheep from W. and paid W. for them without knowledge of the fraud, the defendant having done nothing in the mean- time to avoid the contract between himself and W. The defendant finding that the sheep were on the plaintiff's premises retook possession of them ; W. having been convicted of obtaining the sheep by false pretences on the prosecution of the defendant :^Held, that the effect of 24 & 25 Vict. c. 96, s. 100, was not to revest the property in the sheep in the defendant as against the plaintiff, who had acquired a good title to them before the conviction, and consequently that the defendant was liable in an action by the plaintiff for the value of the sheep. Mayce V. Newington, 4 Q. B. D. 32 ; 48 L. J., Q. B. 125 ; 39L. T. 535; 27 W. E. 319. Sale of Stolen Beasts in Karket Overt — Claim by Purchaser against Owner for Cost of keeping the Beasts.] — ^The bona fide pur- chaser of stolen beasts sold in market overt caimot, in answer to a claim for them by the original owner after the conviction of the thief, counter-claim for the cost of their keep while the beasts were in the possession of the pur- chaser, for they were his own property until, on the conviction, the property revested in the original owner. Walker v. Matthews, 8 Q. B. D. 109 ; 51 L. J., Q. B. 243 ; 46 L. T. 915 ; 30 W. E. 338. B. RECEIVERS OP STOLEN PROPERTY. 1. Stattttoky Provisions. By 24 & 25 Vict. c. 96, s. 91, whosoever shall reeeive any chattel, money, valuaile security, or other property whatsoever, the stealiiig, taking, extorting, obtaining, embezzling, or otherwise disposing whereof shall amount to a felony either at common law or by virtue of this act, knotving the same to have been feloniously stolen, tahen, extorted, obtained, embezzled, or disposed of, shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact or for a siobstantive fdony,andin thelatter case, whether the principal felon shall or shall not have been jireriim-tly convicted, or shall or shall not be amenable to justice; and every such receiver, howsoever convicted, shall he liable, at the discretion of the covrt, to be hept in penal servitude for any term not exceeding fourteen and not less than five years (27 & 28 Vict. o. 47), or to be inipri-io?trd for nin/ term not e.reeeiJrng two years, with or leithoiit hard labour, and with or without solitary confinement, and, if a male under the age of sixteen, with or without whtp- vinn; provided, that no person, how.wvcr tried for receirinn as aforesaid, shall be liable to be prosecuted 'a second time for the same offence. {Former provision, 7 & 8 Geo. 4, c. 29, s. 54.) 393 CEIMINAL LAW — Larceny and Receivers. 394 By s. 95, whosoever shall rcceire any chattel, money, xaluaMe security, or other projjerty ichatsoever, the stealing, taldng, obtaining, con- 'verting, or disposing whereof is made a misde- tneanor by this act, Imowing the same to have been unlawfully stolen, taken, obtained, eon- •certed, or disposed of, shall be guilty of a misde- meanor, and may be indicted and convicted thereof, whether the person guilty of the]>rin- eipal misdemeanor sliall or sJiall not have been previously convicted tliereof, or shall or shall not be amenable to justice; and every such receiver, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penMl servitude for any term not exceeding seven years and not less than five years (27 & 28 Vict. c. 47), or to be imprisonsd for any term not exceedwig two years, with or without hard labour, and with or without solitary confine- ment, and, if a male under the age of sixteen years, with or without whipping. By s. 97, where the stealing or taking of any property whatsoever is by this act punishable on summary eon/viction, either for every offence, or for the first and second offence only, or for the first offence only, any person who shall receive any such 2)roperty, knowing the same to be un- lawfully come by, shall, on conviction thereof before a justice of tlie peace, be liable, for every first, second, or subsequent offence of receiving, to the same forfeiture and punishment to which a person guilty of a first, second or subsequent offence of stealing or taking such property is by this act made liable, 2. What is a Receiving. Beceiver or Principal.] — J. had employed M. to load sacks of oats, the property of J., from a vessel into the trams of K.,who was to carry them on the trams to the warehouse of K. By previous concert.'between M. and K., oats were taken by M. from two of the sacks and put into a nose-bag in the absence of K. and hidden under a tram. K. returned in a few minutes and took the nose-bag and its contents from under the tram, and took them away, M. being then within three or four yards of Mm : — Held, that K. was not a receiver but a principal in the larceny. Reg. v. McCarthy, 2 C. & K. 379. For Purpose of Concealment.] — If a receiver of stolen goods receives them for the mere purpose of concealment, without deriving any profit at all, he is just as much a receiver as if he had purchased them. Mex v. Richardson, 6 0. & P. 335. Taking into Possession.] — Without proof of an actual taking into possession, an indictment for receiving goods knowing them to have been stolen cannot be sustained. JReg. v. Sill, 3 New Sess. Cas. 3i8 ; 1 Den. C. C. 453 ; T. & M. 150 ; 2 C. & K. 978 ; 18 L. J., M. C. 199 ; 13 Jur. 545. A prisoner admits having bought an article, which is subsequently found in his house ; that is sufficient evidence for a juiy to convict of re- ceiving without proof of an actual receipt, or that he had ever been at the house from before the purchase to the time of the charge. Reg v Matthews, T. & M. 337 ; 1 Den. C. C. 596 ; 14 Jur. 513. In Harmony with or Opposition to Thief.]— W. stole a watch from A. ; and while W. and L. were in custody together, W. told L. that he had " planted " the watch under a flag in the soot-cellar of L.'s house. After this L. was dis- charged, and went to the flag and took up the watch, and sent his wife to pawn it : — Held, that, if L. thus took the watch in consequence of W.'s information, W. telling L. in order that he might use the information by taking the watch, L. was indictable for this as a receiver of stolen goods ; but that if this was an act done by L. in opposi- tion to W., or against his will, it might be a ques- tion whether it would be a receiving. Meg. v. Wade, 1 C. & K. 739 Control of Croods is Sufficient.] — Two men having stolen some fowls, put them into a sack and carried them into the house of the prisoner's father at about half-past four o'clock in the morning. After remaining in the house about ten minutes, the two men were seen to come out at a back door, one of them carrying the sack, and the prisoner going before them with a light. The stable-door was closed by one of the party, and when the policeman entered he found the two thieves and the prisoner standing round the sack, which lay on the floor untied, as if bar- gaining for the fowls : — Held, that this was not a receiving within the statute, the prisoner never having had the goods under his control, and the whole transaction being only inchoate. Reg. V. Wiley, 2 Den. C. C. 37 ; 4 Cox, C. C. 412 ; T. & M. 367 ; 20 L. J., M. C. 4 ; 15 Jur. 134. It is not necessary to prove an actual manual possession of stolen goods, in order to sustain an indictment for receiving the goods, but it is suf- ficient if the goods are shewn to have been under the control of the person charged with receiving. Reg. v. Smith, Dears. C. C. 494 ; 6 Cox, C. C. 554 ; 24 L. J., M. C. 135 ; 1 Jur., N. S. 575. A. was indicted for feloniously receiving a watch and a hat. It was proved that a police- man, in consequence of information received from B. (the thief), went to a room in a lodging-house where A. slept, and in a box in that room found the hat. A. admitted that the hat had been brought there by B., but denied all knowledge of the watch. On the following day A. was taken into custody, and he then told the police- man that he knew where the watch was, but did not like to say anything about it before the people of the house. A. then took the policeman to a place where he said the watch was, but it was not found there, but he afterwards sent a boy for the watch, and on the boy bringing the watch to A., he gave it to the policeman : — Held, that there was sufficient evidence to go to the jury. Reg. V. Ilobson, Dears. C. C. 400. It is not necessary, to constitute a receiving of stolen goods, that the pei-son indicted should have had manual possession of the goods ; but directing a servant to dispose of them, as by pawning or otherwise, will be sufficient to sup- port the chal-ge. Stolen property was brought by the thief into A.'s shop; A., with guilty knowledge, called a servant and directed her to take the stolen goods to a pawn office and " pawn them for the girl " (the thief). A.'s servant did so accordingly, and brought back the money, which she handed to the thief in her mistress's presence. A. never had manual possession of either the goods or the money :— Held, that this amounted Digitized by Microsoft® 395 CKIMINAL LAW — Larceny and Receivers. to a receiving by A. of the Btoleii property. Jleg. V. Miller, 6 Cox, 0. C. 353. Beceipt by Wife of Prisoner.] — Stolen goods were delivered by a thief to the wife of the prisoner in his absence ; she paid 6d. on account, but the amount to be paid was not then fixed. The prisoner and the principal felon afterwards met, when the prisoner, with the knowledge that the goods had been stolen, agreed upon the price and paid the balance : — Held, that he was pro- perly convicted of receiving the goods, knowing them to be stolen. Reg. v. Woodward, L. & C. 122 ; 9 Cox, C. C. 95 ; 31 L. J., M. C. 91 ; 8 Jur., N. S. 104 ; 5 L. T. 686 ; 10 W. R. 298. Husband and wife were jointly indicted for receiving goods, knovying them to have been stolen. The jury found both guilty, and that the wife received the goods without the control or knowledge of, and apart from, her husband, and that he afterwards adopted his wife's re- ceipt : — Held, that the conviction against the husband could not be sustained. Reg. v. Drhig, Dears. & B. C. C. 829 ; 7 Cox, C. C. 380 ; 3 Jur., N. S. 1132. But a husband may be convicted of feloni- ously receiving property which his wife has stolen voluntarily and without any constraint on his part, if he receives it knowing that she has stolen it. Reg. v. :M-Athcy, L. & C. 250 ; 9 Cox, C. C. 251 ; 32 L. J., M. C. 35 ; 8 Jur., N. S. 1218 ; 7 L. T. -133 ; 11 W. E. 73. 3. What is Stolen Peopebty. Goods of Partnership.]— The effect of the 31 & 32 Vict. c. 116, s. 1, by which a paitner or a joint owner in goods is rendered liable to be convicted of stealing goods in respect of which he is so jointly interested, is not to render the receiver of such goods, knowing the same to have been stolen by such partner, liable_ to be convicted as such receiver, under 21 & 25 Vict. c. 96, s. 91. Reg. v. SmUli, 1 L. E., C. C. 266 ; 39 L. J., M. C. 112 ; 18 W. E. 932. ^ ^ . . , A. and B. were in partnership, and B., m traua of the partnership, disposed of the goods of the firm to the prisoner, who knowingly received the same. The prisoner was indicted and convicted under the 24 & 25 Vict. c. 96, s. 91 :— Held, that the conviction could not be supported. lb. Wife taking Goods of Husband.]— A wife, though she may have committed adultery, can- not steal her husband's goods ; and therefore the adulterer receiving from her the goods which she has taken from her husband can^t be guilty of receiving stolen goods. Re;]. v.I^nny, I Q. B. D. 307 ; 13 Cox, C. C. 397 ; 46 L. J., M. C. 156 ; 36 L. T. 36 ; 25 W. E. 679. Stolen Goods discovered by Owner and Police.] —A lad was detained on leaving his masters premises, and a policeman sent for, who searched iim and took a stolen cigar from h™ m the master's presence. In consequence of the iaci s statement, the cigar was returned to him with five others, which the lad took to the prisonei and gave to him :— Held, that the prisoner could not be convicted of feloniously f <=eiving the ■cigars knowing them to be stolen, for that they wire not stolen property at the time they were received, the master and the policeman having .acted in concert in supplying the lad with the Digitized by Microsoft® six cigars, and instructing him what to do with them. Reg. v. Hancock, 38 L. T. 787. A prisoner was convicted of feloniously re- ceiving stolen goods under the following cir- cumstances : — The goods were stolen, and sent by the thief in a parcel by railway, addressed to the prisoner. A policeman belonging to the railway company, from information ho had re- ceived, examined the parcel at the railway station at the place of its destination and stopped it. It was called for by one of the thieves on the day of its arrival and refused to him. A porter of the company the next day, by the direction of the policeman, took it to a house which the thief who had called for it designated, and it was there received by the prisoner : — Held, that the conviction was wrong, as the goods had ceased to be stolen goods, within the statute, at the time of the receijit by the prisoner. Reg. V. Schmidt, 1 L. E., C. C. 15 ; 35 L. J.,' M. C. 94 ; 12 Jur., N. S. 149 ; 13 L. T. 679 ; 14 W. E. 286 ; 10 Cox, C. C. 172. Stolen goods were found by the owner in the pockets of the thief ; a policeman was sent for who took the goods and subsequently returned them to the thief, and the owner then sent the latter to sell them where he had sold others ; he accordingly sold them at the shop of D. D. was tried and convicted of receiving the goods know- ing them to have been stolen : — ^Held, that the conviction was wrong, as the facts did not con- stitute a receiving of stolen goods within 7 & 8 Geo. 4, c. 29, s. 54. Reg. v. Dolan, Dears. C. C. 436 ; 6 Cox, C. C. 449 ; 3 C. L. E. 295 ; 24 L. J., M. C. 59 ; 1 Jur., N. S. 72. 4. Joint Receivers, Statute.] — By 24 & 25 Vict. o. 96, s. 94, if upon the trial of any two or more persons in- dieted for jointly receiving any property it shall be proved that one or more of such persons separately received any part or pa/i-ts of such property, it shall be lawful for tliejury to con- vict, upon such indictment, such of the said persons as slutll be proved to have received any part or parts of such property. (_Former pro- vision, 14 & 15 Vict. c. 100, s. 14.) Proof of.] — Two or more persons may be in- dicted jointly for receiving stolen property, knowing it to have been stolen, though each successively received the whole of the same at different times, and it makes no difference whether the receipt was direct from the felon or fi-om an intermediate person. Reg. v. Rear- don or Rearden, 1 L. R., G. C. 31 ; 35 L. J., M. C. 171 ; 12 Jur., N. S. 476 ; 14 L. T. 449 ; 14 W. R. 663. , ..,. If two are charged ]ointly with receiving stolen goods, a joint act of receiving must be proved. Proof that one received m the absence of the other, and afterwards delivered to him, will not suffice. Rex v. Messingliam, 1 M. 0. 0. 257 Two were convicted under a count charging them with receiving goods knowing them to have been stolen, upon proof that they were pre- sent aiding and abetting a third receiver, who was found in actual possession of the box con- taining the goods, but the two f o^e^J^^^.^^/, "^^^ actual possession of the box -.-Held, that the conviction was right. Reg. v. Rogers, 37 L. J., M. C. 83. 397 CEIMINAL TiAW-^Larceny and Receivers. 398 Where A., knowing that goods have been stolen, directs B^, his servant, to receive them into his premises, and B., in pursuance of that direction, afterwards receives them in A.'s ab- sence, B. knowing that they have been stolen, they may be jointly indicted for receiving them. Reg. V. Pao-r, 2 M. & Kob. 346. 5. Indictment. Statute.]— By 24 & 25 Vict. c. 96, s. 92, in any ■indictment containing a charge of feloniously stealing any property it shall be lawful to add a count or several counts for feloniously receiv- ing the same or any part or parts thereof, know- ing the same to have been stolen, aiid in any indictment for feloniously receiving any pro- perty knowing it to have been stolen, it shall be laufv.1 to add a comit for feloniously stealing the same ; And if such indictment shall have been pre- ferred and found against two or more persons, it shall be lawful for tUeju/ry who shall try the same to find all or any of the said persons guilty either of stealing the property or of receiving the same, or any part or parts thereof, knowing the same to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receimng the same or any part or parts thereof knowing tJw same to have been stolen. (^Former provisions, 11 & 12 Vict. c. 46, s. 3 ; 14 & 15 Vict. c. 100, s. 14.) By s. 93, whenever any property whatsoever shall have heen stolen, taken, extorted, obtaitwd, embezzled or otherwise disposed of in such a manner as to amount to a felony, either at com- mon law or iy virtue of this act, any mimfer of receivers at different times of ,mch property, or of any part or pari s thereof, may be charged with substantive felonies in the same indict- ment, and may be tried together, notiirith stand- ing that the principal felon shall not be in- rhided in tlie same indictment, or shall not be in custody or amenable to justice. (^Former pro- vision, 14 & 15 Vict. c. 100, s. 15.) Property same in each Count.] — Where a count for feloniously receiving property knowing it to be stolen is joined with a count for feloniously stealing, it must appear with sufficient certainty that the property is the same in each count. Beg. V. Sarsfield, 6 Cox, C. C. 12. Property, how Described.] — A receiver, in the case of a sheep feloniously stolen alive and killed, should be stated to have received mutton. Hex V. Cowell, 2 Bast, P. C. 617. On an indictment for stealing and receiving a mixture, it appeared that the thief had stolen two sorts of grain, and mixed them and sold them to the prisoner : — Held, that the latter could not be convicted on such indictment. Beg. V. Bobinson, 4 F. & F. 43. Thief TJnknown.] — ^A receiver maybe indicted for receiving goods stolen by persons unknown. Bex V. Thomas, 2 East, P. C. 781 ; S. P., Bex v. Baxter, 2 East, P. C. 781 ; 2 Leach, C. C. 578 ; 5 T. B. 33. A count for a substantive felony in receiving stolen goods, which charged ^hat the goods were stolen by " a certain evil-disposed person," is good. Bex V. Jcrvis, 6 0. & P. 156. Goods, how Obtained.] — To bring a case of receiving within 7 & 8 Geo. 4, o. 29, s. 55, the indictment must allege the goods to have been obtained by false pretences and known to have been so. It is not enough to allege them to have been " unlavrfully obtained, taken and carried Beg. V. WUson, 2 M. C. 0. 52. Averment of Guilty Knowledge.] — An indict- ment against a receiver of stolen goods must aver the guilty knowledge, which is the gist of the offence, coiTcctly. Bex v. Kernon. 2 Buss. C. & M. 562. An indictment for receiving stolen goods alleged that the prisoner received the goods of A., " he, the said A., then knowing them to have been stolen." After a verdict of guilty, the counsel moved in arrest of judgment, on the ground that the scienter was omitted ; but the quarter sessions amended the indictment by striking out " A.," and substituting the name of the prisoner : — Held, first, that it was bad as it was originally framed. Beg. v. Larkin, Dears. C. C. 365 ; 6 Cox, C. C. 377 ; 2 C. L. E. 775 ; 23 L. J., M. C. 125 ; 18 Jur. 539. Held, secondly, that the objection was taken at the proper time. lb. Held, thirdly, that the indictment was not amendable after verdict. 1 b. Joinder of Counts.] — A count for stealing articles may not be joined with a count for receiving those and other articles, knowing them to have been stolen. Beg. v. Ward, 2 F. & F. 18. Goods " so as aforesaid Stolen."] — A first count charged the prisoner with stealing certain goods and chattels, and a second count charged him with receiving " the goods and chattels afore- said, of the value aforesaid, so as . aforesaid stolen." After objection that he could not be found to have feloniously received goods stolen by himself, the case went to the jury, and he was acquitted upon the first count and convicted upon the second : — Held, that the conviction was good. Beg. v. Huntley, Bell, C. C. 238 ; 8 Cox, C. C. 260 ; 29 L. J., M. 0. 170 ; 6 Jur., N. S. 80 ; 1 L. T. 384 ; 8 W. B. 183. Where a prisoner was indicted for stealing'^ goods, and in a subsequent count for receiving the goods, " so as aforesaid feloniously stolen," and the jury acquitted of the stealing and con- victed of the receiving, the conviction was affirmed upon a case reserved upon a motion in arrest of judgment. Beg. v. Craddock, T. & M. 361 ; 2 Pen. C. C. 31 ; 4 Cox, C. C. 409 ; 20 L. J., M. C. 31 ; 14 Jur. 1031. Where the receiving is so laid, the judge should direct the jury to acquit upon the count for receiving, if they should not find the prisoner guilty of stealing. lb. ] 6. Trial. a. Jurisdiction. Venue.]— By 24 & 25 Vict. c. 96, s. 96, whoso- ever shall receive any chattel, money, valuable security or other property whatsoever, knowing the same to have been feloniously or unlawfully stolen, taken, obtained, converted or disposed of, may, whether charged as an accessory after the fact to the felony, or mth u, substantive felony, or loith a misdemeanor only, be dealt with, Digitized by Microsoft® 399 CRIMINAL IjAW— Larceny and Receivers. indicted, tried and pwnislieU 'in any eounty or place in which he shall have or shall have had any such property in his possession, or in any county or place in which the party guilty of the principal felony or misdemeanor may by law he tried, in the same manner as such receirer may he dealt loith, indicted, tried and punished in the county or place where he actually received such property. QFormer enactmoif, 7 kS Geo i c. 29, s. 56.) The half of a bank note, which had been stolen during its transit through the post-office from S. in Wiltshire to Bristol, was afterwards inclosed by the prisoner in a letter addressed to the bankere at S., requesting payment of it. This letter was posted by the prisoner at Bath, and arrived with its contents in due course at S. There was no evidence of any receipt or posses- sion by the prisoner in Wiltshire : — Held', upon an indictment for receiving the stolen half note, that he was rightly tried in Wiltshire, as the possession of the post-office servants, or of the bankers in Wiltshire, was his possession, and the case therefore was within 7 & 8 Geo. i, c. 29, s. 56. Mcff. V. Cryer, Dears. & B. 0. C. 324 ; 26 L. J., M. C. 192 ; 3 Jur., N. S. 698. Jarisdiction shewn in Indictment.] — A count for receiving stolen goods in a different county from that in which the trial takes place, coupled with other counts for the larceny, under the 1 1 & 12 Vict. c. 46, must, by distinct and express averments, shew upon the face of it jurisdiction within the 7 & 8 Geo. 4, u. 29, s. 56. Meg. v. Martin, 3 New Sess. Gas. 575 ; T. & M. 78 ; 1 Den. C. C. 398 ; 2 C. & K. 950 ; 18 L. J., M. C. 137 ; 13 Jur. 368. Goods stolen Abroad.] — A person had stolen goods in Guernsey and brought them to England, where he was taken and committed for trial : — Held, that Guernsey not being part of the United Kingdom, he could not be convicted of receiving in England the goods so stolen in Guernsey. Reg. V. Debruiel, 11 Cox, C. C. 207. b. Practice. Plea.]— Plea by one prisoner, indicted singly for receiving stolen goods, of autrefois acquit, under an indictment against him and four others, on which one was convicted, and the prisraer and three others were acquitted, is good. Hex, V. Daun, 1 M. C. 0. 424. Election.]— By 24 & 25 Vict.o. 96, s. 92, where any such indictment shall have heen preferred and found against any person, the prosecutor shall not he put to his election, hut it shall be lawful for the jury who shall try the same to find a verdict of guilty, either of stealing the property, or of receiving the same, or any part or part's thsreof, hnowing tlie same to have heen In indictments under 11 & 12 Vict. c. 46, s. 3, there may be as many counts charging a felo- nious receiving as there are counts charging stealing ; and the prosecutor cannot be put to his election on what count or counts he will proceed. Beg. v. Seeton, 1 Den. 0. G. 414 ; 1. & M 87 • 2 C. & K. 960 ; 4 New Sess. Gas. 60 ; 2 Cox, G. C. 451 ; 18 L. J., M. C. 117 ; 13 Jur. 394. Digitized by Microsoft® 400 Principal found Guilty of Embezzlement.!— A. was indicted for embezzling H.'s goods, aiud for larceny of H.'s goods ; B. for receiving goods the property of H., knowing them to have been stolen. A. was found guilty of embezzling only, and B. for feloniously receiving :— Held, that the conviction of B. was right, for 7 & 8 Geo. 4, o. 29, s. 47, enacts, that every person who has embezzled within the meaning of that section, "shall be deemed to have feloniously stolen from his master," and that being so, B.'s offence was properly described in the count for receiving. Reg. V. Frampton, Dears. & B. C. C. 585 ; 8 Cox, G. C. 16 ; 27 L. .J., M. C. 229 : 4 Jur., N. S. 566. c. Evidence, Admissibility of.]— D. and G. were charged with jointly receiving stolen goods. The evidence was, that D. first received the goods on the road between B. and S. and that subsequently G. received a portion of them at S. ;— Held,, that the evidence as to the separate act of receiving by G. was improperly admitted, and that the indictment was satisfied by the proof of the receiving by D. Reg. v. Dovcy, 4 Gox, C. C. 428; 20 L. J., M. C. 105 ; 15 Jur. 230. If an indictment against a receiver states the principal felony to have been committed by A. ; whatever would have been evidence of the prin- cipal felony to convict A., is receivable to prove this allegation on the trial of the receiver, but is not conclusive. Rex v. Mich, 4 G. & P. 377. Evidence of Thief.] — An admission of his guilt, made by the thief while in custody, in the pre- sence of the receiver, is evidence against, the receiver. Reg. v. Cox, 1 F. & F. 90. On an indictment for feloniously receiving goods, knowing them to have been stolen, it is unsafe to convict a party as receiver on the evidence of the thief, unless it is confirmed. Reg. V. Rohinson, 4 F. & F. 43. On an indictment for receiving goods, knowing them to have been stolen, the mere fact that they were found on the prisoner's premises is not suffi- cient to confirm the evidence of the thief, so far as to make it proper to convict. Reg. v. Pratt, 4 F. & F. 315. Stealing must be Proved.] — In an indictment for receiving stolen goods, knowing them to have been stolen by a person named, the stealing by the person must be proved, or the receiver must be acquitted. Rex v. Woolford, 1 M. & Rob. 384. Knowledge or Belief that thing Stolen.]— Stolen property being found concealed in an old engine-house, and it being watched, the prisoners were seen taking it away : — Held, that, to warrant the conviction of the prisonei-s on an indictment charging them as receivers, the juiy must be satis- fied that the property had been stolen by some other person to the knowledge of the prisoners, and that there should be some evidence to shew that such was the case. RtJ! v. Denslcy, 6 C. & P. 399. Cp. Reg. v. Rymes, 3 C. & K. 327. To justify a conviction for receiving stolen pro- perty in the case of goods found, it is not sufficient to shew that the prisoner had a general knowledge of the circumstances under which the goods were taken, unless the jury is also satisfied that h? fcne\v p. 401 OEIMINAL LAW — Larceny and Receivers. 402 that the circumstances were such as constituted a larceny. Reg. v. Adams, 1 F. & P. 86. In an indictment for receiving goods, knowing them to have been stolen, belief without actual knowledge is sufficient to sustain it. Reg. v. Wliite, 1 F. & F. 665. Evidence of other Cases.] — By the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. 19, loliereproceedings are taken against any perscmfor having received goods knowing them to be stolen, or for having in his possession stolen property, evidence may te given at any stage of the pro- ceedings that there was found in the possession of suoli person other property stolen within the pre- ceding ^Jeriod of twelve m,ontJi.i, and such evidence may he taken into consideration for the purpose of proving that such person knew the property to be stolen, which forms the subject of thepro- cecdinxfs taken against him. Where proceedings are taken against any person for hating received, goods knowing them to be stolen, or forliaving in his possession stolen property, and evidence has been giren that the stolen property has been found in his posses.iion, then, if such person has within fire years imme- diately preceding been convicted of any offence involving fraud or dishonesty, evidence of such previous conviction may be given at any stage of the proceedings and may be taken into consider- ation for the purpose of proving that the person accused knew the property, which was proved to be in his possession, to have been stoIe7i ; provided that not less tlian seven days' notice in writiiu/ shall have been given to the person accused that proof is intended to be given, of such previous conviction; and it shall not be necessary for the purposes of this section to charge in the indict- ment the previous conviction of the person so accused. Possession of other Stolen Property Evidence of Receiving Stolen Goods.] — In order to give evidence of guilty knowledge under this section, it is not sufficient merely to prove that " other property stolen within the preceding period of twelve months" had at some time previously been dealt with by the prisoner. It must be proved that such " other property " was found in the possession of the prisoner at the time when he is found in possession of the property which is the subject of the indictment. Reg. v. Draqe, 14 Cox, C. C. 83. Prisoner was indicted for receiving stolen goods. To shew guilty knowledge evidence was tendered under 34 & 35 Vict. o. 112, s. 19, to shew that a short time previously the prisoner had sold for half its value and had otherwise disposed of other property stolen within the pre- ceding period of twelve months : — Held, that words of the statute, 34 & 35 Vict. c. 112, s. 19, did not extend to such evidence, which was therefore inadmissible. Ih. On the trial of an indictment for larceny and receiving stolen goods, evidence may be given under 34 & 35 Vict. c. 112, s. 19, that there was found in the prisoner's possession other property stolen within the preceding period of twelve months, although such other property is the sub- ject of. another indictment against him, to be subsequently tried at the same assizes. Req v Jones, 14 Cox, C. C. 3. On an indictment for receiving stolen goods, the onus of proving the knowledge that the goods were stolen is not shifted from the prosecution to the prisoner by service of a notice under 32 & 33 Vict. 0. 99 (Habitual Criminals Act, repealed 34 & 35 Vict. c. 112), s. 11, and proof of a pre- vious conviction. Reg. v. Barics, 1 L. R., C. C. 272 ; 39 L. J., M. C. 135 ; 22 L. T. 763 ; 18 W. B. 958. The Habitual Criminals Act, in case of a pre- vious conviction, has not the effect of throwing upon the prisoner the proof that when he received a stolen bank note, he did not know it to have been stolen, there being no words to that effect in the operative part of the clause. Reg. v. Harwood, 11 Cox, C. C. 388. If the prisoner at different times receives property stolen from the prosecutor, although the substantive charge must be confined to some one receiving, yet the other receivings may be given in evidence to shew a guilty knowledge that the goods were stolen. Rex v. Dunn, Car. C. L. 132 ; 1 M. C. C. 146. A prisoner was indicted for receiving stolen goods, knowing them to have been stolen ; to prove the scienter, evidence was given, that on a previous occasion other stolen goods, the pro- perty of different owners, had. been found in the possession of the prisoner : — Held, that the evidence was improperly admitted, as it is a general principle of the law of England, that proof that a man had committed one offence is no proof that he has committed another, and as the possession of stolen goods on a previous occasion could not shew any knowledge on the part of the prisoner that the particular goods mentioned in the indictment were stolen. Reg.. V. Oddy, 2 Den. C. 0. 264 ; 5 Cox, C. C. 210 ; T. & M. 593 ; 20 L. J., M. C. 108 ; 15 Jur. 517. A prisoner was to be tried on three indict- ments : for receiving stolen tin, for stealing iron, and for receiving stolen brass. A constable went with a search-warrant to search the pri- soner's premises for stolen iron, and, having read the warrant to the prisoner, the latter made a statement: — Held, on the trial of the first in- dictment, that the whole of the statement was receivable, although part of it related to the charge respecting the iron ; and also, that evi- dence might be given, that, at the time of the search, the prisoner endeavoured to conceal some brass, and also, that almost immediately after he was taken away from the premises, at the con- clusion of the search, his wife carried some tin under her cloak from a warehouse on the pre- mises. Reg. V. Mansfield, Car. & M. 140. On an indictment against A. for stealing, and B. for receiving goods, evidence that on various former occasions portions of the commodity stolen have been missed, and that the prisoners have, after such occasions, been found selling such a commodity ; and that on the last occasion it was part of what was stolen, is sufficient to fix the receiver with a guilty knowledge. Reg. V. NiahoUs, 1 F. & F. 51. Conviction when Evidence justifies Conviction as Principal in Second Degree.]— An indictment charged S. with stealing 18«. 6d., and C. with receiving the same. The facts were : S. was a barman at a refreshment bar, and C. went up to the bar, called for refreshments and put down a florin. S. served C, took up the florin, and took from his employer's till some money, and gave C. as his change 18.s. M., which C. put in his pocket and went away with it. On leaving the Digitized by Microsoft® 403 CEIMINAL LAW — Malicious Injury to Property. \ ! place he took some silver from his pocket, and was counting it when he was arrested. On entering the bar signs of recognition took place between S. and C, and C. was present when S. took the money from the till. The jury con- victed S. of stealing and C. of receiving : — Hold, that this was evidence which the judge ought to have left to the jury as reasonable evidence upon which C. might have been con- victed as a principal in the second degree ; and that therefore the conviction for receiving could not be sustained. Reg. v. Coggiiis, 29 L. T. 469. Where a person is charged in two counts with stealing and receiving, the jury may return a / verdict of guilty on the latter count, if warranted \ by the evidence, although the evidence is also \ consistent with the prisoner having been a prin- ) cipal in the second degree in the stealing. Req V. Hilton, Bell, C. C. 20 ; 28 L. J.. M. C 28 • V5 Jur., N. S. 47 ; 32 L. T., 0. S. 151 : 7 W. R. 59. r What Sufficient to support Conviction.] — / When a woman was indicted for larceny of a I gold chain, a bank note, and money, and also Vfor receiving, and the evidence against her con- pisted of the fact of the stolen property having /been found concealed on her person at about ften o'clock on the morning after the night on / which the property was stolen, and she made a / voluntary statement asserting that she had \ found the things, the judge directed the jury to i acquit her on the count for receiving, but the \ jury, notwithstanding, acquitted her on the ' count for larceny, bat convicted her of receiv- I ing, and the judge did not insist on the direction She had previously given, but reserved the ques- pon as to whether the evidence was sufficient in law to sustain the conviction on the count for receiving : — Held, that the evidence was sufficient. Reg. v. McMakon, 13 Cox, C. C. 27.5. Held, also, that whether the judge withdrew his direction as to the count for receiving or not, the evidence being sufficient in law to sustain the conviction,, it must stand. J J. B., a letter can-ier, and C. his mother, were indicted for receiving a gold pendant, knowing it to be stolen. Before the 23rd of October, a box containing the pendant, a brooch, and some other articles of jewellery, was sent by post to a Mrs. W., residing at D. A letter was posted at the same time. Both should have arrived that evening. Mrs. W. got the letter the next even- ing, but not the box. B. was a letter carrier at T>., but it would not have been his duty to deliver the letter and parcel. From the way the letters and parcels were sorted, he might have taken them, but so might others. On the 30th of October C. attempted to pawn the pendant. While she was in the pawn-shop, B. remained outside, and left along with her. Early in November, a girl who knew B. re- ceived a box by post, directed in B.'s hand- writing, containing the brooch which was in the box with the pendant : — Held, by a majority of the Irish judges, that the juiy was justified in convicting B. and C. of jointly receiving the pendant, knowing it to be stolen. Reg. v. Byrne, 4 Ir. E., C. L. 68. In an indictment for receiving goods knowmg . them to be stolen, evidence that the thief had at one time been lawfully employed to sell such 404 articles to the prisoner, will warrant an acquittal m the absence of any evidence that the prisoner knew that the authority had been withdrawn Reg. V. Wood, 1 P. & F. 497. The prisoner had been a lodger in the prose- cutor's house, and left under circumstances not disclosed. On the following day the prosecutor's wife also left the house, taking with her a small bundle. Two days after the prisoner was found in company with the prosecutor's wife (who was passing by the prisoner "s name) on board a ship bound for Quebec. Property belonging to the prosecutor, of a bulk greater than could have been comprised in the bundle taken by the wife, was found in the prisoner's cabin and upon his person : — Held, that there was some evidence to support a conviction for receiving the property, knowing it to have been stolen. Reg. v. Deer, L. & C. 240 ; 9 Cox, C. C- 225 ; 32 L. J., M. C. 33 ; 8 Jur.,N. S. 1216 ; 7 L. T. 366 ; 11 W. B. 43. Becent Possession.] — Where a prisoner was found in the recent possession of some stolen sheep, of which he could give no satisfactory account, and it might reasonably be inferred from the circumstances that he did not steal them himself : — Hejd, that there was evidence for the jury that he received them knowing them to have been stolen. Req. v. Langmead, L. & C. 427 ; 9 Cox, C. C. 464 ; 10 L. T. 350. XXIII. See Defamation- libel. -Fisher's '' Digest." XXIV. MALICIOUS INJURY TO PRO- PERTY, CATTLE AND OTHER ANIMALS. 1. Houses or Rmldings, hy Tenants. 2. Maniifaetuves and Materials. 3. Macluiicry, 406. 4. Mines, 408. . 5. Sea and R/rer Banlis, 410. 6. ShiiJS and Sea Signals, 411. 7. Fish Ponds, 413. 8. Trees, Shruis, Fences, and Vegetables, 413. 9. Hop-hinds, 415. 10. Worlisof Art,a.io. 11. Killing or Maiming Cattle or other Ani- mals, 416. 12. Real or Personal Property to Amount of hi., SjC., 418. 13. Indictment, 419. 14. Arson and Burning. — Sec ante, Abson. 1. Houses oe Buildings, by Tenants. Statute.]— By 24 & 25 Vict. c. 97, s. 13, who- soevei;heing possessed of any dwelling-house or other building, or part of any diLvlling-lmcse or other building, held for any term of yean or other lens term, or at will, or held over after the termination of any temncy, shall unlawfully and mnlleiously pull down or demohsh, or begin to pull down or demolish, the same or any part thereof, or shall unlawfully and maliewusly pull down or secer from the freehold any fixture leinq fi.red in or to such dwelling-house or Md- ing,orpart of such dwelling-house or huildimj, shall le guilty of a misdemeanor. 2. Manupactuebs and Matbeials. Destroying Materials or Implements.]— By 24 Digitized by Microsoft® 405 CEIMINAL LAW — Malicious Injwry to Property. 406 & 25 Vict. c. 97, s. 14, whosoever sliall unlawfully and maliciov.sly cut, ireali, or destroy, or damage loith intent to destroy or to render useless, any (foods or article of silk, woollen, linen, cotton, 'hair, mohair, or alpaca, or of any one or more of those materials mixed with each other or mixed with any other material, or any frame- worh-Jmitted piece, stocHng, hose, or lace, being in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process, or progress of manufacture, or shall unlawfully and maliciously cut, ireah, or de- stroy, or damage with intent to destroy or to render useless, any waiporshute of silh,iuoollcn, linen, cotton, hair, mohair, or alpaca, or of any one or more of those materials mixed with each iither or mixed with any other material, or shall unlawfully and maliciously cut, brcah, or destroy, or damage with intent to destroy or render use- less, any loom, frame, machine, engine, rach, tacMe, tool, or imjtlement, whether fixed or movable, prepared for or em^jloyed in carding, spinning, throwing, wearing, fulling, shearing, or othertoise manufacturing or preparing any such goods or articles, or shall by force enter into any house, shop, building, or place, with intent to commit any of the offences in this sec- tion mentioned, shall be guilty of felony, and being conxicted thereof shall be liable, at the discretio'n of the court, to be liept in penal servi- tude for life, or for any term 7iot less than five -years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, andieith or irithont solitary cmifinement, and, if a inale under the age of six- teen years, loith or witlwut u'hipping. (^Pre- vious enactment, 7 & 8 Geo. 4, c. 30, s. 3.) Stage, Process, or Progress.] — Goods remain in ■• a stage, process, or progress of manufacture," within 7 & 8 Geo. 4, 0. 30, s. 3, though the tex- ture is complete, if they are not yet brought into a condition fit for sale. Hex v. Woodhead, 1 M. & Kob. .549. A warp not sized, but on its way to the sizers to be sized to fit it for being used in manufactur- ing goods, is not a " waip in any stage, process, or progi'ess of manufacture," or prepared for or em- ployed in carding, spinning, &c., within 7 & 8 Geo. 4, c. 30, s. 3, though the indictment is not bad for not ayerring it to be so. Meg. v. Clegs. 3 Cox, C. C. 295. Tackle.] — The cords ehiployod to raise the harness or the working tools of a loom, in order to move the shuttle to and fro, constitute tackle employed in weaving, and, therefore, cutting them was an offence within 7 & 8 Geo. 4, c. 30, s. 3. Reg. v. Smith, 6 Cox, C. C. 198. Under this statute, the maliciously cutting such tackle is a complete offence, and it is unnecessary to aver or prove an intent to destroy or render it useless. lb. Quasre, whether cutting the thmm, i.e., the ends of the woollen threads generally left in the machine when a piece of cloth is finished, for the purpose of more readily adjusting the succeeding work, is an offence within the statute. At all events, it does not support a count for maliciously cutting woollen warp ; but the fact of cutting the thrum may be given in evidence in support of a count for cutting tackle, in order to shew the animus of the latter act, and that it was done maUcioxislv. lb. Frame — Eemoving Part.] — The taking out and carrying away the piece of iron called the half- jack, from a frame used for the making of framework-knitted stockings, was a damaging the frame, within 28 Geo. 3, c. 55, s. 4, as it made the frame imperfect and inoperative, although the part taken out was not injured, and the replacing it would again make the frame perfect. Bex v. Taeey, E. & B. C. C. 452. Loom — Destroying Part of.] — The cutting or destroying part of a loom was not within 22 Geo. 3, c. 40, s. 1, although the charge in the indict- ment was of an intent to cut and destroy certain tools employed in the woollen trade. Rex v. - Hill, E. & E. C. C. 483. Indictment.] — ^An indictment on 7 & 8 Geo. 4, c. 30, s. 3, for feloniously damaging warps of linen yarn, with intent to destroy or render them useless, need not allege that the warps at the time of the "damage done were prepared for or employed in carding, spinning, weaving, &c., or othei-wise manufacturing or preparing any goods or article of silk, woollen, linen, &c. Rex v. Ashton, 2 B. & Ad. 750. 3. Machinery. Destroying or rendering Useless.] — By 24 & 25 Vict. c. 97, s. 15, whosoever shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any machine or e^igine, whether fixed or movable, used or intended to be used for soiviTig, reaping, mowing, threshing, pdoughin^, or draining, or for jicrfoi-ming any other agricultural operation, or any machine or engine, or any tool or imple- ment, whether fixed or movable, prepared for or employed in amy manufacture lohatsoever {except tiic manufacture of silh, woollen, linen, cotton, hair, mohair, or alpaca goods, or goods of any one or more of those materials mixed with each other or mixed with any other material, or any frameworh-hnitted piece, stocMng, hose, or laec), shall be guilty of felony, and, being convicted thereof, shall be liable, at the discre- tion of the court, to be hept in penal servitude for any term not exceeding seven years, and not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two_ years, irith or loithmd hard labour, and with or mthout solitary cmifinement, and, if a male under the age of sixteen years, with or without whipping. (Former enactments, 7 & 8 Geo. 4, c. 30, s. 4, and 7 Will. 4 & 1 Vict. c. 90, s. 5.) Damaging with Intent to render Useless.] — A person plugging up the feed-pipe of a steam- engine, and displacing other parts of the engine in such a way as rendered it temporarily useless, and would have caused an explosion if the obstruction had not been discovered, and with some labour removed, is guUty of damaging the engine, with intent to render it useless within 24 & 25 Vict. c. 97, s. 15. Reg. v. Fisher, 1 L. E., C. C. 7 ; 35 L. J., M. C. 57 ; 11 Jur., N. S. 983 ; 13 L. T. 380 ; 14 W. E. 58 ; 10 Cox, C. C. 146. Machines— What are.] — Ploughs of the de- scription commonly used in agriculture are machines within the statute. Seg. v. Gray, 9 Cox, C. C. 417 ; L. & C. 365 ; 33 L. J., M. C.'78 ; 10 Jul-., N. S. 160 ; 9 L. T. 733 ; 12 W. E. 350. Digitized by Microsoft® 407 CRIMINAL LiAM— Malicious Injury to Property. Water-wheel Destroyed — Other Means of setting Machine in Motion.]— A. had a thresh- ing-machine worked by water, the water-wheel having been put up for the sole purpose of work- ing this machine, and never having been used for anything else ; A., fearing the destruction of the machine by a mob, took it dovra, leaving the water-wheel standing. The prisoners broke the water-wheel :— Held, to be a felony, under 7 & 8 Geo. 4, c. 30, s. i ; and the fact that A. some- times worked the threshing-machine by horses made no difference. Meie v. Fidler, 4 C. & P 449. Machine taken to Pieces — Part only De- stroyed.]— If a pei-sou has had a threshing- machine taken to pieces, he expecting a mob to come and destroy it, and the mob comes and destroys the difEerent parts of the machine when thus separated, this was a felony within 7 & 8 Geo. 4, c. 30, s. 4. Rex v. Maeherel. 4 C. & P. 448. Where the prisoner was indicted for destroy- ing a threshing-machine, and it appeared that it had been previously taken to pieces by the owner, by separating the arms and other parts of it, for the purpose of placing it in safety, but with a view to put it together again, and it was destroyed whilst in this disjointed state ; it was decided that the offence was within 7 & 8 Geo. 4, c. 30, s. 4. Bex v. HutcTihu, Deac. C. L. 1517. Where certain side boards were wanting to the machine at the time it was destroyed, but which did not render it so defective as to prevent it altogether from working, though it would not work so effectually as if those boards had been made good : — Held, that it was still a threshing- machine within the meaning of the statute. Bex V. Sartlett, Deac. C. L. 1517. Where the owner removed a wooden stage be- longing to the machine on which the man who fed the machine was accustomed to stand, and had also taken away the legs, and it appeared in evidence that though the machine could not be conveniently worked without some stage for the man to stand on, yet that a chair or table, or a number of sheaves of com, would do nearly as well, and that it could also be worked without the legs ; it was held, that the machine was an entire one within the act, notwithstanding the stage and legs were wanting. Bex v. Cimii, Deac. C. L. 1518. But where the prosecutor had not only taken the machine to pieces, but had broken the wheel of it, before the mob came to destroy it, for fear of having it set on fire and endangering his premises, and it was proved that without the wheel the engine could not be worked ; in this case it was held, that the remaining parts of the machine, which were destroyed by the mob, did not constitute a threshing-machine within the meaning of the statute. Bex v. West, Deac. 0. X. 1518. Indictment.] — An indictment under 24 & 25 Yict. c. 97, s. 15, for damaging a machine, with intent to destroy the same, charging the offence to have been committed " unlawfully and mali- ciously," in the language of the statute, but omitting the word "feloniously," is bad, as the word " feloniously " is a term of art and necessary in all indictments for felony, whether at common law or created by statute. Beg. ^, Grti^f, 9, Qox, 408 C. C. 417 ; T ^T „. L- 'S' C. 365 ; 33 L. J., M. C. 78 ; 10 Jur., N. S. 160 ; 9 L. T. 733 ; 12 W. K. 350. Evidence— Admissibility.]— On an indictment tor breaking a threshing-machine, the judge allowed a witness to be asked whether the mob by whom the machine was broken did not compel pei-sons to go with them, and then compel each person to give one blow to the machine • and also whether, at the time when the prisoner and himself were forced to join the mob, they did not agree together to run away from the mob the first opportunity. Bex v. Crutchley, 5 G. k 4. Mines. Setting Fire to.]— By 24 & 25 Vict. c. 97, s. 26, whosoever sImU vnlawfuUy and malioiously set fire to any mine of coal, eannel coal, anthra- cite, or otliei- mineral fuel, shall le guilty of felony, and, heiiig convicted thereof shall he liable, at the discretion of the court, to he licjit iiipenal sermtude for life, or for any term not less than five yeai-s (27 & 28 Vict. c. 47), or to he imprisoned for any term not exceeding tico years, loith or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, loith or without whipping. {Former provision, 7 AVill. 4 & 1 Vict. c. 89. s. 9.D Attempt to Set Fire to.] — By s. 27, whoso- ever shall unlawfully and maliciously, hy any overt act, attempt to set fire to any mine, under such ci rcumsta9iees that rfthe mine were thereby set fire to, the offender would he guilty of felony, shall he guilty of felony. (^Former provision, i k. 10 Vict. c. 25, s. 7.) Attempting to Drown.] — By s. 28, whosoever shall unlavfully and maliciously cause any water to he coTweyed or run into any mine, or into any subterraneous passage communicating therewith, with intent thereby to destroy or dam- age such mine, or to hinder or delay ths worlting thereof, or shall with the lilie intent unlawfully and maliciously pull down, fill u^J, or obstruct, or damage with intent to destroy, obstruct, or render useless, any airway, waterway, drain, pit, level, or shaft of or belonging to any mine, shall he guilty of felony : provided that this provision shall not extend to any damage com- mitted underground hy any oicncr of any ad- joining mine in working the same, or hy any person duly employed in such worhing. (Former provision, 7 & 8 Geo. 4, c. 30, s. 6.) Servants innocently acting under Master's Orders.] — If A. and B. were the owners of ad- joining mines, and A. asserting that a certain airway belonged to him, directed his workmen to stop it up, and they, acting bona fide, and believing that A. had a right to give such an order, did so, they were not guilty of felony within the 7 & 8 Geo. 4, c. 30, s. 6, for stopping up the airway of a mine, even though A. knew that he had no right to the aii-way ; but if either of the workmen knew that the stopping up of the airway was a malicious act of his master, such workman would be guilty of the felony. Beg. V. James, 8 C. & P. 131. Acts done in Exercise of Supposed Eight.]— The provisions of the 24 & 25 Vict c. 97, s. 28, fed by Microsoft® 409. CEIMINAL LAW — Malicious Injury to Property. 410 which enact that " whosoever shall unlawfully and maliciously do certain acts therein specified, with intent to damage or obstruct a mine, or the working or apparatus of a mine, shall be guilty of felony," do not render a person criminally liable for acts causing such damage, but done in a bon4 fide exercise of a supposed right, and without a wicked mind. Meg. v. Matthews, 14 Cox, C. C. 5. Indictment — Property, iniwhom Laid. ] — In an indictment under 7 & 8 Geo. i, u. 30, s. 6, the mine might be laid as the property of the person in possession and working it, though only an agent for others. Reg. v. Jones, 2 M. C. C. 293 ; 1 C. & K. 181. Damaging Engines for Working,] — By s. 29, ivhosoever shall nnlawfully and maliciously pull doion or destroy, or dmnage with intent to df-itroy or render useless, amy steam-engine or other engiTie for sinhing, draining, ventilating, or worJiing, or for hi anywise assisting/ in sink- ing, draining, ventilating, or worliing any mine, or any appliance or apparatus in comiexion lolth any such steam or other engine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, waggon- loay, or trunh for conveying minerals from any mine, whether such engine, staith, building, erection, bridge, waggon-way, or trunh be com- pleted or in an unfinished state, or shall unlaw- fully and maliciously stop, obstruct, or hinder the working of any such steam or other engine, or of any such appliance or apparatus as aforesaid, with intent thereby to destroy or damage any mine, or to hinder, obstiiict, or dcla,y the working thereof, or shall unlawfully and maliciously wholly or piaHially cut through, sever, breah, or unfasten, or damage ivith intent to destroy or render useless, any rope, chain, or tachle, of whatsoever material the same shall be m-ade, used in any mine, or in or upon any inclined plane, railway, or other way, or other work whatsoever, in anyioise belonging or ap- pertaining to, or connected with, or employed in any mine, or the working or business there- of, shall be guilty of felony. (^Former enact- ments, 7 & 8 Geo. 4, c. 30, s. 7 and 23 & 24 Vict, c. 29, s. 1.) Erection used in Business of Mine.] — The bottom of the shaft of a mine had water in it, and the owner of the mine had caused a scaffold to be erected at some distance above the bottom of the mine, for the purpose of working a vein of coal which was on a level with the scaffold : — Held, that this scaifold was an " erection used in the conducting the business of a mine," within 7 & 8 Geo. 4, o. 30, s.. 7, and the damaging it, with intent to destroy it, or to render it useless, was felony. Beg. v. Whittingham, 9 C. & P. 235. Engine— Proof of Damage to Drum.]— A coal mine was worked by a steam-engine, which . caused a cylinder, called a " drum," to revolve and take up the rope as the coal was drawn up from the mine : — Held, that proof of damaging the drum would not support an indictment which charged the damaging a steam-engine used in working a mine. lb. Driving when no Machinery attached. ] — A steam-engine used in draining and working a mine had been stopped and locked up for the night. The prisoner got into the engine-house, and set it going, and there being no machinery attached, the engine went with great velocity, and received damage : — Held, that this was a damaging of the engine, within 7 & 8 Geo. 4, c. 30, s. 7. Heg. v. Norris, 9 C. & P. 241. Acts done in Exercise of Supposed Bight.]— The provisions of the 24 & 25 Vict. c. 97, s. 29, do not render a person criminally liable for acts causing such damage, if done in a bonS, fide ex- ercise of a supposed right, and without a wicked mind. Beg. v. Matthews, 14 Cox, C. C. 5. 5. Sea and Kivee Banks. Statute.]— By 24 & 25 Vict. u. 97, s. 30, who- soever shall unlawfully and maliciously break down, or cut down, or otherwise damage or destroy any sea bank or sea wall, or the bank, dam, or wall of or belonging to any river, canal, drain, reservoir, pool, or marsh, lohereby any land or building shall be, or shall be in danger of being, overflowed or damaged, or shall un- lawfully and maliciously throw, breah, or cut down, level, undermine, or otherwise destroy any quay, wharf, jetty, lock, sluice, floodgate, weir, tunnel, towing-path, drain, watercourse, qr otlier work belonging to any port, harbour, dock, or reservoir, or on or belonging to any navigable river or canal, shall be guilty of felony. QFormer jjrovision, 7 & 8 Geo. 4, c. 30, s. 12.) By s. 31, whosoever shall unlawfully and maliciously cut off, draw up, or remove any piles, chalk, or other materials fixed in tlie ground, and used for seeming any sea bank, or sea wall, or the bank, dam, or wall of any river, canal, drain, aqueduct, marsh, reservoir, pool, port, harbour, doeli, quay, wharf, jetty, or lock, or shall unlawfully and maliciously open or draw uji any fioodgate or .sluice, or do any other injury or mischief to any navigable river or canal, with intent and so as thereby to ob- struct or prevent the carrying on, completing, or maintaining the navigation thereof, shall be guilty of felony. (Former provision, 7 &-8 Geo. 4, c. 30, s. 12.) Obstructing Passage over Sea Bank.] — By a haven improvement act, any person who shall place on any space of ground immediately adjoining to the haven, and within the space of ten feet from high-water mark, any goods, materials, or articles whatsoever, so as to ob- struct the free and commodious passage through and over the same, shall forfeit and pay any sum not exceeding U. B. placed three boats on the space of ground immediately adjoining the haven, and within the space of 10- feet from high-water mark, so as to obstruct the free and commodious passage to and over the same. There was no public right of passage over the space of ground, and it was occupied by B. : — Held, by Cockbum, C. J., Crompton, J., and Blackburn, J., that B. could not be convicted, as the provision could only apply to cases where a public right of passage existed ; but by Wightman, J., that by the express terms of the act, and the apparent intention, the provision extended to such a case, and that B. was liable to be convicted. Harrod v. Worship, 30 L. J., M. C. 165. Digitized by Microsoft® 411 CRIMINAL LAW — Malicious Injury to Property. 6. Ships and Sea Signals. Setting Fire to, Casting Away, or Destroying Ships.]— By 24 & 25 Vict. c. 97, s. 42, whosoever sJuill uiilaivfuUy and maliciously set fire to, cast away, or in anywise destroy any shixJ or 'Vessel, whether the same be com2>lete or in an unfinislied state, shall he guilty of felony. (^Former provis-ion, 7 Will. 4 & 1 Vict. c. 89, s. 6.) By s. 43, ivhosoever shall unlawfully and maliciously set fire to, or cast away, or in any- wise destroy any shijj or vessel, with intent therety to prejudice any owner or part oicncr of such ship or vessel, or of any goods on hoard the same, or any person that has underwritten or shall underwrite any policy of insurance upon such shij) or vessel, or on the freight there- of, or Upon any goods on hoard the same, shall he guilty of felony. (^Former provision, 7 Will. 4 & 1 Vict. c. 89, s. 6.) By s. 44, whosocrer shall unlawfully and maliciously, hy any overt act, attempt to set fire to, cast away, or destroy any ship or vessel, under such circumstances that, if the ship or vessel ■were therehy set fire to, cast away, or destroyed, the offender ictnild he guilty of felony, shall he guilty of felony. By s. 45, tcJwsoercr shall unlawfully and maliciously place or throio in, into, upon, against, or near any ship or vessel any gunpowder or other ex])losive suhstance, with intent to destroy or damage any ship or vessel or any machinery, working tools, goods, or chattels, shall, whether or not any explosion tahe place, and whether or not any injury he effected, he guilty of felony. By 12 Geo. 3, c. 24, it is a capital offence to hum the Quern's ships of war. Bevolt on Ship.] — It was an offence within 11 & 12 Will. 3, u. 7, s. 9, to make a reTolt in a ship, or to endeavour to make one, though the object is not to run away with the ship, or to commit any act of piracy, but to force the captain to redress supposed grievances. Rex v. Hastings, 1 M. C. C. 82. If the crew, or part of the crew, of a ship com- bine together to resist the captain, especially if the object is to deprive him of his command, it will amount to making a revolt, within 11 & 12 Will. 3, 0. 7, s. 9 ; and it will be no answer to shew that there were grievances, which, by their resistance, the men sought to redress. Beg. v. McGregor,! C. & K. 429. Intent to Prejudice Part-owner.]— The de- struction of a vessel by a part-owner shews an intent to prejudice the other part-owner, though he has insured the whole ship, and promised that the other part-owner should have the benefit thereof. Rex v. Philp, 1 M. C. C. 264. Party in this Country to Conspiracy.]— On an indictment against a foreigner, who was ship's carpenter on board a foreign merchant ship, tor conspiring in this country, with the foreign owner and master, to destroy or cast away the vessel, with intent to prejudice the ownei-s of goods on board, or the insurers of the ship or cargo, it being admitted that the prisoner was party to the scuttling of the ship on the high seas, the jury was directed to consider whether the prisoner was a party in this country to a previous plan or conspiracy to destroy the ship, Digitized by Microsoft® 412 not limited to its destination on the high seas, the principal ofEence not being triable in this country. Meg. v. Kohn, 4 F. & F. 68. Cast Away or Destroyed.] — If a ship was stranded, and afterwards got off in such a state as to be easily refitted, she could not be said to have been cast away or destroyed, under 4 Geo. 1, c. 12, and 11 Geo. 1, c. 29. Rex v. De Londo, 2 East, P. C. 1098. Accessory before Fact.] — A person might be tried under 7 Will. 4 & 1 Vict. c. 89, ss. 6, 11, as an accessory before the fact to the ofEence of setting fire to a vessel of which he was a part- owner. Reg. V. Wallace, Car. & M. 200. Convicted though Principal not Tried.] — An indictment was properly framed, which stated that the principal felon cast away and destroyed a vessel, and that the accessory incited, moved, aided, counselled, hired and commanded him to do it ; and the accessory might be con- victed on an indictment so framed, although the principal had not been tried, and did not appear to be amenable to justice. Ih. No Goods on Board.] — The underwriters on a policy on goods fraudulently made were within 7 Will. 4 & 1 Vict. c. 89, s. 6, though no goods were put on board. Reg. v. Wallace, 2 M. C. C. 200. Exhibiting False Signals, &c.]— By 24 & 25 Vict. u. 97, s. 47, whosoever shall unlawfully mash, alter, or remove any light or signal, or unlawfully exhibit any false light or signal, ivith intent to hring any ship, vessel, or boat into danger, or shall unlaufully and maliciously do anything tending to the immediate loss or destruc- tion of any ship, vessel, or boat, and for which no punishment is hereinbefore provided, shall he guilty of felony. (^Former provision, 7 Will. 4 & 1 Vict. c. 89, s. 5.) Bemoving or Concealing Buoys and other Sea Marks.] — By s. 48, whosoever shall unlawfully and maliciously cut away, cast adrift, remove, alter, deface, sink, or destroy, or shall unlawfully and maliciously do any act viith intent to cut away, cast adrift, remote, alter, deface, sink, or destroy, or shall in any manner unlawfully and maliciously injure or conceal any boat, buoy, buoy-rope, perch, or mark used or intended for the guidance of seamen or the purpose of naviga- tion, shall be guilty of felony. Destroying Wrecks, or Articles of Ships in Distress ] By s. 49, whosoever shall unlawfully and maiiciously destroy any part of any ship or vessel which shall be in. distress, or wrecked, stranded, or cast on shore, or any goods, mer- chandize, or articles of any land belonging to such ship or vessel, shall be guilty of felony former provision, 1 Will. 4 & 1 Vict. c. 89, s. 8.) hip or vessel, Damaging otherwise than by Fire.]-By s. 46, whosoever shall unlawfully and maliciously dam-age, otherwise than by fire, gun other explosive substance, any ship whether complete or in an unfinished state, with fntZtto destroy the same, or render the same teless, shall be Uilty of felony ^Form-er pro- vision, 7 & 8 Geo. 4, o. 30, s. 10.) CRIMINAL LAW — Malicious Injwry to Property. 413 Indictment.] — An indictment on 7 & 8 Geo. 4, c. 30, s. 10, for damaging a vessel need not have stated that the damage was done "otherwise than by iire," if it stated how it was done. Rex V. Bowyer, 4 0. & P. 559. 7. Fish Ponds. Statute.] — By 24 & 25 Vict. c. 97, s. 32, wlio- soever shall unlawfully and maliciovsly cut through, Ireah down, or othei-ioise destroy the dam, floodgate, or sluice of any fish pond, or of any water which shall be private property, or in which there shall he any prirate right of fishery, icith intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or destiiiction of any of the fish, or shall unlawfully and maliciously put any lime or other noxious material in any such pond or water, with intent thereby to destroy any of the fish that may then be or tMt may thereafter be put therein, or shall unlawfully and maliciously cut through, breah down, or otherwise destroy the dam or floodgate of any mill pond, reservoir or pool, shall be guilty of a misdemeanor. (^Former provision, 7 &^S Geo. 4, c. 30, s. 15.) Object to Steal Fish.] — The breaking dovsm the head or mound of a fish pond was not a felony within 9 Geo. 1, u. 22, if it appeared to have been the object of the offenders to steal the iish, and not to let them escape through the breach in the mound. Jtcn v. Moss, R. & E. C. C. 10 ; 2 East, P. C. 1067. 8. Tkebs, Shrubs, Fbnces, and Vegetables. Trees and Shrubs.]— By 24 & 25 Vict. c. 97, s. 20, whosoever shall unlawfully and maliciously cut, break, barh, root up or otherwise destroy or damage the whole or any paH of any tree, sapling or shi-ub, or any underwood, growing in any parh, pleasure-ground, garden, orchard or avenue, or in any ground adjoining or belonging to any dwelling-house (in case the amount of injury done shall exceed the sum of 11."), shall be r/uilty of felony. (Former provision, 7 & 8 Geo. 4, 0. 30, s. 19.) By s. 21, lohosoever shall unlawfully and maliciously cut, ircah, barh, root up, or other- wise destroy or damage the whole or any part of any tree, sapling or shrub, or any underwood, groioing elsewhere than in any parh, pleasure- ground, garden, orchard or avenue, or in any ground adjoining to or belonging to any dwelling- house (m case the amount of injury done shall exceed the sum of 51.}, shall be guilty of felony. (Previous enactment, 7 & 8 Geo. 4, c. 30, s. 19.) Total Destruction Unnecessary.] — Cutting down a tree was sufficient to bring the case within 9 Geo. 1, c. 22, although the tree was not thereby totally destroyed. Rex v. Taylor, E. & R. C. C. 373. Where Title to Place in Dispute.] — Where shrubs are cut, upon an unproved allegation that they were lilsely to be injurious to an adjoining wall, it is a malicious trespass, though the title to the spot on which the shrubs grew is in dispute between the parties. Rex v. Whateley, 4 M. & R. 431. Trees, what are.] — Apple and pear trees grafted 414 in a wild stock, and producing fruit, were trees within 9 Geo. 1, e. 22. Rex t. Taylor, R. & E. C. C. 373. Amount of Damage.] — A party might be con- victed under the 7 & 8 Geo. 4, c. 30, s. 24, of having wilfully and maliciously damaged grow- ing wood, to the value of sixpence, though s. 20 expressly imposed a penalty for unlawfully and maliciously damaging such wood, "the injury done 'being to the amount of one shilling at least." Reg. v. Dodson, 9 A. & E. 704. Indictment — Name of Owner.] — In, an indict- ment on 6 Geo. 3, c. 36, for destroying trees, the name of the o-svner of the trees must have been truly stated, otherwise it was fatal. Rex v. Patrich, 2 Bast, P. C. 1059. And see Rex v. Howe, 1 Leach, C. 0. 481 ; 2 East, P. G. 588. Feloniously.] — The prisoner was indicted for damaging apple trees growing in a garden, and the indictment alleged that the damage was done feloniously and not unlawfully or ma- liciously : — Held, bad. Rex v. Lewis, 2 Russ. C. & M. 1066. — — Damage, Amount of.] — Evidence of damage committed at several times in the aggre- gate, but not at any one time exceeding 51., will not sustain an indictment. Reg. v. Williams, 9 Cox, C. C. 338. Amount of Damage.] — By s. 22, .shall unlawfully and maliciously cut, break, bark, root up, or othsrwise destroy or damage the whole or any part of any tree, sapling or shrub, or any wnderwood, wheresoever the same may be growi7ig, the injury done being to the amount of Is. at the least, shall, on conviction thereof before aju.itice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, tliere to be im- prisoned only, or to be imprisoned and, kept to hard labour for any term not exceeding three months, or else shall forfeit and pay, over and above the amount of injury done, such sum of money, not exceediiig 51., as to the justice shall seem meet ; and whosoever, having been convicted of any such offence, either against this or ajiy former act of parliament, shall afterwards com- mit any of the said offences in this section before mentioned, and shall be convicted thereof in like manTicr, shall for such second offence be com- mitted to the common gaol or house of correction, tluire to be kept to hard labour for such term, not exceeding twelve months, as the convicting justice shall think fit ; and whosoever, having been twice convicted of any such offence (wlwthiir both or cither of such convictions shall hare taken place before or after the passing of this act), shall afterwards commit any of the said offences in this section before mentioned, shall be guilty of a misdemeanor. (Previous enact- ment, 7 & 8 Geo. 4, c. 30, s. 20.) Consequential Injury Insufficient.] — A person was indicted under 7 & 8 Geo. 4,^ c. 30, s. 19, for having feloniously, unlawfully and maliciously done damage to trees in a hedge, thereby doing injury to the owner to an amount exceeding 51. The evidence shewed that the actual injury done to the trees was to the amount of \l. only, but that it would be necessary to stub up the old Digitized by Microsoft® 415 CEIMINAL TiAW—Malicioiis Injury to Property. hedge and replace it, the expense of which would be il. lis. The jury found him guilty : — Held, that the conviction was wrong, inasmuch as the injury exceeding 51. must be actual injury to the trees, and that proof of consequential injury was insufficient. Meg. v. Whiteman, Dears. C. C. 353 ; 6 Cox, C. C. 370 : 23 L. J., M. C. 120 ; 18 Jur. 434. Vegetables in Gardens.] — By s. 23, whosoever uliall unlawfully and maliciously destroy, or damage with intent to destroy, anij plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery ground, hothouse, greenhouse or conservatory, shall, on conviction thereof before a justice of the peace, at the dis- cretion of the justice, cither be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and lupt to hard labour, for any term not cj'cccding sij- months, or else shall forfeit and pay, over and above the amount of the injury done, such s^uiii of money, not exceeding 201., as to the justice shall seem meet; and whosoccer, having been convicted of any such offeoicc, cither against this or any former act of parliament, shall afterwards commit any of the said offences in this section before mentioned, shall be guilty of felony. (^Prerious enactment, 7 & S Geo. 4, c. 30, s. 21.) Elsewhere.] — By s. 24, whosoever shall -unlawfully and maliciously destroy, or damage with intent to destroy, any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land, open or inclosed, not being agarden, orchard or nursery ground, shall, on conviction thereof before a justice of the peace, at the dis- cretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoni'd and kept to hard labour, for any term- not exceeding one month, or else shall forfeit a-nd pay, over and above the amount of the injury done, such sum of money not exceeding 20s., as to the justice .shall seem meet, and in default of payment tltereof, together with the costs, if ordered, shall be com/initted as aforesaid for any term not ex- ceeding one month, unle«s payment be sooner made. (^Previous enactment, 7 & 8 Geo. 4, c. 30, s. 22.) By s. 58, malice against the oumers of the ^property injured is nnneecssary. Fences.]— By 24 & 25 Vict. c. 97, s. 25, whoso- ever shallunlaafullg and maliciously cut, breah, throw down or in anywise destroy any fence of any description whatsoever, or any wall, stile or gate, or any part thereof respectively, shall, on conviction thereof before a justice of the peace, for the first offence, forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding 51., as to the justice shall seem meet. (^Former provision, 7 & 8 Geo. 4, c. 30, s. 23.) 9. Hop-binds. Statute.]— By 24 & 25 Vict. c. 97, s. 19, who- soever shall unlawfully and maliciously cut or otherwise destroy any hop-binds growing on poles in any plantation of hops shall be guilty of 416 felony. ^Former provision, 7 & 8 Geo. 4, c. 30, s. 18.) Death of Plant.] — In order to support an in- dictment under 7 & 8 Geo. 4, c. 30, o. 18, for destroying hop-binds, it must be shewn that the plant died in consequence of the injury received. Proof of the infliction of injury by cutting, bruising, &c., is insufficient. Meg. \ Boucher, 5 Jul-. 709. 10. WOEKS OP Aet. Statute.]— By 24 & 25 Vict. c. 97, s. 39, who- soever shall unlawfully and maliciously destroy or damage any booh, manuseri^it, picture, print, statue, bust or vase, or any other article or thing kept for the purposes of art, science or literature, or as an object of curiosity, in any museum, gallery, cabinet, library or other repository, which museu/m, gallery, cabinet, library or other repository is either at all times or from time to time open for the admission of the public, or oj any considerable number of persons, to view the same, cither by the permission of the proprietor thereof or by the payment of money before enter- ing the same, or any picture, statue, monument or other memorial of the dead, painted glass or other ornament or work of art, in any church, ekapel, meeting-house or other place of divine worship, or in any buildiiig belonging to the Queen, or to any county, riding, division, city, borough, poor-law union, parish or jjlace, or to any university, or college or hall of any univer- sity, or to any inn of court, or in any street, square, church-yard, burial-ground, ^Jublic gar- den or ground, or a7iy statue or monument ex- posed to public view, or any ornament, railing or fence surrounding such statue or monument, shall be guilty of a misdemeanor. {Previous enactments, 8 & 9 Vict. c. 44, ss. 1, 4, and 17 & 18 Vict. 0. 33, s. 6.) 11. Killing oe Maiming Cattle oe oihbe Animals. Statute.]— By 24 & 25 Vict. c. 97, s. 40, whoso- ever shall unlawfully and maliciously kill, maim or wound any cattle shall be guilty of felony. (^Former provision, 7 & 8 Geo. 4, o. 30, s. 16.) By s. 41, whosoever shall unlawfully and ma- liciously hill, maim or wound any dog, bird, beast or other animal, not being cattle, but being either the subject of larceny at common law, or being ordinarily kept in a state of conjiTiement , or for any domestic pu rpose, shall, on conviction thereof before a justice of the peace, at the dis- cretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding six months, or else shall forfeit and pay, over and above the amount of injury done, such sum if money, not exceeding 201., as to the justice shall seem meet ; and whosoever, having been eonvtcted of any such offence, shall afterwards eomncit any of the said offences in this section before mentioned, and shall be couricted thereof in like manner, shall be committed to the common gaol or house of correction, there to be kept to hard labour for such term not exceeding twelvemonths, as the convicting justice shall think fit. {Former provision, 7 kSGeo.i, 0.30,5.17.) By s. 58, malice against the owner of the cattle Digitized by Microsoft® 417 CEIMINAL LAW — Malicious Injury to Property. 418 0?' othe7' animal sheum. ■ed is unnecessary to he the property in them may be laid to be in the agister. Rex y. Woodwa/i-d, 2 East, P. C. 653. Cattle — What are.J — Horses, mares and oolts were included in the word " cattle " in 9 Geo. 1, c. 22. Bei- Y. Patty,, 2 East, P. C. 1074 ; 1 Leach, C. C. 72 ; 2 W. Bl. 721 ; >S. P., Rex v. Moyle, 2 East, P. C. 1076. So were geldings. Rex v. 3Iott, 2 East, P. C. 1075 ; 1 Leach, C. C. 73, n. So were pigs. Rex v. Chajjple, E. & R. C. C. 77. And asses. Rex v. Wliitney, 1 M. C. C. 3. Maiming or Wounding — What is.] — Wound- ing a horse out of malice to the owner, by driv- ing a nail into the frog of his hoof, was within 9 Geo. 1, c. 22, though the injury was only tem- porary. Rex T. Haywood, 2 East, P. C. 1076 ; B. & E. C. C. 16. Pouring acid into the eye of a mare, and thereby blinding her, was a maiming. Rex v. Oivcns, 1 M. C. C. 205. Injuring a sheep by setting a dog at it was not such a maiming or wounding as was within i Geo. i, c. 54, s. 2. Rex t. Hughes, 2 C. & P. 420. But see Elmsley's case, 1 Lewin, C. C. 126. If A. set fire to a cow-house and burnt to death a cow which was in it, A. was indictable under 7 & 8 Geo. 4, c. 30, s. 16, for killing the cow. Rex V. HaugUon, 5 G. & P. 559. In order to constitute a maiming of a horse within 7 & 8 Geo. 4, o. 30, s. 16, it was essential that a permanent injury should have been in- flicted on the animal. Reg. v. Jeans, 1 0. & K. 539. Destroying — Foisoning Dogs.] — The placing of poisoned flesh in an inclosed garden, for the purpose of destroying a dog'^which was in the habit of straying there, is not an offence punish- able under 24 & 25 Vict. o. 97, s. 41. Daniel v. Janes, 2 C. P. D. 351. Semble, that it is within 27 & 28 Vict. c. 115, s. 2. IV. Maliciously— What is.]— If a man causes the death of a mare from internal injuries, not in- tending by his act to kill, maim or wound her, but knowing that the act would or might kill, maim or wound her, and acting recklessly and not caring whether she Was injured or not, though without any ill-will or spite either towards the owner of the animal or the animal itself, and without any motive except the gratification of his own depraved tastes, he is guilty of mali- ciously killing the mare contrary to 24 & 25 Vict. c. 97, s. 40. Beg. v. Welch, 1 Q. B. D. 23 ; 45 L. J., M. C. 17 ; 33 L. T. 753 ; 24 W. R. 280 ; 13 Cox, C. 0. 121. Proof of Malice Unnecessary.] — On an indictment on 7 Will. 4 & 1 Vict. c. 90, b. 2, for maliciously wounding cattle, it was not neoessaiy to prove that the prisoner was actuated by malice against the owner of the cattle. Req. v. Tivev 1 C. & K. 704 ; I Den. C. 0. 63. A conviction under 7 & 8 Geo. 4, c. 30, s. 16, of unlawfully, maliciously and feloniously wound- ing a mare, held right. Ih. Indictment- Property in Agister.] — On an indictment for maliciously killing two sheep. Kind of Cattle.] — An indictment on 9 Geo. 1, c. 22, must have stated the species and sex of cattle wounded or injured ; to state that the prisoner maimed certain cattle was not sufficient. Rex v. Chalkley, R. & E. C. C. 258. Sie now 24 & 25 Viet. c. 97, s. 60. Evidence.] — If a prisoner mixed poison with the corn intended for the feed of eight horses, and then gave each horse his feed from this mix- ture, an indictment, charging that he did ad- minister the poison to the eight horses, is correct. Rex v. Mogg, 4 C. & P. 363. Other Cases to shew Intent.] — On an in- dictment for administering sulphuric acid to eight horses, with intent to kill them, the prose- cutor may give evidence of administering, at different times, to shew the intent. Ih. To Improve Appearance.] — But i£ the jury is satisfied that the offender administered the poison under an idea that it would improve the appearance of the horses, he ought to be acquitted. Ih. Not Necessary to Prove that any Instru- ment used.] — Upon an indictment under 24 & 25 Vict. c. 97, a. 40, for maliciously wounding a horse, it is not necessary to prove that any in- strument was used to inflict the wound. Reg. V. Bwlloch, 1 L. R., C. C. 115 ; 37 L. J., M. C. 47 ; 17 L. T. 516 ; 16 W.-E. 405 ; 11 Cox, C. C. 125. 12. Real ok Personal Pkopeety to Amount op U., &c. Statute.]— By 24 & 25 Vict. o. 97, s. 51, whoso- ever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a puhlio or private nature, for which no punisli- ment is hercinieforc provided, the damage, in- .jury, or spoil heing to an amount exceeding five pounds, shall he guilty of a misdemeanor, and being convicted thereof shall he liable, at the discretion of the court, to be imprisoned for any term not exceeding tioo years, with or without hard labour ; a7id in case any such offence shall he committed between the hours of ni7ie of the clock in the evening and six of the clock in the Tiext morning, shall be liable, at the discretion of the court, to be kept in xyeiial servitude for five years, or to be impriso7ied for any term not exceeding two yeai-s, with or without ha/rd labour. Maliciously— What is.]— The word "mali- ciously" in 24 & 25 Vict. c. 97, s. 51, requires that an act to be criminal within that section should be done wilfully. Reg. v. Pembliton, 2 L. R., C. C. 119 ; 43 L. J., M. C. 91 ; 30 L. T. 405 ; 22 W. E. 553 ; 12 Cox, C. C. 607. A conviction under that section, for unlaw- fully and maliciously committing damage above the value of 5Z. to a house, where the person, after fighting in a crowd in the street near the window of the house, separated himself from the crowd, picked up a stone, threw it at one of the persons with whom he had been fighting, Digitized by Microsoft® 419 CRIMINAL JuAW— Misdemeanors. 420 missed his aim, and hit a plate-glass window above the value of 51. in the house, but did not intend to break the window, was quashed. lb. Not applying to Incorporeal Hereditament as Herbage Bight.] — The soil of a town moor was vested in the corporation of the town in fee, but freemen and widows of deceased free- men of the town were under statute entitled to the " full right and benefit to the herbage " of the town moor for two milch cows : — Held, that this right to the herbage was not " any real or personal property whatsoever" within the mean- ing of the Malicious Injuries to Property Act (24 & 25 Vict. c. 97), s. 52, which applies only to tangible property and not to a mere incorporeal right. Laws v. Eltrlngham, 8 Q. B. D. 283 ; 15 Cox, C. G. 22 ; 51 L. J., M. C. 13 ; 46 L. T. 64 : 30 W. E. 245 ; 46 J. P. 230. - Damage to Field by Dog.] — Damage done to a field by a poacher's dog in pursuit of game, was not a malicious injm-y within 7 & 8 Geo. 4,. c. 30, s. 23. Meg. v. Prestncij, 3 Cox, C. C. 505. Beinstating Works after Notice.] — By the side of the highway and under the entrance to T.'s premises ran a drain. T. substituted for it a culvert, and by so doing raised the entrance and the part of the highway adjoining it. The sur- veyor of the highways served T. with a notice to reinstate, alleging that the culvert caused a nuisance to the highway. On his failing to reinstate the highway the surveyor himself re- moved the culvert, and in doing so broke some of the tiles : — Held, that an information against the surveyor under 24 & 25 Vict. c. 97, s. 52, for malicious injury to property, ought to be dis- missed. Benny v. Thwaltes, 2 Ex. D. 21 ; 46 L. J., M. C. 141 ; 35 L. T. 628. Indictment, Contents of.] — In an indictment under 24 & 25 Vict, c 97, s. 51, for maliciously damaging personal property, the damage exceed- ing 5Z., it is not necessary to allege the value of each article injured, but only that the amount of the damage done to the several articles exceeded 51. aggregately. Ileg. v. Thomas, 12 Cox, C. C. 54 ; 24 L. T. 398. 13. Indictment. Malice Immaterial.]— By 24 & 25 Vict. c. 97, s. 58, every punishment and forfeiture imposed hj the act on any person malieionsly eommitting any offence, whether the same be 2>unishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice con- ceived against the owner of the property in respect of which it shall be committed or other- wise. Intent to Injure another.]— By s. 59, every prn-ision of this act not hereinbefore so applied shall apply to every person who, with intent to injure or defraud any other person, shall do any of the acts hereinbefore made penal, although the offender shall be in possession of thr pro- perty against or in respict of which such act shall be done. . By s. 60, it shall be sufficient, in any indict- ment for any offence against this act, where it shall be necessary to allege an intent to injure or Digitized by Microsoft® defraud, to allege that tie party accused dU the act with intent to injure or defraud, as the. ease may be, without alleging an intent to injure or defo'aud any particular person; and on the trial of any such offence it shall nut be necessary to prove an, intent to injure or defraud any par- ticular person, but it shall be sufficient to prove that the party accused did the act charged icith an intent to injure or defraud, as the case may be, XXV. MISDEMEANORS. 1. Where Ecidence prores a Felony. 2. At Common Law. 3. Practice, 423. 4. Attempts to Commit. — See ante, Attempts TO Commit Offences. 1. Wheeb Evidence peoves a Felony. Statute.]— By 14 & 15 Vict. o. 100, s. 12, if, upon the trial of any person for any misde- meanor, it shall appear that the facts given in evidence amount, in law, to a felony, such person shall not by reason thereof be entitled to be ac- quitted of such m i.9dem.eanor, and no person tried fur such misdemeanor shall be liable to be after- wards prusecuted for felony on the same facts, unless the court, before which such trial may be had, shall thinJtJit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor. Felony partly Proved.] — Upon an indictment for a misdemeanor, it is no ground for an ac- quittal that the evidence necessary to prove the misdemeanor also shews it is part of a felony, and that the felony has been completed. Reg. V. Button, 3 Cox, C. C. 229. 2. At Common Law. Overseer Bemoving Pauper pending Special Case.] — It is not indictable if an overseer, with- out fraud or menace, remove a pauper under an order, after it has been confirmed, on appeal, by the sessions, subject to the opinion of the Queen's Bench and before its final determination by that court. Beg. v. Cooper, 3 New Sess. Cas. 346 ; 18 L. J., M. C. 16. Exposing Dead Body in Public Highway.]— The prisoner was indicted for unlawfully ex- posing the dead body of her infant child near a public highway. The jury found that the body was exposed by the prisoner in a public highway ; that the place was one where many people were certain to pass and repass ; and that the ex- posure was calculated to shock and disgust passers-by and outrage public decency :— Held, that the prisoner was guilty of a nuisance at common law. Meg. v. Clarh, 15 Cox, 171. C. C. Not providing for Burial of Child.]— A parent, who has not the means of providing burial f ra- the body of his deceased child, is not hable to be indicted for a misdemeanor in not providing for its burial, even though a nuisance is occa- sioned by allowing the body to remain unburied, 421 CEIMINAL liA-W^Misdemeanors. 422 and although the poor-law authorities of the union have offered him money to defray the ex- penses of burial, by way of loan, as he is not bound under such circumstances to contract a debt. Beg. v. Vann, 2 Den. C. C. 325 ; T. & M. C32 ; 21 L. J., M. C. 39 ; 15 Jur. 1090. Disinterring and Bemoving Human Bemains from Unconsecrated Burial Ground.] — The de- fendant was indicted for unlawfully, wilfully, and indecently digging open graves in a burial- ground, and taking and removing parts of the bodies of persons buried therein, and interfering with and offering indignities to the remains of the said bodies. The evidence shewed that the defendant employed persons to excavate for building operations the burial-ground attached to a Nonconformist place of worship, which had been disused as a burial-ground for some time ; and the jury found that, in the course of the ex- cavations, bones that formed parts of human remains, and of the same human skeletoH, were dug up, but that they were not disturbed in an improper and indecent manner : — Held, that the defendant was guilty of a misdemeanor at common law. Reg. v. Jacohson, 14 Cox, C. C. 522. See also XXXIX., Sbpultueb, ivfra. Attempt to have Carnal Knowledge.] — At- tempting to carnally know and abuse a girl be- tween the ageS of ten and twelve, if she con- sented to all that was done, was a misdemeanor. lleg. V. Martin, 9 C. & P. 213 ; 2 M. C. C. 123 ; 8. P., Reg. v. Johnson. L. & C. 632 ; 10 Cox, C. C. 114. To have Connexion by Palse Pretences.] — A conspiracy to procure by false pretences, false representations, and other fi-audulent means a young girl to have illicit carnal connexion with a man, is a misdemeanor at common law. Reg. V. Mears, T. & M. 414 ; 2 Den. C. C. 79 ; 20 L. .1., M. C. 59 ; 15 Jur. 66. See 24 & 25 Vict. c. 95. Procuring Indecent Prints with Intent to Publish.] — It is a misdemeanor to procure in- decent prints with intent to publish them. Bug- dale V. Reg. Qin error'), 1 El. & Bl. 425 ; Dears. C. C. 64 ; 22 L. J., M. C. 50 ; 17 Jur. 546. But to preserve and keep them in possession with such intent is not. II). Therefore, where some counts charged that the defendant obtained and procured indecent prints, in order and for the purpose of unlawfully pub- lishing and selling them, and thereby corrupting the public morals, and other counts charged that the defendant unlawfully and knowingly pre- served and kept in his possession indecent prints, with the same intent ; — Held, that the former counts were good, inasmuch as they charged an act done towards the commission of a misde- meanor ; but that the latter counts were bad inasmuch as they did not charge such an act! 11. Indecent Exhibition.]— An obscene exhibition in a booth on a racecourse with closed doors, to a number of spectators who have' paid for their admission upon the invitation of the keepers of the booth to the general public, is a misdemeanor at common law. Reg. v. Saunders, 1 Q B D 15 ; 45 L. J., M. C. 11 ; 33 L. T. 677 ; 24 W R 348 ; 13 Cox, C. C. 116. " " Uttering Forged Character.] — Uttering a false testimonial to character, knowing it to be forged, with mtent to deceive, and thereby obtaining a situation of emolument, is a misdemeanor at common law.. Reg. v. Sliarman, Dears. 0. C. 285 ; 23 L. J., M. C. 51 ; 18 Jur. 157. Administering Noxious Thing.] — ^Administer- ing cantharides to a woman, with intent to injure her health, was not a misdemeanor at common law. Reg. v. Hanson, 4 Cox, C. C. 138 ; 2 C. & K. 912. Inciting to Commit Unnatural Offence.] — ^A count in an indictment charged that the prisoner unlawfully, wickedly, and indecently did write and send to H. a letter, with intent thereby to move and incite H. to attempt and endeavour, feloniously and wickedly, to commit an un- natural offence, and by the means aforesaid did unlawfully attempt and endeavour to incite H. to attempt to commit the crime aforesaid : — Held, that the count charged an indictable mis- demeanor. Reg. V. Ransford, 31 L. T. 488. The evidence was, that H. was a boy at school, and that he had received two other letters from the prisoner, which he read, but that when he received the one mentioned in the above count he did not read it, nor was he in any way aware of its contents, but handed it over to the school authorities : — Held, that the sending the letter proved the attempt to incite, although it might be doubtful whether it could be said to amount to inciting or soliciting, inasmuch as H. was not aware of its contents. Ih. Act of Fraud on Public Officer.] — Any one act of fraud upon a public officer, with intent to de- ceive, whereby a matter required by law for the accomplishment of an act of a public nature is illegally obtained, amounts to an indictable mis- demeanor ; and it need not be alleged or proved either that the act was in fact accomplished, or that the party, at the time of committing the fraud, intended that it should be. Reg. v. Chapman, 2 C. & K. 846 ; 1 Den. C. C. 432 ; T. & M. 90 ; 18 L. J., M. C. 152 ; 13 Jur. 885. A false oath taken before a surrogate, with intent to deceive such surrogate, and to obtain from him a licence for a marriage, is punishable as a misdemeanor, although it is not alleged in the indictment, nor proved in evidence, that the marriage was in fact celebrated, and although the party found guilty was not the person about to be married, lb. False Oath.] — H. was indicted for perjury in an affidavit under the Bills of Sale Act, 1854, for the purpose of getting a bill of sale filed. The affidavit was sworn before a commissioner for taking affidavits in the Court of Queen's Bench : — Held, that this did not constitute perjury, but that he was guilty of taking a false oath, which offence was, under the circumstances, a common- law misdemeanor. Reg. v. Hodqhiss, 1 L. E., C. C. 212 ; 39 L. J., M. C. 14 : 21 L. T. 564 ; 18 W. E. 150. Suicides and Maiming.]— See infra. Orders made under Statutory Powers, Disobey- ing.]— By the Eppiug Forest Amendment Act, 1872 (35 & 36 Vict. c. 95), s. 5, the commissioners were authorized to make orders prohibiting, Digitized by Microsoft® 423 CRIMINAL TuAW— Murder, Assaults, dc. 424 until the expiration of the session of parliament next after their final report, any inclosures of land made before the Act of 1871, and for the prevention of any waste, injury or destruction of vert, herbage, trees, &c., in or upon any land within the forest subject in their judgment to any forestal or common rights. The commis- sioners made an order, that until the expiration of the session of parliament next after their final report, " all persons be and are hereby pro- hibited from committing any waste, &c., in or upon the waste lands in the forest within the manor of Theydon Bois (including inclosures of waste lands made within twenty years next pre- ceding the 21st of August, 1871), all which lands are distinguished on a plan annexed, by the colour green." The defendant was the occupier, as tenant, of a piece of land, part of the above waste lands, which was inclosed some time since 1851, and was part of the land coloured green on the plan, and persons claimed right of pasturage over all the waste lands. The order was served upon him, and he afterwards committed waste by digging marl and clay, upon which an in- dictment was preferred against him for disobey- ing the order. A verdict of guilty having been entered : — Held, that the order was good, and that disobedience to it was a misdemeanor at common law. Seg. v. Walker, 10 L. E., Q. B. 355 ; 44 L. J., M. C. 167 ; 33 L. T. 167. 3. Practice. Power of Queen's Bench, to enter Verdict for Defendant.] — "Where a misdemeanor is tried in the Queen's Bench Division, and a verdict of guilty has been found, the court has power on motion to enter a verdict for the defendant. Reg. V. Platts, 28 ^X. E. 915. XXVI. MURDEE, MANSLAUGHTEE, AND OFFENCES AGAINST THE PER- SON. A. Mxirder and Manslaughter. B. Assaiilt, Battery, "Wounding, &o. C. Abortion, Attempts to Procure. D. Bape, and Assaults on ■Women and Children. A. MURDER AND MANSLAUGHTER. 1. Statnte, 424. 2. Unlawful Killiiiq, 424. 3. ReasonaHc Crrature in Being, 430. 4. Malice, Expirss or Imjilied. a. Generally, 431. b. By Poison or Operations, 431. c. By Fighting, 433. d. Upon Provocation, 435. e. By Correction, 437. /. In Defence of Property, 438. g. Killing without Intention whilst doing another Act. ;. Blow Intended for Another, 438. ii. Negligence by Omission or Com- mission, 439. h. KiUing Officers of Justice, 446. ■?. KiJling by Officers of Justice, 449. j. Killing in Self-Defence, 450. 5. Indietment, 450. Digitized by Microsoft® 6. Evidence. a. Generally, 455. h. What Admissible, 458. c. Dying Declarations, 461. 7. Trial, Sentence, and Funisliment, 467. 8. Conspiring or Soliciting to Commit Murder. 472. 9. Attempts to Murder. a. By Administering Poison, 474. h. By Shooting, Wounding, Drowning, Suffocating, or Strangling, 475. c. By the Explosion of Gunpowder, &c., 478. d. By Setting Fire to or Casting Away Ships, 479. e. Preventing Kesoue from Shipwreck, 479. /. By other Means, 479. 1. Statute. By 24 & 25 Viot. c. 100, s. 1, whosoever shall ie convicted of murder, shall suffer death as a felon. By s. 8, every offence tuhicJi, before the com- meneement of 9 Geo. 4, c. 31, would have amounted to petit treason, shall ie deemed to l>e ■murder only, and no greater offence ; and all persons guilty in respect thereof, whether as principals or as aeeessories, shall he dealt with, indicted, tried and pjmished as 2>rincipals and accessories in murder. By 24 & 25 Vict. c. 100, s. 7, no punishment or forfeiture shall he incurred hy any person who shall hill another by misfortune, or in his own defence, or in any oilier manner without felony. 2. Unlawful Killing. Killing — What is.]— A husband seized his wife, a heavy, corpulent woman, and dashed her violently on the brick floor of a kitchen, and then struck her with the tongs on her thigh, inflicting a severe bruise, but no injury in itself fatal. She languished ten days, during which she, at his desire, and in effect driven away by him, sought shelter at a friend's, where, at the end of that time, she died ; he providing no medical aid, and no doctor visiting her until the day before her death, when it was too late. The medical evidence shewed that she was diseased, but that she might have lived for an indefinite period ; and that the effect of the whole of the violence was to hasten her death, by a shock to the nercous system calculated to aggravate the disease :— Held, that if this was so he was guilty of manslaughter. Meg. v. Murton, 3 P. & F. 492. Injury causing Medical Treatment Neces- sary—Death resulting during an Operation ]— When an injury was inflicted on a person by a blow which, in the judgment of a competent medical man, rendered an operation advisable, and, as a preliminary to the operation, chloro- foni was administered to the patient, who died during its administration, and it was agreed that the patient would not have died but for its administration :-Held, that the Pf ^°" f ^f the injury was liable to ^e mdictedfoi man- slaughter. Jleg. V. Davts, 15 Cox, 0. 0. 174. Refusal to submit to Operation.]-Where 425 CRIMINAL 'LAW— Murder, Assaults, dc. 426 a wound is wilfully, and without justifiable cause, inflicted, and ultimately becomes the cause of death, the party who inflicted it is guilty of murder, though life might have been preserved if the deceased had not refused to submit to a surgical operation. Heg. v. Holland, 2 M. & Rob. 351. Death caused by Fright.]— When A., in unlawfully assaulting 15., who at that time had in her arms an infant, so frightened the infant that it had convulsions, although previously healthy, and from the effects of which it even- tually died in about six weeks. A. is guilty of manslaughter, if the jury thinks that the assault on B. was the direct cause of death. Beg. v. Towers, 12 Cox, C. C. 530. Death caused by Apprehension of Violence.] — If a person being attacked should, from an ap- prehension of immediate violence — an apprehen- sion which must be well grounded and justified by the circumstances — throw himself for escape into a river, and be drowned, the person attack- ing him is guilty of murder. Meg. v. PltU, Car. & M. 284. Forcing a person to do an act which is likely to produce his death, and which does- produce it, is murder. Bex v. Ecans, 1 Buss. C. & M. 676. And threats may constitute such force. IT), Falsely charging Person with Capital Offence.] — A person cannot be indicted for mur- der in procuring another to be executed by falsely charging him with a crime of which he was innocent. Bex v. Maedaniel, 1 Leach, C. C. 44 ; 1 East, P. 0. 333. Unlawful Acts — What are.] — Accidental homi- cide may be murder, if it happens in the prose- cution of any illegal act ; as in carrying away furniture to avoid a distress for rent. Beat v. Hodgson, 1 Leach, C. C. 6 ; S. C, nom. Bex v. Huison, 1 Bast, P. C. 258. Not Providing Medical Aid.]— By 31 & 32 Vict. c. 122, s. 37, when any parent shall wilfully neglect to provide medical aid for his child, being in his custody and under the age of fourteen years, whereby the health of such child shall be seriously injured, he is guilty of an offence punishable summarily before justices. Since that statute, if from a conscientious reli- gious conviction that in answer to prayer God would iheal the sick, and in obedience to the tenets of a sect called the Peculiar People, and not from any intention to avoid the performance of his duty to his child or to break the law, the parent of a sick child, being one of such sect, / while furnishing it with all necessary food and nourishment, refuses to call in medical aid, though well able to do so, and the child, in the opinion of the jury, dies from not having sueh medical aid, it is manslaughter. Beg. v. Deicnes, 1 Q. B. D. 8 ; 45 L. J., M. C. 8 ; 33 L. T. 675 ; 24 W. E. 278 ; 13 Cox, C. C. 111. Caused by Unlawful Assembly.] — If persons assemble to obstruct the officers of the law, all so assembling are guilty of an unlawful assembly, whether a riot takes place or not, and if a homicide be committed in consequence of that unlawful assembly, every one taking part in the unlawful assembly may be personally re- sponsible for the homicide. Beg. v. MeNangliten, 14 Cox, C. C. 576. Whilst Playing at Football.] — If, while engaged in «. friendly game, one of the players commits an unlawful act whereby death is caused to another, he is guilty of manslaughter. In such a case it is immaterial to consider whether the act which caused the death was in accordance with the rules and practice of the game. The act would be unlawful if the person committing it intended to produce serious injury to another, or if, committing an act which he knows may produce serious injury, he is indif- ferent and reckless as to the consequences. Beg. V. Bradshaw, 14 Cox, C. C. 83. Playing.] — A drunken man went into a shop, and in a joke seized a boy round the neck, and began spinning him round until they got together into the street. The boy having at length broken away, the prisoner, in consequence, staggered into the road, and fell against a woman who was passing, knocking her down ; she shortly after died of the injuries which she had received. The boy made no resistance to the prisoner's treatment of him, believing that it was merely done in play : — Held, that there was no evidence of manslaughter. Beg. v. Bruce, 2 Cox, C. C. 262. ■ Kicking out Trespasser.] — ^A kick is not a justifiable mode of turning a man out of your house, though he is a trespasser ; therefore,- if it causes death, it is manslaughter. Wild's case, 2 Lewin, C. C. 214. Command to kill Person.] — He who kills another upon his desire or command, is, in the judgment of the law, as much a murderer as if he had done it merely of his own head. Bex v. Sawyer, 1 Russ. C. & M. 670. By Firing Buildings or Stacks.] — ^Where a person indicted for murder had wilfully set fire to a stack of straw, close to an out-house or a barn, in an inclosure not adjoining to a dwelling- house, and the deceased was burnt to death, either in the out-house or on or by the side of the stack : — Held, that he was not guilty of murder, unless the deceased was there when he set fire to the stack. Beg. v. Horsey, 3 F. & F. 287. Causing Death by Excessive Drink.] — An indictment stated that the prisoners gave, ad- ministered and delivered to A. large and excessive quantities of spirits and water, wine and porter, and induced, procured and persuaded him to drink them, being likely to cause death, which they well knew. The deceased was a man in possession under the sheriff, and one of the pri- soners, of whose goods he was in possession, assisted by his brother and a friend, plied the man with liquor, themselves drinking freely also, and when he was very drunk put him into a cabriolet, and caused him to be driven about the streets ; and about two hours after he had been put into the cabriolet he, was found dead : — Held, that, if it was essential to prove that the prisoners knew that the liquors were likely to cause death, the case would be one of murder and not of manslaughter, but that such allega- Digitized by Microsoft® 427 CRIMINAL IjAW— Murder, Assaults, dec. tion was not a material part of the indictment, but might be dismissed from the jury's considera- tion. Beg. V. PaeUard, Oar. & M. 236. Held, also, that if the prisoners, when the de- ceased was drank, put him into a cabriolet and drove him about in order to keep him out of possession, and by so doing accelerated his death, it would be manslaughter. JJ. Killing hy Persons having Charge of Helpless Beings.] — A grown-up person who chooses to undertake the charge of a human creature help- less either from infancy, simplicity, lunacy or other infirmity, is bound to execute that charge without wicked negligence ; and if such person by wicked negligence lets the helpless creature die, that person is guiltvof manslaughter. Reg. V. Nicliolls, 13 Cox, C. C. 75. Mere negligence is not enough ; there must be negligence so great as to satisfy a jury that the person had a wicked mind, in the sense of being reckless and careless whether death occurred or not. lb. Where a man and his wife are living apart by mutual consent, he granting her a fixed allowance, which is regularly paid, he is not primS, facie bound to supply her with shelter ; but if he is made acquainted with the fact that she is without shelter, and refuses to provide her with it, in consequence of which her death ensues, semble, that he is guilty of manslaughter. Reg. v. Plvmnwr, 1 C. & K. 600 ; 8 Jur. 921. On the trial of an indictment against a woman for the manslaughter of her new-born child, the evidence went to prove that the child had dropped from her whilst she was on the privy, and that it had been smothered in the soil : — Held, that if the jury was' of opinion that after it had been born the mother had the power of procuring such assistance as might have saved the child's life, and she neglected to procure it, she was guilty of manslaughter. Reg. v. Middlcship, 5 Cox, C. C. 275. On an indictment against a woman for the mlf ul murder of her new-born child, she is guilty of murder if either before or after the birth of the chUd she makes up her mind that it shall die, and the child being bom alive, she, with the intent that it shall die, leaves it to die, and it does die in consequence. Or again, she is guilty of murder, if without intending murder she re- solves to conceal the birth of the child by methods which will probably end in its death, and which being carried out do end in its death. Reg. v. Handley, 13 Cox, C. C. 79. She is guilty of manslaughter if, without having made up her mind that the child shall die, she determines to be alone at the birth, for the purpose of temporary concealment, and the child afterwards dies by reason of her wicked negligence. li. A father is not justified in correcting an mfant of two years of age, and if he does so and the infant dies therefrom, he is guilty of man- slaughter. Reg. V. Griffin, 11 Cox, C. C. 402. It is a misdemeanor to refuse or neglect to provide sufficient food or other necessaries for any infant of tender years, unable to provide for and take care of itself (whether such infant is a child, an apprentice, or a servant whom the party is obliged by duty or contract to provide for), so as thereby to injure his health. Rex v. Friend, E. & E. C. 0. 20. And see Rex v. Sguire, 1 Euss. C. & M. 80, 678. Digitized by Microsoft® 428 A single woman, the mother of an infant child, was indicted for neglecting to provide it with sufficient food, the indictment alleging that she was able, and had the means so to do. There was no evidence of the actual possession of means by the mother ; but it was proved that she could have applied to the relieving ofBcer of the union, and that if she had so applied, she would have been entitled to and would have received relief adequate to the due support and maintenance of herself and child : — Held, that the allegation in the indictment was not supported by this evi- dence. Reg. V. Chandler, Dears. C. C. 453 ; 3 C. L. E. 680 ; 24 L. J., M. C. 109 ; 1 Jur., N. S. 429. If parents have not the means of providing proper food and nourishment for their infant children who are incapable of taking care of themselves, it is their duty to apply for the assistance provided by means of the poor laws. Jleg. V. Mabbett, 5 Cox, C. C. 339. A married woman who, having a child under such circumstances, wilfully neglects for several days going to the union for the purpose of getting support for it, she knowing that such neglect is likely to cause the child's death, is guilty of manslaughter. I h. Where any person undertaking the duty of sup- plying an infant with proper food and clothing, and furnished with the means of discharging that duty properly, wilfully neglects to do so, with an intention to cause the death of the child, or to do it some grievous injury, and the child dies in con- sequence of such neglect, such person is guilty of murder. Where the neglect is culpable only, and, not malicious, such person is guilty of man- slaughter. Where a parent supplies sufficient food and clothing to another for the purpose of administering to his child, and that other person wilfully withholds it from the child, and the parent is conscious that it is so withheld, and does not interfere, and the child dies for want of proper food and clothing, the parent is guilty of manslaughter. Reg. v. Buib, 4 Cox, G. C. 455. A married woman cannot be convicted of the murder of her illegitimate child three years old, by omitting to supply it with proper food, unless it is shewn that her husband supplied her with food to give to the child, and that she wilfully neglected to give it. Rex v. Saunders, 7 C. & P. 277. ^ ^ A count charged a married woman with the murder of her illegitimate child of three years old, by omitting to supply it with sufficient food, and also by beating ; it was not shewn that her husband had supplied her with food to give to the child :— Held, that this count could not be supported. lb. An indictment alleged in a first count that the prisoner unlawfully and wilfully neglected and refused to provide sufficient food for her infant child, she being able and having the means to do so The second count charged that she unlawfully and wilfully neglected and refused to provide -ter infant child with necessary food, hut there was no allegation that she had the ability or means to do so The iury found a verdict of guilty, on tlie ground that if she had applied (to the guardians) for relief she would have had it:— Held, that neither count was proved, as it was not enough that she could have obtained the food on apphca- tion to the guardians. Reg. v. Uugg, C. 16 ; 24 L. T. 192. An indictment against a woman 12 Cox, C. for man- 429 CRIMINAL 'LKyR— Murder, Assaults, dtc. 430 slaughter, in neglecting to supply an infant of tender age with sufficient food, is had, if it does not state a duty to supply the child with food ; hut, if the indictment charges that the person not supplied with food was imprisoned by the party accused, that sufficiently shews the duty to supply food. Beg. v. Edwards, 8 C. & P. 611. A. was convicted of the manslaughter of an infant female child, on an indictment which stated the death to have been caused by exposure, whereby the child became mortally chilled, frozen, and benumbed : — Held, that as the death was attributable to an act of misfeasance, it was necessarily implied that the child was of such tender age and feebleness as to be incompetent to take care of herself. Reg. v. Waters, T. & M. 57 ; 1 Den. C. C. 356 ; 2 C. & K. 864 ; 18 L. J., M. C. 53 ; 13 Jur. 130. Who Liable for — Inspector or Foreman.] — Where a f atefr railway accident had been caused by the train running off the line, at a spot where rails had been taken up, without allowing suffi- cient time to replace them, and also without giving sufficient, or, at all events, effective warn- ing to the engine-driver ; and it was the duty of the foreman of plate-layers to direct when the work should be done, and also to direct effective signals to be given :■ — Held, that though he was under the general control of an inspector of the district, the inspector was not liable, but that the foreman was, assuming his negligence to have been a material and a substantial cause of the accident, even although there had also been negligence on the part of the engine-driver in not keeping a sufficient look-out. Beg. v. Benge, i P. & F. 504. Engine Set in Motion duringf Absence.] — A party having the charge of a steam-engine, stopped it and went away ; .inother party came and set it in motion, whereby a person was killed : — Held, that the party who went away was not the party by whose negligence the death was caused, and therefore he was not guilty of manslaughter. Hilton's case, 2 Lewin, C. C. 214. Master or Servants.] — B. was a person who made fireworks, contrary to 9 & 10 Will. 3, c. 7. He kept a quantity of " combustibles at his house, for the purpose of his business, as a maker of fireworks ; and during his absence, through the negligence of his servants, a fire broke out amongst such combustibles, and a rocket be- coming thereby ignited flew across a street, setting fire to a house opposite, caused the death of a person therein :— Held, that a conviction of manslaughter was wrong, as the death was not occasioned by the unlawful act of B., but by the negligence of his servants. Beg. v. Bennett, Bell, C. 0.1 ; 8 Cox, C. 0. 74 ; 28 L. J., M C 27: 4 Jur., N. S. 1088; 32 L. T., 0. S 110- 7 W. K. 40. By Soldiers in the Exercise of their Pro- fession.]— A gun discharged in the ordinary and regular course of ball practice by an artillery- man in a garrison town, missed the mark, and killed a man who was lavs^f ully passing near the spot in a boat, the place being a public one, and open to all her Majesty's subjects. The artilleryman who fired the gun was acting under the command of a superior officer, who was acting in obedience to the general orders of the major-general : — Held, that the major-general was not guilty of manslaughter. Beg. v. Hvt- chinson, 9 Cox, C. C. 555. But see 3 Kuss. C. & M. 660. 3. Beasonablb Ceeatueb in Being. Child Born Alive.] — To justify a conviction on an indictment charging a woman with the wilful murder of a child of which she was delivered, and which was born alive, the jury must be satisfied affirmatively that the whole body was brought alive into the world ; and it is not suffi- cient that the child has breathed in the progress of the birth. Bex v. Povlton, 5 C. & P. 329 ; S. P., Be.r V. Enoch, 5 C. & P. 539. A prisoner was charged with the murder of her new-bom child, by cutting off its head : — Held, that in order to justify a conviction for murder, the jury must be satisfied that the entire child was actually bom into the world in a living state ; and that the fact of its having breathed is not a decisive proof that it was born alive, as it may have breathed, and yet died before birth. Bex V. SelUs, 7 C. & P. 850. On a charge of child-murder, it appeared that the child must have died before it had an inde- pendent circulation : — Held, that as the child had never had an independent circulation, the charge of murder could not be sustained. Beq. V. Wright, 9 C. & P. 754. Separation from Mother.] — If a child has been wholly produced from the body of its mother, and she wilfully, and of malice aforethought, strangles it while it is alive and has an inde- pendent circulation, this is murder, although the child is still attached to its mother by the umbilical cord. Beg. v. Trilloe, Car. & M. 650 : 2 M. C. C. 260. A child is born alive when, breathing and living by reason of breathing through its own lungs alone, it exists as a live child without deriving any of its living or power of living by or through any connexion with its mother. Beg. V. Hundley, 13 Cox, C. C. 79. Child en ventre sa Mere.]— An unskilful practitioner of midwifery wounded the head of a child before the child was perfectly born. The child was aftenvards born alive, but subse- quently died of this injury :— Held, manslaughter,, although the child was en ventre sa mere at the- time when the wound was given. Bex v Senior 1 M. C. C. 344 ; 1 Lewin, C C. 183, n. ■"""'■ Child Born Earlier than Natural — less Capable of Living.]-If a person intending to procure abortion does an act which causes a child to be born so "much earlier than the natural tune, that it is born in a state much less capable of living, and afterwards dies in consequence of its exposure to the external world, the peraon. who by this misconduct so brings the child into, the world, and puts it thereby in a situation in. which It cannot live, is guilty of murder, and' the mere existence of a possibility thaf some-, thing might have been done to prevent the death would not render it less murder Bea v West, 2 C. & K. 784 ; 2 Cox, C. 0. 500. ' Before Birth— No Necessary Precautions ]— A woman who knows she is to be confined, and Digitized by Microsoft® 431 CRIMINAI. LAW— MiU-cier, Assaults, d-e. who wilfully abstains from taking the necessary precautions to preserve the life of the child after its birth, in consequence of which the child dies, i« not guilty of manslaughter. Mcfi. v. Knights, 2F. &F..46. 4. Malice,' Bxphess oe Implied. a. Generally. Manslaughter is homicide, not under the in- fluence of malice. i?«^ v. Taylor, 2 Lewin, C. C. 215. If persons cover another with straw and set fire to it, intending to do him a serious injury, and he dies, it is murder, though they did not intend to kill him. But if they intended the act in sport, and merely to frighten him, it is manslaughter. Errington's case, 2 Lewin. C. C. 217. If two persons mutually agree to commit suicide together, and the means employed to produce death only take effect on one, the sur- vivor will, in point of law, be guilty of the murder of the one who died. Reg. v. Alison, 8 C. & P. 418. If a woman takes poison with intent to procure a miscarriage, and dies of it, she is guilty of self-murder, whether she was quick with child or not ; and the person who furnished her with the poison for that purpose, will, if absent when she took it, be an accessory before the fact only. Rex v. Russell, 1 M. C. C. 356. A., at the instigation of a woman who was pregnant by him, and influenced by her threats of self-destruction if the means of procuring abortion were not supplied to her, procured some corrosive sublimate, and handed it to the woman, who took it and died from its effects. He was not present when the poison was taken by the woman. He was indicted for murder. The jui-y negatived the fact of his having administered the poison, or caused it to be taken by the woman, but said that he delivered it to her with the full knowledge of the purpose to which she intended to apply it : — Held, that he was not guilty of murder. Reg. v. Fretwell. 9 Cox, C. C. 152 ; L. & C. 161 : 31 L. J., M. C. 145 ; 8 Jur., N. S. 466 ; 6 L. T. 333 ; 10 W. K. 545. But see now 24 & 25 Vict. c. 100, ss. 58, 59. If two encourage each other to murder them- selves together, and one does so, but the other fails in the attempt upon himself, he is a principal in the murder of the other. Re,e v. Dyson, R. & R. C. C. 523. But if it is uncertain whether the deceased Teally killed himself, or whether he came to his death by accident before the moment when he meant to destroy himself, it will not be murder in either. lb. b. By Poison or Operations. What Skill required.] — A medical man is bound to use proper skill and caution in dealing with a poisonous drag or a dangerous instrument, and if he does not do so, and death ensues, he is guilty of manslaughter ; aliter, if it is want of skill arising from mere error of judgment. Reg. V. Maeleod, 12 Cox, C. C. 534. Any person, whether a licensed medical practi- tioner or not, who deals with the life or health of any of his Majesty's subjects, is bound to have competent skill ; and is bound to treat his or her 432 patients with care, attention, and assiduity ; and if a pei-son dies for want of either, the peraon is guilty of manslaughter. Rej: v. Spiller, 5 C. & P. 333. See Rex v. S/mpsoii, 1 Lewin, C. C. 172 ; Rex V. Ferguson, 1 Lewin, C. 0. 181. _ If a person, bon^ fide and honestly exercising his best skill to cure a patient, performs an operation which causes the patient's death, he is not guilty of manslaughter ; and it makes no difference w^hether such person is a regular surgeon or not, nor whether he has had a regular medical education or not. Rex v. Van Butelisll, 3 C. & P. 629. Gross Misconduct and Bashness.] — A person in the habit of acting as a man mid- wife, tearing away part of the prolapsed uterus of one of his patients, supposing it to be a part of the placenta, by means of which the patient dies, is not indictable for manslaughter, unless he is guilty of criminal misconduct arising either from the grossest ignorance or from the'most criminal inattention. Rex v. Williamson, 3 C. & P. 635. A person acting as a medical man, whether licensed or unlicensed, is not criminally respon- sible for the death of a patient, occasioned by his treatment, unless his conduct is characterized either by gross ignorance of his art, or by gross inattention to his patient's safety. Rex v. St. John Long, 4 C. & P. 398. Where a person, undertaking the cure of a disease (whether he has received a medical edu- cation or not), is guilty of gross negligence in attending his patient after he has applied a remedy, or of gross rashness in the application of it, and death ensues in consequence of either, he is liable to be convicted of manslaughter. Rex V. St. John Long, 4 C. & P. 423. Where a person, grossly ignorant of medicine, administers a dangerous remedy to one labouring under a disease, proper medical assistance being at the time procurable, and that dangerous remedy causes death, the pei'son so administering it is guilty of manslaughter. Rex v. Webb, 1 M. & Rob. 405 ; 2 Lewin, C. C. 196. If a medical man, though lawfully qualified to practise as such, causes the death of a person by the grossly unskilful, or the grossly incautious use of a dangerous instrument, he is guilty of manslaughter. Reg. v. Spilling, 2 M. & Rob. 107. The application by an ignorant person of a corrosive sublimate which • caused death, is evidence for the jury on an indictment for man- slaughter, the question being, under all the cir- cumstances, whether he acted with criminal inattention and carelessness. Reg. v. Crooli, 1 F. & F. 521. Where a person, not a regular practitioner, administers lobelia, a dangerous medicine, which produces death, the question for the jury is, under all the circumstances, whether he has acted so rashly and carelessly as to cause the death. Reg. v. Crieh, 1 F. & F. 519. An unskilled practitioner who ventures to pre- scribe dangerous medicines, of the use of which he is ignorant, shews culpable rashness, for which he will be responsible. Reg. v. Marhuss, 4 F. & F. 356. , ^^ . , On an indictment for manslaughter against a medical man, for administering poison by mistake for some other drug, the prosecution is bound to shew that the poison got into the mixture in conse- quence of his gross negligence, and it is nut Digitized by Microsoft® 433 CRIMINAL IjA^— Murder, Assaults, dec. 434 sufficient to shew merely that the prisoner, who dispensed his own drugs, supplied a mixture which contained a large quantity of poison. The jmy must be satisfied that there was such gross and culpable negligence as would shew an evil mind. Meg. v. Spencer, 10 Cox, C. C. 525. There must be a competent linowledge and care in dealing with a dangerous drug. If a person is ignorant of the nature of the drug he uses, or is guilty of gross want of care in the use of it, he will be criminally responsible for the consequences. Beg. v. 0/iamierlain, 10 Cox, C. C. 486. A person, professing himself to be a herbalist, administered arsenical ointment to a woman having a tumour, of which she died. He gave her no caution or directions as to the use of it. The judge directed the jury, that if he ad- ministered the arsenic without knowing or taking the pains to find out what its effects would be ; or if, knowing this, he gave it to the deceased to be used by her without giving her adequate directions as to its use, he would be guilty of culpable negligence, and therefore of man- slaughter, li. A mistake on the part of a chemist in putting a poisonous liniment into a medicine bottle, instead of a liniment bottle, in consequence of which the liniment was taken by his customer internally, with fatal results, the mistake being made under circumstances which rather threw the prisoner off his guard, does not amount to such criminal negligence as will warrant a con- viction for manslaughter. Meg. v. Noaltes, 4 F. & F. 920. Quantity of Poison administered.] — A medical man who administered to his mother for some disease prussic acid, of which she almost imme- diately died, is not guilty of manslaughter, it not appearing distinctly what the quantity was which he had administered, or what quantity would be too great to be administered with safety to life. Reg. v. JBull, 2 F. & F. 201. c. By Fig'htius. In Suelling^ — Mere Presence, whether Suffi- cient.] — When, upon a previous agreement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder, and the seconds also are equally guilty ; and with respect to others shewn to be present, the question is, did they give their aid and assistance by their countenance and encouragement of the principals in the con- test ? Mere presence will not be sufficient ; but if they sustain the principals, either by advice or assistance, or go to the ground for the purpose of encouraging and forwarding the unlawful con- flict, although they do not say or do anything, yet, if they are present assisting and encouraging by their presence at the moment when the fatal shot is fired, they are, in law, guilty of the crime of murder. Reg. v. Young, 8 C. & P. 644. Where two persons go out to fight a deliberate duel, and death ensues, all persons who are pre- sent, encouraging and promoting that death, will be guilty of murder. And the person who acted as the second of the deceased person in such a duel may be convicted of murder, on an indictment charging him with being present, aiding and abetting the person by whose act the death of his principal was occasioned. Beg. V. Cuddy, 1 0. & K. 210. Excessive Force used.] — Where there had been mutual blows, and then upon one of the parties being pushed dovni on the gi'ound, the other stamped upon his stomach and belly with great force, and thereby killed him, it was con- sidered only to be manslaughter. Bex v. Ayes. B. & K. C. C. 166. But in Bex v. Tliorpe (1 Lewin, C. C), Bayley, J., intimated that death caused by up-and-dovra fighting would be murder. If two persons fight, and one overpowers the other, and knocks him down, and puts a rope round his neck and strangles him, this wiU be murder. Bex v. Shaw, 6 C. & P. 372. Deadly Weapon used.] — If, after an inter- change of blows on equal terms, one of the parties, on a sudden and without any such in- tention at the commencement of the affray, snatches up a deadly weapon and kills the other party with it, such killing will only amount to manslaughter. Bex v. Anderson, \ Euss. C. & M. 731. If, on any sudden quarrel, blows pass without any intention to kill or injure any one materially, and in the course of the scuffle, after the parties are heated by the contest, one kills the other with a deadly weapon, it is only manslaughter. Bex V. Snow, 1 Leach, C. C. 151 ; 1 Bast, 244. And see Bex v. Taylor, 5 Burr. 2792. Use of Deadly Weapon intended from the first.] — But if a party, under colour of fighting upon equal terms, uses from the beginning of the contest a deadly weapon without the knowledge of the other party, whom he kills with such weapon ; or if at the beginning of the contest he prepares a deadly weapon, so as to have the power of using it in some part of the contest, and accordingly does so and kills the other party ; the killing in both these cases vrill be murder. JfJear V. Wlhiteley, 1 Lewin, C. C. 173. If a person, being in possession of a deadly weapon, enters into a contest with another, in- tending at the time to avail himself of it, and in the course of the contest actually uses it, and kills the other, it will be murder ; but if he did not intend to use it when he began the contest, but used it in the heat of passion, in consequence of an attack made upon him, it will be man- slaughter. If he uses it to protect his own life, or to protect himself from such serious bodily harm as would give him a reasonable -apprehen- sion that his life was in immediate danger, having no other means of defence, and no means of escape, and retreating as far as he can, it will be justifiable homicide. Beg. v. Smith, 8 C. & P. 160. If, before the conflict began, the party had drawn his knife in cool blood, in case death had ensued, the offence would have been murder. Rex V. Kessel, 1 C. & P. 437. Deadly Weapon used after Sunning Away.] — If two persons quarrel and begin to fight on even terms, where one, finding himself not equal to his adversary, runs away, and being pursued, draws his knife, and when overtaken by his ad- versary, stabs him ; if death ensues, this would be only manslaughter. II). Digitized by Microsoft® 435 CRIMINAL IjAW— Murder, Assaults, dc. 436 Deadly Weapon used after Feigned Seoon- oiliation.] — If a man, after receiving a blow, feigns a reconciliation, and, after the lapse of a few minutes, invites a renewal of the aggression, with intent to use a deadly weapon, and, on such renewal, uses such weapon with deadly effect, there is evidence of implied malice to sustain the charge of murder. Reg, v. Selten, 11 Cox, C. C. 674. But if, after such reconciliation, the aggi'essor renews the contest, or attempts to do so, and the other, having a deadly weapon about him, on such sudden renewal of the provocation, uses it without previous intent to do so, there is evidence which may reduce the crime to manslaughter. 76. Death of Third Party on Interfering.]— A. was fighting with his brother ; and, to prevent this, B. laid hold of A., and held him down upon a locker on board the barge in which they were, but straok no blow. A. stabbed B. : — Held, that if B. did nothing more than was sufficient to prevent A. from beating his brother, and had died of this stab, the offence of A. would have been murder ; but that if B. did more than was necessary to prevent the beating of A.'s brother, it would have been manslaughter only. Bex v. Bourne, 5 G. & P. 120. d. TTpon Provocation. General Principles.] — The killing a person in an affray, by another who was in a violent heat and passion at the time, will not amount to murder, but manslaughter. Bex v. Banlihi, R. & R. C. C. 43. . If a blow without provocation is wilfully m- flicted, the law infers that it was done with malice aforethought, and if death ensues, the offender is guilty of murder, although the blow may have been given in a moment of passion. Beg. V. yoon, 6 Cox, C. C. 137. Revenge Disproportionate.] — As an assault, though illegal, will not reduce the crime of the party killing the person assaulting him to man- slaughter, when the revenge is disproportionate and barbarous, much less will such personal re- straint and coercion as one man may lawtully use towards another form any ground of extenua- tion. Bex V. Willnvghly, 1 Bast, P. C. 288. Intention to Kill with Deadly Weapon.] — When a person has killed another with a deadly weapon, even upon sudden passion, the question as to the sufficiency of provocation to reduce the crime to manslaughter, is not merely whether there was passion in point of fact, but whether there was such provocation as might natarally kindle ungovernable passion in the mmd m any ordinary and reasonable man. Bsg. v. Weim, 11 Cox, C. C. 336. , .„ ^ , ^ .Where there is the intention to kill (as shewn by the use of a deadly weapon and the infliction of a fatal blow in a mortal part), and there is absence of such serious provocation as might naturaUy kindle ungovernable passion in tne mind of a reasonable man, the crime is murder. If a person receives a blow, and immediately avenges it with any instrument he may happen to have in his hand, and death ensues this wi 1 be only manslaughter, provided the fatal blow is Digitized by Microsoft® to be attributed to, the passion of anger arising from the previous provocation. Box v. Thomas, 7 C. & P. 817. Where Provocation only Slight.] — It is not every slight provocation, even by a blow, which will, when the party receiving it strikes with a deadly weapon and death ensues, reduce the crime from murder to manslaughter. Bex v. Lyneh, 5 C. & P. 324. The prisoner having, after a trifling and casual altercation, sustained several blows from the de- ceased (a stranger to him), instantly stabbed him with a clasp knife he had aboiit him : — Held, that it was for the jury, whether or not the blow was struck in the heat of sudden passion, without previous malice, so as to reduce the offence to manslaughter. Beg. v. Eagle, 2 F. & F. 827. Where one having had his pockets picked, seized the offender, and being encouraged by a concourse of people, threw him into an adjoining pond by way of avenging the theft by ducking him, but without any apparent intention of taking away his life, and the pickpocket was drowned : — Held, that it only amounted to man- slaughter. Bex V. J^'ay, 1 East, P. C. 236. Such provocation must be something serious, as a blow ; and mere words, or gestures, not ac- companied with anything of such a serious character, will not in point of law, be sufficient to reduce the crime to manslaughter. Beg. v. Welsh, 11 Cox, C. C. 336. Insulting Words in Addition.] — An assault, too slight in itself to be a sufficient pro- vocation to reduce murder to manslaughter, may become sufficient for that purpose when coupled with words of great insult. Beg. v. Smith, i ¥. & F. 1066. Killing Wife caught in Adultery.]— If a man finds his wife in the act of committing adultery, and kills her, this will be but manslaughter only ; but if a man takes away the life of a woman, even his own wife, because he suspects, however strongly, that she has been engaged m some illicit intrigue, this will be murder. Beg.Y. Kelley, 2 C. & K. 814. , ^ ,^ . .>>„ If a man kills his wife, or the adulterer, m the act of adultery, it is manslaughter and not mur- der. Pearson's ease, 2 Lewin, C. C. 21b. Wife's Father KUling Husband.] —A father struck a fatal blow at the husband under the im- pulse of strong resentment, caused by seeing his daughter violently assaulted by her husband, although not in a manner to endanger hei life .— Held, that this might be a ground ^pon which the offence of murder might be reduced to that of manslaughter. Beg. v. Sarrmgton, 10 Cox, C. C. 370. Killing Person committing Offence on Son.]- Tf a father sees a person in the act of com- Beg. V. Fisher, 8 C. & P. 182. ^ ^ 437 CRIMINAL 'LAW— Murder, Assaults, dc. 438 Where only a Colourable Excuse.] — If A. has formed a deliberate design to kill B., and after this they meet and have a quarrel, and many blows pass, and A. kills B., this will be murder, if the jury is of opinion that the death was in consequence of previous malice, and not of the sudden provocation. Seg. v. Kirltliam, 8 C. & P. 115. Even blows previously received will not ex- tenuate homicide upon deliberate malice and revenge ; especially where it is to be collected from the circumstances that the provocation was sought for the purpose of colouring the revenge. Rex V. Mason, 1 East, P. C. 239. Where Passion had Time to Cool.] — In a case of death by stabbing, if the jury is of opinion that the wound was inflicted by the prisoner while smarting under a provocation, so recent and so strong that he may be considered as not being at the moment the master of his own un- derstanding, the offence will be manslaughter ; but if there has been, after provocation, sufficient time for the blood to cool, for reason to resume its seat, before the mortal wound was given, the offence will amount to murder ; and if the pri- soner displays thought, contrivance and design in the mode of possessing himself of the weapon, and in again replacing it immediately after the blow was struck, such exercise of contrivance and design denotes rather the presence of judgment and reason than of violent and ungovernable passion. Rex v. MaywaM, 6 C. & P. 157. See also Reg. v. Fisher, supra. Questions for Court and Jnry.J— rin a case of killing, whether the blood has had time to cool or not, is a question for the court, and not for the jury ; but it is for the jury to find what length of time elapsed between the provo- cation received and the act done. Reg. v. Fisher, 8 C. & P. 182. No Evidence. by whom Blow Struck.] — When two or more, one of whom has received the provo- cation of a blow, are charged with murder, and one of them has received a provocation (^s a blow) which would reduce homicide to man- slaughter, and it cannot be proved which of them Inflicted the fatal blow, neither of them can be convicted of murder, without a proof of a com- mon design to inflict the homicidal act ; nor of manslaughter, without proof of a common design to inflict unlavpful violence. Reg. v. Turner, i F. & F. 339. e. By Correction. Excessive, by Person permitted to Correct Moderately] — A schoolmaster who, on the second day of a boy's return to school, wrote to his parent, proposing to beat him severely, in order to subdue his alleged obstinacy, and on receiving the father's reply, assenting thereto, beat the boy for two hours and a half secretly in the night, and with a thick stick, until he died, is guilty of manslaughter. Reg. v. Hopley, 2 F. & P. 202. If a father beats his son for theft so severely with a rope that he dies, it is only manslaughter. Anon., 1 East, P. C. 261 . Where a person in loco parentis inflicts corporal punishment on a child, and compels it to work for an unreasonable number of hours, and beyond its strength, and the child dies, the death being of consumption, but hastened by the ill-treatment, it will not be murder, but only manslaughter in the person inflicting the punishment, although it was cruel and excessive, and accompanied by violent and threatening language, if such person believed that the child was shamming illness, and was really able to do the quantity of work required. Rex v. Cheese- man, 7 C. & P. 454. In a case of manslaughter against the captain and the mate of a vessel for accelerating the death of a seaman, really in ill health, but wlio, they alleged, they believed to be a skulker, the question will be, in determining whether it is a slight or an aggravated case, whether the pheno- mena of the death were such as would excite the attention of reasonable and humane men ; and in such a case, if the deceased is taken on board after he was discharged from a hospital, it is important to inquire whether he was sent on board by the surgeon of the hospital, as a person in a fit state of health to perform the duties of a seaman. Reg. v. Leggett, 8 G. & P. 191. Where a butcher employed the deceased, a shepherd boy, to tend some sheep which were penned, and he negligently suffered some of them to escape through the hurdles ; and the butcher, upon seeing it, ran towards the boy, and, taking up a stake, which was lying on the ground, threw it at him, and inflicted an injury of which he died : — Held, that under the circum- stances it was a question for the jury whether it was murder or manslaughter ; and they found the latter. Rex v. Wiqqs, 1 Leach, C. 0. 379. Infant incapable of appreciating Correction.] — An infant, two yeare of age, is not capable of appreciating correction : a father, therefore, is not justified in correcting it, and if the infant dies owing to such correction the father is guilty of manslaughter. Reg. v. Griffin, 11 Cox, C. C. 402. f. In Defence of Property. In what Cases.] — If a ship's sentinel shoots a man because he persists in approaching the ship when he has been ordered not to do so, it will be murder unless such an act was necessary for the ship's safety. Rex v. Thomas, 1 Kuss. C. & M. 823. A person set to watch a yard or a garden is not justified in shooting any one who comes into it in the night, even if he should see the party go into his master's hen-roost ; but if. from the conduct of the party, he has fair grounds for believing his own life to be in actual and im- mediate danger, he is justified in shooting him. Bsx V. Scully, 1 G. & P. 819. S, Killing without Intention whilst doing' another Act. i. JBlow intended for Anotlier. If, on a sudden quarrel between two parties of keelmen and soldiers, a, blow intended for an individual of one party would, if death ensued, have amounted only to manslaughter ; it will be manslaughter though by accident it kills another. Rex V. Srovm, 1 Leach, G. C. 148 ; 1 East, P. 0. 281, 245, 274. Digitized by Microsoft® 439 CEIMINAL LAW— Murder, Assaults, dc. Throwing Poker at Child. J^Where a mother, being angry with one of her children, took up a small piece of iron used as a poker, and on his running to the door of the room, which was open, threw it after him, and hit another child who happened to be entering the room at the moment, in consequence of which he died: — Held, to be manslaughter, although it appeared the mother had no intention of hitting the child with whom she was angry, and only intended to frighten him. Bex v. Conner, 7 C. & P. 438. ii. Negligence l>y Omissimi or Commission. General Eule.] — Generally, it may be laid down, that, where one by his negligence has contributed to the death of another, he is guilty of manslaughter. Meg. v. Switidall, 2 C. &; K. 230 ; 2 Cox, C. C. 141. That which constitutes murder when by design, and of malice prepense, constitutes manslaughter when arising from culpable negligence. Ueg. v. Hugluis, Dears. & B. C. C. 248 ; 7 Cox, C. C. 301 ; 26 L. J., M. C. 202 ; 3 Jur., N. S. 696. Causing Cart to TJpset.] — A lad, as a frolic, without any intention to do any harm to any one, took the trap stick out of the front part of a cart, in consfequence of which it was upset, and the cannan who was in it, putting in a sack of potatoes, was pitched backwards on the stones and killed : — Held, that the lad was guilty of manslaughter. Ilex v. Sullivan, 7 C. & P. 641. Throwing Box into Sea.] — The mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case, apart from the question of criminal negligence. Therefore the mere fact of a pei'son wrongfully taking up a box from a refreshment stall on a sea pier, and wantonly throwing it into the sea, and thereby unintentionally causing the death of another bathing in the sea, is not per se, and apart from the question of negligence, sufficient to constitute the ofience of manslaughter. Reg. 1. FranMin, 15 Cox, C. C. 163. Negligence in not Providing Necessaries, &c., for Helpless Persons.] — Where from a consci- entious religious conviction that God would heal the sick, and not from any intention to avoid the performance of their duty, the parents of a sick child refuse to call in medical assistance, though well able to do so, and the child consequently dies, it is not culpable homicide. Ueg. i. Wag- staffe, 10 Cox. C. G. 530. A parent who wilfully withholds necessary food from his child, with the wiUul determina- tion by such withholding to cause the death of .the child, is guilty of murder if the child dies. Jieg. V. Conde, 10 Cox, C. C. 547. A parent who has the means to supply neces- saries, but who negligently, though not wilfully, withholds from a child food', which, if adminis- tered, would sustain its life, and the child conse- quently dies, is guilty of manslaughter. J*. An unmarried woman, eighteen years of age, who usually supported herself by her own labour, being about to be confined, returned to the house of her stepfather and her mother. She was taken in labour (the stepfather being absent at his work), and- in consequence of the mother's neglect to use ordinary diligence in procuring Digitized by ' ' 440 the assistance of a midwife the daughter died in her confinement. There was no proof that the mother had any means of paying for the services of a midwife : — Held, that no legal duty was cast upon the mother to procure a midwife, and therefore that she could not be convicted of the manslaughter of her daughter. Beg. v. Shepherd, 9 Cox, C. C. 123 ; L. & C. 147 ; 31 L. J., M. C. 102 ; 8 Jur., N. S. 418 ; 5 L. T. 687 ; 10 W. K. 297. If a person does an act towards another who is helpless, which must necessarily lead to the death of that other, the crime amounts to murder ; but if the circumstances are such that the person could not have been aware that the result would be death, that would reduce the crime to manslaughter, provided that the death was occasioned by an unlawful act, but not such an act as shewed a malicious mind. Meg. v. Walters, Car. & M. 164. If a woman leaves her child, a young infant, at a gentleman's door, or other place where it is likely to be found and taken care of, and the child dies, it will be manslaughter only ; but if the child is left in a remote place, where it is not likely to be found, e. g. on a barren heath, and the death of the child ensues, it will be murder /*. If a master by premeditated negligence, or harsh usage, causes the death of his apprentice, it is murder. • Bew v. Self, 1 Leach, C. C. 187 ; 1 East, P. C. 226. Where a master culpably neglects to supply proper and sufficient food and lodging to a servant during a time when the servant is reduced to and in such an enfeebled state of body and mind as to be helpless, and unable to take care of himself, or is under the dominion and restraint of the master, and unable to with- draw himseU from his control, and the servant's death is caused or accelerated by such neglect, the master is guilty of manslaughter. Reg. v. Smith, L. & C. 607 ; 10 Cox, C. C. 82 ; 34 L. J., M. C. 153 ; 11 Jur., N. S. 695 ; 12 L. T. 608 ; 13 W. K. 816. On an indictment for the murder of an aged and infirm woman, by confining her against her will, and not providing her with meat, drink, clothing, firing, medicines and other necessaries, and not allowing her the enjoyment of the open air, in breach of an alleged duty ; if the jury thinks that the prisoner was guilty of wilf al neglect, so gross and wilful that they are satisfied he must have contemplated her death, he will be guilty of murder ; but if they only think that he was so careless that her death was occasioned by his negligence, though he did not contemplate it, he will be guilty of manslaughter. Beg. V. Marriott, 8 C. & P. 425. And see ante, col. 427. Boat Upsetting.]— A., being on board a, ship, and B. in a boat alongside, they had a dispuce about the payment for some goods, both being fntoxicated!^ A., to get rid of B., Pushed away the boat with his foot ; B. reaching out, to lay h?hl nf a barse to prevent his boat from drifting fway, ovfrbaVced himself and fell into the watirand was drowned. A- ^^%=^f ^^f^''*^ manslaughter :-Held, that these facts did not Constitute that ofEence. Bex v. Waters,^ C. & P. 328. Non-repair of Eoaas.]-Trastees appointed Microsoft® 441 CRIMINAL JuKNf— Murder, Assaults, &c. 442 under a local act for the purpose of repairing roads in a district, with power to contract for executing such repairs, are not chargeable with manslaughter if a person using one of such roads is accidentally killed in consequence of the roads being out of repair through neglect of the trustees to contract for repairing it. Beg. \.. Pococli, 17 Q. B. 34 ; 5 Cox, 0. C. 172. Servant not Watching Tramway.] — The private servant of the owner of a tramway crossing a public road was entrusted to watch it ; , while he was absent from his duty an accident happened, and a person was killed. The private act did not require the owner to watch the tram- way : — Held, that there was no duty between the owner and the public, and, therefore, his servant was not guilty of negligence, so as to make him guilty of manslaughter. Meg. v. Smith, 11 Cox, C. C. 210. Exposure to Cold.] — A person was indicted for manslaughter. The evidence was that he struck the deceased twice with a heavy stick, that he afterwards left him asleep by the side of a small fire in a country lane during the whole of a frosty night in the month of January, and the next morning, finding him just alive, put him under some straw in a barn, where his body was found some months afterwards. The jury was directed that if death resulted from the beating or from the exposure during the night in question, such exposure being the result of criminal negligence, or from the prisoner leaving the boy under the straw ill, but not dead, the prisoner was guilty of manslaughter. Reg. v. Martin, 11 Cox, C. C. 136. Through Neglect of Duty.]— To render a person liable to conviction for manslaughter through neglect of duty, there must be such a degree of culpability in his conduct as to amount to gross negligence. Ueg. v. Finney, 12 Cox, C. C. 625. An act of omission, as well as of commission, may be so criminal as to be the subject of an indictment for manslaughter, iieo. v. Lowe, 3 C. & K. 123 ; 4 Cox, C. C. 449. In Conduct and Uanagement of Steam Engines and Railway Trains.] — Where a man, appointed to superintend a steam-engine, em- ployed in a colliery for the purpose of raising colliers from the pits, left the engine in the charge of an ignorant boy, who told him that he was unable to manage it, and in the absence of the engineer a man was drawn up, who was killed from the want of skill in the boy to manage the engine : — Held, that this was man- slaughter in the engineer. Ih. An explosion occurred on board a steamer, whereby one of three persons in charge of her was killed. The circumstance that the valves were out of order is not sufficient to make out, against either or both of them (one being the master and the other engineer), a case of such culpable negligence as would sustain a charge of manslaughter. Beg. v. Gregory, 2 F. & F. 153. On an indictment against an engine-driver and a fireman of a railway train, for the man- slaughter of persons killed while travelling in a preceding train, by the prisoners' train running into it, it appeared that on the day in question special instructions had been issued to them, which in some respects differed fi'om the general rules and regulations, and altered the signal for danger, so as to make it mean not " stop," but "proceed with caution;" that the trains were started by the superior officers of the company irregularly, at intervals of about five minutes ; that the preceding train had stopped for three minutes, without any notice to the prisoners except the signal for caution ; that their train was being driven at an excessive rate of speed ; and that' then they did not slacken im- mediately on perceiving the signal, but almost immediately, and that as soon as they saw the preceding train they did their best to stop, but without efEect : — Held, first, that the special rules, so far as not consistent with the general rules, superseded them. Beg. v. Trainer, 4 F. & F. 105. Held, secondly, that if the prisoners honestly believed they were obser^ng them, and they were not obviously illegal, they were not crimi- nally responsible. Ji. Held, thirdly, that the fireman, being bound to obey the directions of the engine driver, and, so far as appeared, having done so, there was no case against him. lb. Upon a trial for manslaughter, it appeared that the prisoner was the driver and the deceased was the fireman of a steam-engine on a railway, and that the death of the latter was caused by the engine coming into collision with a train standing on the same line of rails, owing to a neglect on the part of the person in charge of the engine to keep a sufficient look out. There was evidence that it was the duty of the prisoner, or of the deceased, to keep the look out, but there was no evidence as to which of the two was charged with the duty at the time of the collision : — Held, that the prisoner was entitled to an acquittal. Reg. v. Gray, 4 F. & F. 1098. When a collision occurs on a railway, and death is caused, the person responsible is the man actually in charge of the engine, and whose negligence caused the accident at the time of the collision. Beg. v. Bireliall, 4 F. & F. 1087. Maker of Imperfect Cannon.] — An iron- founder being employed by an oilman and a dealer in inarine stores to make some cannon, to be used on a day of rejoicing, and afterwards to be put into a sailing boat ; after one of them had burst, and been returned to him in conse- quence, sent it back in so imperfect a state, that on being fired it burst again, and killed a third person : — Held, that the maker was guilty of manslaughter. Bex v. Co»'»', 8 C. & P. 163, n. Causing Mine to be Ventilated.] — If it is the duty of a person, as a ground bailifE of a mine, to cause the mine to be properly ventilated by causing air-heading to be put up where neces- sary, and by reason of his omission in this respect another is killed by an explosion of fire- damp, such person is guilty of manslaughter, if by such his omission he was guilty of a want of ordinary and reasonable precaution, and if it was his plain and ordinary duty to have caused an air-heading to have been made, and a man using reasonable diligence would have done it. Beg. V. Haines,, 2 C. & K. 368. Digitized by Microsoft® 443 CEIMINAL LAW — Murder, Assaults, dc. 444 Incautious Working in Shaft.] — The deceased was with others employed in walling the inside of a shaft. It was the duty of the prisoner to place a stage over the mouth of the shaft, and the death of the deceased was occasioned by the negligent omission on his part to perform such duty. He was convicted of manslaughter : — Held, that the conviction was right. Reg. v. Hughes, Dears. & B. C. C. 248 ; 7 Gox, G. C. 301 ; 26 L. J., M. C. 202 ; 3 Jur., N. S. 696. By Letting Loose Vicious Animals.] — A man who having a. horse, which he knows to be vicious and dangerous, turns it out upon a com- mon, through which, to his knowledge, pass much frequented public footpaths, which are not fenced off, is guilty of culpable negligence, and if the horse kills any one passing over the common, he may be convicted of manslaughter ; nor is it any defence that the deceased had strayed from the way, where he is still so near it that the jury cannot say whether he is on or off the path. Reg. v. Dant, L. & C. 567 ; 10 Cox, C. C. 102 ; 34 L. J., M. C. 119 ; 11 Jur., N. S. 549 ; 12 L. T. 396 ; 13 W. E. 663. In Navigating Vessels.] — Those who navigate the river Thames improperly, either by too much speed or by negligent conduct, are as much liable, if death ensues, as those who cause it on a public highway on land, either by furious driving or by negligent conduct. Beg. v. Taylor, 9 C. & P. 673. , .,^ To make the captain of a steam vessel guilty of manslaughter, in causing a person to be drowned by running down a boat, the prosecutor ■ must shew some act done by the captain ; and a mere omission on his part, in not doing the whole of his duty, is insufficient. Rex v. Green, 7 G. & P. 156. But if there is sufficient light, and the captain of a steamer is either at the helm or m a, situa- tion to be giving the command, and do^ that which causes the injury, he is gmlty of man- slaughter. n>. , The captain and pilot of a steam boat were both indicted for the manslaughter of a person who was on board . smack, by ^^^fJ^Sj^ smack down. The running down wa^ attributed, on the part of the prosecution, to improper steerage of the steam boat, arising from there not biing a man at the bow to keep a look-out at the time of the accident. It was proved that there waH man on the look-out when the vessel ^S about an horn-previously. According to one witness, the captain and pilot were both on the S^e between^the paddle-boxes ; according to another, the pilot was alone on the paddle box^Held, that there was not such personal misconduct 'on the part of e^th^ as to make them guilty of felony. Rex v. Allen, 7 G. & l". ^"persons on board a ship are necessarily subject to something like a despotic government, and it i, extomSf important that the law should •egulate the conduct of those who exercise dominion over them. Reg. v. Leggett, 8 G. & P. 191. In Driving Carriages or Horses.]-If a person is driving a fart at an unusual y rapid pace and drWerover another and kills him, he is gmlty of daughter, though he -Ued to the deceased to get out of the way, and he might have done ^ Digitized by Microsoft® so, i£ he had not been in a state of intoxication. Rex V. Walker, 1 G. & P. 320. The fact that streets are usually crowded from any public procession, or other cause, instead of excusing a driver when proceeding at his ordi- nary pace, and with ordinary care, requires him to be particularly cautious, and may tend to render him criminally answerable for any acci- dents ensuing from driving at a rate, and with those precautions which he might have ordinarily observed. Reg. v. Murray, 5 Cox, C. G. 509. A foot passenger walking by lamplight in the carriage road along a public highway, the owner of a cart, who was proved to be near- sighted, drove along at the rate of eight or nine miles an hour, sitting at the time on a few sacks laid on the bottom of the cart, and ran over the foot passenger and killed him: — Held, that he was guilty of such carelessness as amounted to the crime of manslaughter. Rex V. Grout, 6 C. & P. 629. If the driver 'of a carriage is racing with another carriage, and, from being unable to pull up his horses in time, the first-mentioned carriage is upset, and a person thrown off it and killed, this is manslaughter in the driver of the carriage. Rex v. Tiiivmina, 7 C. & P. 499. If A. and B. are riding fast along a highway, as if racing, and A. rides by without doing any mischief, but B. rides against the horse of C., whereby C. is thrown and killed, this is not manslaughter in A. Rex v. Mastin, 6 C. & P. 396. If each of two persons is driving a cart at a dangerous and a furious rate, and they are in- viting each other to drive at a dangerous and a furious rate along a turnpike road, and one of the carts runs over a man and kills him, each of the two persons is guilty of manslaughter. Reg. V. Swindall, 2 G. & K. 230 ; 2 Gox, G. C. 141. A driver of a spring cart, standing in the cart and di-iving along a public road without reins, but not driving fariously, when a child runs across the road before the cart, and is killed by the wheel passing over it, is not giilty ot manslaughter, unless he could have saved the life of the child if he had been driving with the reins in his hand. Reg. v. Dalloway, 2 Gox, C C 273. If' the driver of a conveyance uses all reason- able care and diligence, and an accident happens through some chance which he could not foresee or avol he isnot to be held liable for the results of such accident. Reg. v. Murray, 5 Gox, C. O. ""if a man undertakes to drive another in a vehicle, he is bound to exercise proper care in regard to the safety of the man under his charge and 5 by culpably negligent driving he causes the death of the other, he will be guilty of man- slaughter. But he cannot be found gmlty of manllau^hter if the deceased himself mtcriered S the management of the horse and thereby drunk. Reg. v. Jones, 11 Gox, G. o. a*i , L. T. 217. ■Rv DeadlV ■Weapons.]-When aperson iu'es at ano^hei a /rearmVoviing it to be loaded, and 445 CRIMINAL LAW— MwrcZer, Assaults, dc. 446 therefore intending either to kill or to do grievous bodily harm, if death ensues the crime is murder; and if in such case the person who fires^ the weapon, though Jie does not know that it is loaded, has taken no care to ascertain, it is manslaughter. Beg. v. Campbell, 11 Cox, C. C. 323 One who points a gun at another without previously examining whether it is loaded or not, if the weapon should accidentally go off and kill him towards whom it is pointed, is guilty of manslaughter. Reg. v. Jonas, 12 Cox, G. 0. 628. If there is no legal excuse for using a gun, but nevertheless it is resorted to, and is fired even accidentally, it is manslaughter, and the jury having found that there was no necessity, but that the gun, being levelled at the deceased with no intention- of discharging it, went off by accident : — Held, that the prisoner was guilty of manslaughter. Beg. v. Weston, li Cox, C. C. 346. Where A., having a right to the possession of a gun which was in the hands of the deceased, and which he knew to be loaded, attempted to take it away by force, and in the struggle which ensued the gun went off accidentally and caused the death of the deceased : — Held, that as the death was caused by the discharge of the gun, which was the result of the unlawful act of A., he was guilty of manslaughter. Bet/, v. Archer, 1 F. & F. 861. Where a gamekeeper tried to arrest a man whom he found poaching, and a gun which the poacher had went off and shot the keeper : — Held, that even although the gun went off acci- dentally in the coulee of a scuffle with the keeper, he having a right to take the gun, it was manslaughter in the man who caused it. Bey. V. Sheet, i F. & F. 931. A., B. and C. went into a field in proximity to certain roads and houses, taking with them a rifle which would be deadly at » mile, for the purpose of practising firing with it. B. placed a board, which was handed to him by A., in the presence of C, in a tree in the field as a target. All three fired shots directed at the board so placed, from a distance of about 100 yards. No precautions of any Idnd were taken to prevent danger from such firing. One of the shots thus fired by one, though it was not proved by which one, of them, killed a boy in a tree in a garden near the field, at a spot distant 393 yards from the firing point. A., B. and C. were all found guilty by a jury of manslaughter : — Held, that A., B. and C. had been guilty of a breach of duty in firing at the spot in question, without taldng proper precautions to prevent injuiy to others, and were rightly convicted of manslaughter. Beff. V. Salmon, 6 Q. B. D. 79 ; 50 L. J., M. C. 25 ; 43 L. T. 573 ; 29 W. E. 246 ; 45 J. P. 270 ; 14 Cox, C. C. 494. Giving Spirituous liquors or Poison.] — A party causingthe death of a child, by giving it spirituous liquors in a quantity quite unfit for its tender age, is guilty of manslaughter. Bt;v v. Martin., 3 0. & P. 211. The prisoner was convicted of manslaughter. It appeared that he procured sulphate of potash, and gave it to his wife, intending her to take it for the purpose of procuring abortion, and that she, believing herself to be pregnant, although in reality she was not, took the sulphate of potash in his absence, and died from its effects : — Held, that the conviction was right. Beg. v. Gaylor, Dears. & B. C. C. 288 ; 7 Cox, C. C. 253. Negligence of Others as well as of Prisoner.]— Although it is manslaughter where the death was the result of the joint negligence of the prisoner and others ; yet it must have been the direct result, wholly or in part, of the prisoner's negli- gence, and his neglect must have been wholly or in part the proximate and eificient cause of the death, and it is not so where the negligence of some other person has intervened between liis act or omission and the fatal result. Beg. v. Ledger, 2 F. & F. 857. It is no defence in a case of manslaughter that the death of the deceased was caused by the neg- ligence of others as well as by that of the prisoner ; for if the death of the deceased is caused partly by the negligence of the prisoner and partly by the negligence of others, the prisoner and all those others are guilty of man- slaughter. Beg. V. Haines, 2 C. & K. 368. Contributory Negligence of Deceased no De- fence.] — Wherever death ensues from injuries inflicted by parties engaged in any illegal act, an indictment for manslaughter will lie, even though it appears that the deceased had materially con- tributed to his death by his own negligence. Reg. V. Longbottom, 3 Cox, C. C. 439. If a person is driving a cart at a very rapid pace and kills a man, he is guilty of manslaughter though he called to deceased to get out of the way, and the deceased might have done so, if he had not been in a state of intoxication. Bex v. WalTier, 1 C. & P. 320. It is no ground of defence that the death was partly caused by the negligence of the deceased himself or that he was either deaf or dumb at the time. Beg. v. Swindall, 2 Cox, C. G. 141 ; 2 C. & K. 230. Contributory negligence is not an answer to a criminal charge as it is to a civil action. Beg, v.' Kew, 12 Cox, C. C. 355. If a person undertakes to drive another and drives so unskilfully and negligently aS to cause death, he cannot be found guilty of manslaughter if the deceased himself interfered in the manage- ment of the horse, and thereby assisted in bring- ing about an accident. Beg. v. Jones, 11 Cox, C. C. 544 ; 22 L. T. 217. In one case it was held that a man was not criminally responsible for the death of another party caused by his negligence, where he would not have been civilly liable in an action at the suit of the party injui-ed, if the injuries sustained had fallen short of causing his death. Beg. v. Birchall, 4 F. & F. 1087. Ii. Killing' Officers of Justice. Illegal Arrest.] — Attempting illegally to arrest a man is sufficient to reduce killing the peraon making the attempt to manslaughter, though the arrest was not actually made, and though the prisoner had armed himself with a deadly weapon to resist such attempt, if the prisoner was in such a situation that he could not have escaped from the arrest ; and it is not necessaiy that he should have given warning to the person attempting to arrest him before he struck the blow. Bix v. Thompson, 1 M. C. C. 80. Digitized by Microsoft® 447 CRIMINAL LAW— iJf«rrfer, Assaults, dc. <,+ T7~* f"™ ^^^^^ Constable in.]— If a con- stable takes a man without warrant upon a charge which gives him no authority to do so and the prisoner runs away and is pui-sued by J. b., who was with the constable all the time and charged by him to assist, and the man kills \^ prevent his retaking him, it will not be muider, but manslaughter only ; because, if the original arrest was illegal, the recaption would have been so likewise. Rex v. Cnrran, 1 M C t. ia2. See Meg. v. Portitr and Ben. v. Phclvs infra. -' ' By Prisoner Escaping.] _ If a man, having been lawfully apprehended by a police constabll on a crimmal charge, uses violence to the con- stable or to anyone lawfully aiding or assisting him, which causes death, and does so with intent to inflict gi-ievous bodily injuiy, he is guilty of murder. Reg. v. Porter, 12 Cbx, C. C. 444 And so, if he does so only with intent to escape._ BuJ if, m the coui-se of the stru?o-le he accidentally causes an injury, it would be Inanslaughter. lit. Warrant— Christian Name Omitted ]— A war rant leaving a blank for the christian name of the person to be apprehended, and giving no reason for omitting it, but describing him only as the son of J. S. L. (it appeared that J. S. L had four sons, all living in his house), and stating the charge to be for assaulting A., with- out particularizing the time, place, or any other circumstances of the assault, is too general and uuspeoiflo. A resistance to an arrest thereon, and killing the person attempting to execute it, will not be murder. Ri'.i/ v. Hood, 1 M. C. G 281 ; S. P., Hoye v. Bnslt, 2 Scott, N. E. 86 ; 1 M. & G. 77.5 ; 1 Drink. 15. — — Given to Constable's Sou.]— A constable, having a wan-ant to apprehend A., gave it to his son, who, in attempting to arrest A., was stabbed by him with a knife which A. happened to have in his hand at the time, the constable then being in sight, but a quarter of a mile off : — Held, that his arrest was Ulegal ; and that, if death had ensued, this would have been manslaughter only, unless it was shewn that A. had prepared the knife beforehand to resist the illegal violence. Re.): V. Patience, 7 C. & P. 795. Informality of, T7nknown to Prisoner.] — K. and D. were arrested in England upon Irish warrants which were not backed in England. and which did- not specify with what particular felony they were charged. They were brought before a magistrate and remanded. "When being conveyed in a police-van through the streets of Manchester in the daytime, the now prisoners, armed with revolvers, attacked the van, the police-sergeant in charge of it was shot by one of the prisoners, and K. and D. escaped. Upon the trial of the prisoners for -wilful murder, it was contended that the arrest of K. and D. being illegal by reason of the informality of the war- ' rants, the offence committed amounted only to manslaughter : — Held, that in view of the facts that K. and D. had been for some time in custody, that the informality of the warrants was unknown to the prisoners, and that they deliberately, and with premeditation, devised and carried out the attack which resulted in the death of the police- Digitized by 'Microsoft® 448 sei^oant, the offence was murder and not man- slaughter. Reg. .-. Allen, 17 L. T. 222 A police-officer is protected if he acU imnn a ^tjKnJ fu '^-^'^ '° ^'^''^g by a premedil tated attack, wi h a view to a rescue, the crime will be muider, the proper course being to apply to a court of law for a habeas corpus tl have the prisoner discharged from custody. lb. In Case of Felony. ]-Killmg an officer will amount to murder, though he had no warrant, ''"lT^r,"°* present when any felony was com- mitted, but takes the party upon a charge only ; and though such charge does not in terms specify an the particulai-s necessary to constitute the telony. Rex v. Pord, E. & R. C. C. 329. Killing an officer who attempts to arrest a man on a charge of felony will be murder, though the officer had no warrant, and though the man has done nothing for which he was liable to be arrested, if the man knows the in- dividual to be an officer, though the officei- does not notify to him that he has such a charge. Ri:e V. Woulmer, 1 M. C. C. 334. When Person found Committing Offence.]— If the servant of the owner of property found a party actually committing an offence against 7 & S Geo. 4, c. 29, and apprehended him under s. 63, and, while taking the party to a magistrate, such party killed him, this will be murder ; but if the servant either did not see him in the actual com- mission of the offence, or is taking him to any other place than before a magistrate, it will not be murder. Rea; v. Cnrran, 3 C. & P. 397. Stolen Potatoes in Possession.] — A police officer found N. with potatoes under his shirt, which had been recently dug fi-om the ground, and apprehended him. The policeman called 0. to assist him ; 0. did so, and a rescue being at- tempted, 0. was struck by A., who went away, and 0. was afterwards killed by other persons, who attempted the rescue : — Held, that the police officer had no right to apprehend N"., and that the killing of 0., therefore, did not amount to murder. Reg. v. Plielps, Car. & M. 180 ; 2 M. C. C. 240. Apprehension of Poachers by Gamekeepers.] — Under 9 Geo. 4, c. 69, s. 2, a gamekeeper may apprehend poachei-s, though there are three or more, and found armed ; for though s. 2 only authorizes apprehending for what are offences under s. 1, and when there are three or more armed, they are punishable under s. 9 ; yet what is punishable under s. 9 is nevertheless an offence under s. 1, though the circumstances of aggi-a- vation make it liable to a greater punishment ; and if the gamekeeper is killed in the attempt to apprehend, the offender will be guilty of mur- der, though the gamekeeper had previously struck the offender, or any of his party, if he struck in self-defence only, and to diminish the violence illegally used against him, and not vindictively to punish. Bex v. Ball, 1 M. C. C. 330. if a gamekeeper, attempting lawfully to appre- hend a poacher, is met with violence, and in opposition to such violence, and in seU-defence, strikes the poacher, and then is killed by the poacher, it will be murder. Bex v. Ball, \ M. C. C. 333. A seivant of C. attempted to apprehend A., 449 CEIMINAL IjAW— Murder, Assaults, dc. 450 who was out night-poaching in a wood, and the servant- was killed by A. 0. was neither the owner nor the occupier of the wood, nor the lord of the manor, C. having only the permission of the owner of the wood to preserve game there : — Held, that this was manslaughter only in A. lltix V. Addis, 6 C. & P. 388. If a servant of A. (who is not lord of the manor) finds a night poacher on the lands of B., and puraues him with intent to take him, this is such an attempt at an illegal arrest, that if the poacher shoots the servant with the gun which he has in his hand, and kills him, this will be manslaughter only. Rex v. Davis, 7 0. & P. 783. Prosecution must shew Lawful Authority.] — ■ Where a common soldier stabbed a sergeant in the same regiment who had arrested him for some alleged misdemeanor : — Held, that as the articles of war were not produced, by which the arrest might have been justified, it was only man- slaughter, as no authority appeared for the arrest. Rex v. Whithers, 1 East, P. C. 295, 360. Knowledge or ITotiflcation that Person is an Officer.] — In order to make the killing of an officer of justice, whether he is authorized in right of his office, or by warrant, amount to murder upon his inteilerence in an affray, it is necessary that he should have given some notifi- cation of his being an officer, and of the intent with which he interfered. Rci- v. Gordon, 1 East, P. C. 315, 352. If a man knows that the person arresting him is an officer, the latter need not notify the fact to the former. Re,x v. Woolmer, 1 M. C. C. 334. Manner in which Authority Exercised.] — If a pei'son is playing music in a public thorough- fare, and thereby collects together a crowd of people, a policeman is justified in desiring him to go on, and in laying his hand on him and slightly pushing him, if it is only done to give effect to his remonstrance ; and if the person, on so small a provocation, strikes the policeman with a dangerous weapon and kills him, it will be murder ; but otherwise, if the policeman gives him a blow and knocks him down; Rex v. Jiagan, 8 C. & P. 167. If a police constable, on being sent for at a late hour of the night to clear a beer-house, does so, and one of the persons, on leaving the house, and being told to go away, refuses to do so, and uses threatening language, the constable is justified in laying hands on him to remove him ; and if he cuts the constable with a knife, with intent to do grievous bodily harm, this is a capital offence, and the fact of the constable having laid hands on the party, would not have reduced the crime to manslaughter, if death had ensued. Rex v. Hems, 7 C. & P. 312. i. Killing: by OfS.cers of Justice. No Means of Apprehension.] — It is no excuse for killing a man who was out at night dressed in white as a ghost, for the purpose of frighten- ing the neighbourhood, that he could not other- wise be taken. Mex v. Smith, 1 Euss. C. & M. 749. Without Authority.] — Two soldiers not be- longing to a recruiting party, who were in a public-house, wished to enlist M. and gave him a shilling for that purpose, and M. afterwards wishing to go away, an altercation ensued, and one of the soldiers stood at the door with his drawn sword and swore he would stab any person who attempted to come out. The land- lord of the house was stabbed in the scuffle. It was argued that the soldiers had authority to enlist M., and that what was done was merely to prevent his rescue ; but it was held that they had no authority and therefore that it was mur- der. Rex V. Longden, R. & E. C. C. 228. To prevent Impressment.] — ^If a person is impressed who is not a proper object of impress- ment, or if the impressment is made without any legal warrant, it is lawful for the party to make resistance ; and if the death of the party impressed ensues it is murder. Rex v. Dixon, 1 East, P. C. 313 ; E. & K. C. C. 53 ; S. P., Rex V. Rohety, 1 Bast^ P. C. 312. j. EiUing' in Self-BefezLce. In what Cases a Defence.] — The use of such a weapon as a gun even against an unarmed man, may be excused or justified, not only by necessity for defcHce against death or serious injury, but the reasonable apprehension of it. Reg. v. Weston, 14 Cox, C. C. 346. The killing a man on the highway is not justi- fiable homicide, unless there was an intention on the part of the person killed to rob or murder, or do some dreadful bodily injury to the person killing ; or, in other words, the conduct of the party must be such as to render it necessary on the part of the party killing to do the act in self-defence. Reg. v. Bull, 9 C. & P. 22. A person set to watch a yard or a garden is not justified in shooting any one who comes into it in the night, even if he should see the party go into his master's hen-roost ; but if, from the con- duct of the party, he has fair grounds for believing his own life to be in actual and iramediate danger, he is justified in shooting him. Rex v. Sonlly, 1 C. & P. 319. The right of self-defence does not justify counter-blows struck with a desire to fight. Reg. V. Knock, 14 Cox, C. C. 1. 5. Indictment. What is — Coroner's Inquisition.] — ^A coroner's inquisition is an indictment, within 24 & 25 Vict, c. 100, s. 6 (infra), and it is, therefore, uimeces- sary to set forth therein the manner in which, or the means by which, the death of the deceased was caused. Reg. v. Ingham, 5 B. & S. 257 ; 9 Cox, C. C. 508 ; 3S L. J., Q. B. 183 ; 10 Jur., N. S. 968 ; 10 L. T. 456 ; 12 \V. B. 793. Manner and Means of Death.] — By 24 & 25 Vict. c. 100, s. 6, in any indictment for miwrder or manslaughter, or for heing an accessory to any murder or manslaughter, it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in any indictment for mur- der to charge that the defendant did feloniously , wilfully and of his malice aforethought hill and mmrder tile deceased ; and it shall be sufficietit in any indictment for manslwughter to charge tlukt tJie Aefeiidant did feloniously hill and slay the deceased ; And it shall be sufficient in any indictmejit Digitized by Microsoft® 451 CEIMINAL 1,K^— Murder, Assaults, oisoning or hurt upon the sea, or at any jylace out of England or Ireland, . every offence com- mitted in respect of amy such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory to murder or manslaughter, may ie dealt with, inquired of, tried, determined and punished in the county or place in England or Ireland in which such death stroke, poisoning or hurt shall happen, in the same manner in all respects as if sueh offence had been wholly committed in that county or place. (^Former provision, 9 Geo. 4, c. 31, s. 8.) Semble, that where guns are fired by one vessel at another vessel, and those on board her gene- rally, those guns are to be considered as shot at each individual on board her. Bex v. Bailey, R. & R. C. C. 1. OfEeuce Abroad by Alien Enemy.] -—A manslaughter committed in China by an alien enemy who had been a prisoner of war, and vvas then acting as a mariner on board an English merchant ship, could not be tried here under a commission issued in pursuance of 33 Hen. 8, c. 23, and 43 Geo. 3, c. 113, s. 36. Bex v. Bepardo, 1 Taunt. 26 ; R. & R. C. C. 134. By British Subject of British Subject Abroad.] — A British subject was indictable under 33 Hen. 8, c. 23, for the murder of another British subject, though the murder was com- mitted within the dominion of a foreign inde- pendent state. Bex v. Sawyer, R. & R. 0. C. 294 ; 2 C. & K. 101 ; -S. P., Bex v. Ealing, Car. C. L. 105. By Foreigner of British Subject— Blow- Abroad— Death on Ship.]— A Spaniard, being in England, signed articles to serve m a ship bound on a voyage to the Indian seas and elsewhere, on a seeking and trading voyage (not exceeding three years' duration), and back to the United Kingdom." On the ship's arrival at Zanzibar, an island in the Indian seas, which was under the dominion of an Arab king, the captain left the vessel (in pursuance of an understanding m England), and set up in trade, and, without the consent of the rest of the crew, engaged the Spaniard as an interpreter, the new captam of the ship not requiring him to serve on board The ship went two or three short voyages without him, and returned to anchor a few hundred yards from the shore, in a roadstead of seven fathoms water, between Zanzibar and several other hlands. The crew being on shore, a quarrel aroTbetween the Spaniard and one of them wh oh led to blows by the Spaniard, which killed Te other The death took place on board ship. The Spaniard was brought to England, and m- Ifcted and tried in London under a special com- mission issued in pursuance of 9 Geo. 4, c. di, S. T-Held that he could not be convicted-first, Lhe wll'not a subject of "'^^-^-^f'^^^Zt^ meaning of that section ; and secondly, ftat as 469 CRIMINAL 'LAW— Murder, Assaults, dc. the death was on shipboard, though the blows were given on shore, the offence could not be said to have been committed according to the words of the statute, " on land out of the United Kingdom." Ssa; v. Mattos, 7 C. & P. 458. By British Subject of Foreigner Abroad.] — A British subject, who committed a murder in a foreign country upon a person who was not a British subject, was triable in England under 9 Geo. 4, c. 31, s. 7. Beg. v. Azzopardi, 1 C. & K. 20.S ; 2 M. C. C. 289. Ship taken by British Ship.]— On the trial of Brazilians for the murder of P., it ap- peared, that a British cruiser, engaged in the prevention of the slave-trade, manned two boats, and sent them, commanded by a lieutenant, to board the Brazilian ship F. He did so, and finding her fitted up for slaves, but with no slaves on board, took her. After this, the lieu- tenant in the ship F. chased the ship E., also Brazilian, and sent a boat with P., who was a midshipman, to board her. She had slaves on board, and was captured, and part of her crew put on board the P., and left there, with the captain and cook of the F.,as prisoners in charge of P. and British seamen. Neither the boats nor the F., after she was taken, had any instructions on board, but the cruiser had. Such of the crew of the E. as were thus put on board the F., and the cook of the F., all Brazilians, rose on P. and the British seamen and killed them all ; but the captain of the F. would not join in the transaction. It was contended for the prosecu- tion, that the F. and E. were legally taken under 5 Geo. 3, c. 113, and 7 & 8 Geo. 4, c. 74, and the Portuguese and Brazilian treaties as to slave-trading ; and that the prisonere were in lavrful custody, and the ship F. in the lawful custody of the Queen's officers. The prisoners were convicted of the murder, but a majority of the judges held the conviction wrong, on the ground of want of jurisdiction in an English court to try an offence committed on board the F. ; and that, if the lawful possession of that vessel by the British Crown through its oiBcers would be sufficient to give jurisdiction, there was no evidence brought before the court at the trial to shew that the possession wasi lawful. Riy. V. Sena, 2 C. & K. 53 ; 1 Den. C. 0. 104. Whether Ship is British.] — Upon an in- dictment for murder, it was proved that the offence was committed upon the high seas, in a ship sailing under the British flag, which was foreign built, and all the crew of which, both officers and men, including the prisoner and the deceased, were forei^ers. A certified copy of the register was put in evidence, in which one Rehder was described as the sole owner, and as -being of London, and a merchant. Eehder was not a born Englishman, and there was no evi- dence of his having letters of denization, or that he had been naturalized:— Held, that the ship was not a British ship so as to give jurisdiction in this country to try the offence. Beq. v. Biorn- sen, 10 Cox, C. C. 74 ; L, & C. 545 : '34 L. j., M C. 180 ; 11 Jur., N. S. 589 ; 12 L. T. 473 ; 13 W. R. 664. By Foreigner of Foreigner Abroad— Death in England.]— If one foreigner inflicts a blow on another foreigner in a foreign vessel on the 470 high seas, and the person so struck in a few days afterwards lands in England and dies there, the homicide is not cognizable by the courts of this country by virtue of 9 Geo. 4, c. 31, s. 8, or of 2 Geo, 2, c. 21, s. 1. Beg. v. Lewis, Dears. & B. C. C. 182 ; 7 Cox, C. C. 277 ; 26 L. J., M. C. 104 ; 3 Jur., N. S. 525. -—By Foreigner on board British Ship.] — A foreigner on board a British ship on the high seas owes allegiance to the law of England, and if he commits an offence against that law, he is triable under 18 & 19 Vict. c. 91, s. 21, by any court of justice in her Majesty's dominions, within the jurisdiction of which he may, at the time of the indictment, happen to be, provided that such court would have had cognizance of the crime if committed within the limits of its ordinary jurisdiction. Beg. v. Sattler, Dears. & B. C. C. 525 ; 7 Cox, C. C. 431 ; 27 L. J., M. C. 48 ; 4Jur., N. S. 98. Where a foreigner, having committed larceny in England, was followed to Hambui^h by an English police-officer, who arrested him without a warrant, and brought him against his will on board an English steamer trading between Ham- burgh and London, and there kept him in cus- tody in order that he might be tried for the larceny in England : the foreigner having shot the oificer during the voyage, and whilst Ihe steamer was on the high seas, under such circum- stances that if the killing had been by an Eng- lishman in an English county, the offence would have been murder : — Held, that the Central Criminal Court had jurisdiction under 18 & 19 Vict. c. 91, s. 21, to try the foreigner for the murder of the police-officer. Ih. Indictment.] — In an indictment on 9 Geo. 4, c. 31, s. 7, for murder committed by a British subject abroad, it must be averred that the prisoner and the deceased were subjects of his Majesty. To prove the allegation that the prisoner was a subject of his Majes-ty, his own declaration is evidence to go to the jury, and it will be for them to say, whether they are satis- fied that he is in fact a British-born subject. Bex V. JSelsliam, 4 C. & P. 394. Trial— When separate Trials of different Prisoners.]— Where two persons charged with murder by the same indictment had made state- ments implicating one another, and those state- ments were evidence for the prosecution, the court, upon the application of the counsel appearing for one prisoner, allowed -them to have separate trials. Beg. v. Jacltson, 7 Cox, C. C. 357. Power to return Verdict of Manslaughter on Indictment for Murder.]— On an indictment for murder the power of the jury to return a verdict of manslaughter for criminal negligence by the accused depends upon the circumstances of the particular case. Beg. v. French, 14 Cox, C. C. OZot ' Verdict of Assault.]— On an indictment for murder against several, one cannot be con- victed of an assault committed on the deceased m a previous souffie, such assault not being in any way connected with the cause of death Beg. V. Pkflps, 2 M. C. C. 240 ; Car. & M. 180 Digitized by Microsoft® 471 CRIMINAL l^AM— Murder, Assaults, dx. For Concealing Birth.]— Om an indictment for child murder, a oouviotion for concealing the birth cannot be supported. Heg. v. mcks, 2 M & Eob. 302. Sentence and Execution.] — By 24 & 25 Vict. c. 100, s. 2, upon cccnj conviction for murder the court sliaU pronounce sentence of death, and tlic same may be cavried into execution, and all ■other proeeedhlgs upon such sentence and in respect thereof may ie had and tahen, in the same manner in all respects as sentence of death might have been pronounced and carried into ejsecutimi, and all otlier proceedings thereupon and in respect thereof might have been had and taken, before the passing of this act, upon a con- cietion for any other felony for which the pnsoner might have been sentenced to suffer death as a felon. By s. 3, the body of every person executed for murder shall be buHed within the precincts of tlie prison in which he shall have been last con- fined after conviction, and the sentence of the court shall so direct. By 31 & 32 Yict. c. 24, capital punishment for murder is to be carried out within the prison walls. Sentence of Death — Sentence for another Offence.] — A man upon whom sentence of death has passed ought not, while under that sentence, to be brought up to receive judgment for another felony, although he was under that sentence when he was tried for the other felony, and did not plead his prior attainder. Rex t. Brady, R. & E. C. C. 268. Sentence — Form of.] — The time and place of the execution of a convicted felon form no part of the sentence. Hex v. Doyle, 1 Leach, C. C. 67. A judge might, if he saw fit, have ordered a pei'son convicted of murder to be executed immediately, or at any time within 48 hours after the conviction, as he might have done in any other capital felony. Bex v. Wyatt, R. & R. C. C. 230. It was not essential to award the day of execu- tion in the sentence, the 25 Geo. 2, c. 37, being in that respect only directory ; and if a wrong day was awarded, it would not vitiate the sentence, if the mistake was discovered and set right during the assizes. lb. The bodies of executed murderers were by the common law at the king's disposal, and therefore the court could not direct them to be hung in chains. Bex v. Hall, 1 Leach, C. C. 21. Quasre, whether on passing sentence of death on a conviction for murder, the award of dissec- tion and anatomizing, in pursuance of 25 Geo. 3, c. 37, was an essantial part of the sentence to be pronounced by the judge. Bex v. Fletcher, E. & K. C. C. 58. The omission of it might be remedied by the judge going again into court after adjourn- ment, from his lodgings, and ordering the prisoner to be again brought up, and then passing the proper judgment, as the sentence might be corrected or altered at any time during the assizes. lb, Secorded.] — Sentence of death might under 6 & 7 Will. 4, c. 30, be recorded against a person convicted of murder M. & Rob. 381. 472 V. Sogg, 2 Digitized by Microsoft® Habeas Corpus — Certiorari — Time.]— On a conviction for murder, in which the prisoners were brought up by habeas corpus, and the record by certiorari, the court gave the. prisoners three days' time to examine the record and in- struct counsel to shew cause why execution should not be awarded against them. Be.c v Garside, 4 N. & M. 33 ; 2 A. & E. 266. The attorney-general is entitled, as of course, to a habeas corpus and certiorari, to bring up a prisoner and the record of his conviction in case of felony. lb. Pleas why Sentence should not pass.] — A proclamation promising a pardon cannot be pleaded as a pardon. lb. But where such proclamation had been made, the court, in their discretion, deferred the award- ing of execution upon the sentence, until the prisoner should have had time to apply to the secretary of state for a pardon, according to the terms of the proclamation. lb. Semble, that a pardon after judgment may be pleaded ore tenus, and in bar of execution ; and there may be a demurrer to such a plea ore tenus. Jb. Where a woman who had been condemned to death did not, when called upon to say why execution should not be done upon her, plead her pregnancy, the court would not permit that question to be formally inquired into, at the suggestion of her counsel that she was in fact pregnant. Beg. v. Hunt, 2 Cox, C. C. 261. Sheriff — Jurisdiction of Queen's Bench over.] — The court of King's Bench has authority to order the sheriff of any county, or the marshal of the court, to carry into execution a sentence of death, pronounced by a judge under a com- mission of oyer and terminer and general gaol delivery. Beg. v. Garside, 4 N. & M. 33 ; 2 A. ' & E. 266. Duty of.] — ^A sheriff is not bound, upon service of a copy of the calendar of prisoners signed by a justice of gaol delivery at the assizes, to execute prisonera against whom sentence of death has been passed, unless such prisoners are in his legal custody. Bex v. Antrobus, 4 N. & M. 565 ; 2 A. & E. 798 ; 1 H. & W. 96 ; 6 0. & P. 784. Where the sheriff has the custody of a prisoner, the judgment of the court passing sentence of death upon him is, without any warrant or" copy of the calendar, sufficient to authorize and require the sheriff to do execution ; the copy of the calendar signed by the judge is a mere memorial. lb. 8. Conspiring ob Soliciting to Commit MUEDBB. Statute,]— By 24 & 25 Viet. c. 100, s. 4, all persons who shall conspire, confederate and agree to murder any person, whether he be a subject of her Majesty or not, and whether he he within the Queen's dominions or not, and whoso- ever shall solicit, encourage, persuade, or en- deavour to persuade, or shall propose to any l)erson to murder any other person, whether he 473 CEIMINAL IjAW— Murder, Assaults, dec. 474 be a subject of her- Majesty or not, and whether he be witliin the Qtieen's dominions or not, shall be guilty of a misdemeanor, and, heiiig con- noted thereof, shall be liable, at the discretion of the court, to be hept in penal sermtude for any term not more than ten and not less than five years (27 & 28 Vict. ^. iT), or to be im- prisoned for aim) term not exceeding two years, with or without hard labour. "What is — Publication in Newspaper.]— M. was indicted under 21 & 25 Vict. c. 100, s. 4. The encouragement and endeavour to persuade to murder, proved at the trial, were the publica- tion and circulation by him of an article, written in German, in a newspaper published in that language in London, exulting in the recent murder of the Emperor of Russia, and com- mending it as an example to revolutionists throughout the world. The jury were directed that if they thought that by the publication of the article M. did intend to, and did, encourage or endeavour to persuade any person to murder any other person, whether a subject of hei; Majesty or not, and whether within the Queen's dominions or not, and that such encouragement and endeavouring to persuade was the natural and reasonable effect of the article, they should find him guilty : — Held, that such a, direction was correct, and that the publication and cir- culation of a newspaper article might be an encouragement, or endeavour to persuade to murder, within s. 4 of 24 & 25 Vict. c. 100, although not addressed to any person in par- ticular. Reg. V. Most, 7 Q. B. D. 244 ; 50 L. J., M. C. 113 ; 44 L. T. 823 ; 29 W. E. 758 ; 45 J. P. 696 ; 14 Cox, C. C. 583. By Letter not received by Addressee.] — The prisoner was indicted under 24 & 25 Vict, c. 100, s. 4, for that he " did solicit H. to murder K.," and in a second count for that he "did endeavour to persuade H. to murder K." The . prisoner wrote and posted a letter addressed to H., in which he requested H. to murder K. The letter fell by accident into the hands of a third person, and never reached H. : — Held, that the evidence would not sustain a conviction on cither of the counts. Reg. v. Fox, 19 W. E. 109. Cp. Reg. V. Ransford, 31 L. T. 488. Evidence — Attempt to Murder another Per- son.] — Evidence that A. was privy to a plot to murder B. by explosive machines, is sufficient to go to the jury on counts charging A. with the murder of C. (accidentally killed by the ex- plosion), and with conspiring to murder him. Ileg. v. Bernard, 1 F. &. F. 240. Admissibility of letters found on Prisoner.]— At a period of the trial when it had been proved that the grenades by which the death in question had been caused had been ordered by A. ; but when there was no evidence to connect A. with the prisoner, it was proved that a letter in A.'s handwriting, bearing a memorandum in the hand of the prisoner, was found at his residence after his arrest upon the present charge : — Held, that such letter was admissible against him, not upon the ground that A. was a co-conspirator, but upon the gi'ound that it was found in the possession of the prisoner, and was relevant to this inquiry. lb. Conspiracy to Commit Murder.] - CONSPIBACT. 9. Attempts to Mubdee. a. By administering' Poison. Statute.]— By 24 & 25 Vict. c. 100, s. 11, who- soever shall administer to, or -coMse to be ad- ministered to, or to be talien by any person, any poison or otlier destructive thmg, or shall by any means whatsoever wound or cause any grievous bodily harm to any person, with intent in any of the eases aforesaid to commit murder, shall be guilty fif felony , and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confine- ment. (^Former enactment, 7 Will. 4 & 1 Vict, c. 85, s. 2.) And by s. 14, whosoever shall attempt to ad- minister to, or shall attempt to cause to be administered to, or to be tahen by any person, any poison or other destructive thing, with intent to commit murder, shall, whether any bodily injury be effected or not, be guilty of felony. (JPumish- ment as in last section. Former enactments, 9 Geo. 4, c. 31, s. 11, and 7 Will. 4 & 1 Vict. c. 85, s. 3.) What is an Administeringf.] — It is not an administering of poison unless the poison is taken into the stomach. Therefore, where A. was indicted for administering poison to a woman, with intent to murder her ; and the proof was that he gave her a piece of cake which contained arsenic and sulphate of copper, which she put into her mouth, but which she spit out again without having swallowed any part of it : — Held, that it was not sufficient to convict. Rex V. CaAman, Car. C. L. 237: 1 M. C C 114. If a servant put poison into a coffee-pot which contained coffee, and when her mistress came down to breakfast, the servant told the mistress that she had put the coffee-pot there for her (the mistress's) breakfast, and the mistress drank the poisoned coffee — this was a causing the poison to be taken, within 9 Geo. 4, c. 31, s. 11. Rex V. Barley, 4 C. & P. 369. If A. sent poison intending it for B., and with intent to kill B., and it came into the possession of C, who took it, A. might be indicted on 9 Geo. 4, c. 31, s. 11, for administering it to C. Rex v. Levyis, 6 C. & P. 161. The delivery of poison to an agent, with direc- tions to him to cause it to be administered to an- other under such circumstances that, if adminis- tered, the agent would be the sole principal felon, was not an attempt to administer poison within the 7 Will. 4 & 1 Vict. c. 85, s. 3. Reg. v. Williams, 1 C. & K. 589 ; 1 Den. C. C. 39. A person who at the same time administers a poison and its antidote does not administer poison (per Aldei-son). Reg. v. Cluderay, 1 Den. C. C. 615 ; 2 C. & K. 907 ; T. & M. 219 : 4 Cox, C. C. 84; 19 L. J., M. C. 119 ; 14 Jur. 71. Putting poison in a place where it is likely to be found and taken, if done with an intent to murder, was an attempt to administer poison Digitized by Microsoft® CKIMINAL LAW — Murder, Assaults, dc. 475 witMu 7 Will. 4 & 1 Vict. c. 85, s. 3. Beg. v. Dale, 6 Cox, C. G. 14. Poison — ^What is.] — Administering unbroken cooculus indicus berries to an infant was ad- ministering poison within 7 Will. 4 & 1 Yiot. c. 85, s. 2, althougli it was proved that the berries were not poisonous till the exterior or pod was broken, and that by reason of the weakness of the infant's digestive organs, the berries were innocuous. Reg. v. Clvideray, 1 Den. C. C. 515 ; 2 C. & K. 907 ; T. & M. 219 ; 4 Cox, C. C. 84 ; 19 L. J., M. C. 119 J 14 Jur. 71. Indictment.] — A prisoner was indicted for mixing sponge with milk, and administering it with intent to poison. The indictment was in- sufficient, because it did not aver that the sponge was of a deleterious or a poisonous nature. iJce V-. PowUs, 4 C. & P. 571. Evidence.] — ^An indictment for causiug poison to be taken by A. with intent to murder A. is not sustained by evidence shewing that the poison, although taken by A., was intended for another person. Reg. v. Ryan, 2 M. & Bob. 213. On an indictment for administering poison with intent to murder, the police having, in ■ consequence of certain information, found the bottle containing the poison in a place used by the prisoner, are bound to disclose from whom they had the information. Beg. v. Richardson, 3 F. & F. 693. b. By Shooting, "Wounding, Drowning, Suffo- cating or Strangling. Statute.]— By 24 & 25 Vict. c. 100, s. 14, who- soever shall shoot at any person, or shall, ly drawing a trigger or in any other manner attempt to discharge any liind of loaded arins at any person, or shall attempt to droion, suffocate or strangle any person, with intent, in any of the eases aforesaid, to commit murder, sltall, whether any bodily injwy le effected or not, le guilty of felony, and, being convicted thereof, shall be liable at the discretion of the court, to be hept in pmal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to be im- prisoned foi any term not exceeding two years, with or without hard labour, and with or with- out solitary confinement. {Former enactment, 7 Will. 4 & 1 Vict. c. 85, s. 3.) And by s. 11, whosoever sliall, by any means whatsoever, wound or cause any grievous bodily harm to any person, ivith intent to commit murder, shall be guilty of felony. {Punishment as in last section. Former provisions, 9 Geo. 4, c. 81, ss. 11, 12, and 7 Will. 4 & 1 Vict. c. 85, B. 2.) Attempt to Discharge rirearms.]— B. drew a loaded pistol from his pocket for the purpose ot murdering S., but before he had time to do any- thing further in pursuance of his purpose the pistol was snatched out of his hand, and he was at once arrested :— Held, that the offence was not within s. 15 of 24 & 25 Vict. c. 100, under which section the prisoner had been tried and con- victed. B,g. V. Srown, lOQ.^.^. 381 ; 52 L J., M. C; 49 ; 48 L. T. 270 ; 31 W. B. 460 ; 47 J. P. 327 ; 15 Cox, C. C. 199. Semble, that the ofience was withm s. 14 of Digitized by Microsoft® 476 24 & 25 Vict. c. 100. Reg. v. St. George (9 0. & P. 483) and Beg. v. Lewis (9 C. & P. 523) doubted. If a person, intending to shoot another, put his finger on the trigger of a loaded pistol, but was prevented fi-om pulling the trigger, this was not an attempt to discharge loaded arms by drawing a trigger, or in any other manner, within 7 Will. 4 & 1 Vict. 0. 85, ss. 3, 4, as the words, "in any other manner," in that statute, meant something analogous to drawing the trigger, which was the proximate cause of the loaded arms going off. Reg. V. St. George, 9 0. & P. 483. The applying a lighted match to a loaded match-lock gun, or the striking the percussion cap of a percussion gun, was a sufficient attempt within these enactments. lb. An indictment on 7 Will. 4 & 1 Vict. c. 85, ss. 3 and 4, charged the prisoner with attempt- ing to discharge at the prosecutor a certain blunderbuss, loaded with gunpowder, and divers leaden shots. The prisoner on a refusal by the prosecutor to give up some title-deeds, addressed him in these words, "Then you are a dead man," and immediately unfolded a greatcoat which he had on his arm, and took out a blunder- buss, but was not able to raise it to his shoulder, or point it directly at the prosecutor, before he was seized. The blunderbuss was found to be very heavily loaded, but the flint had dropped out, and was discovered between the lining of the great coat : — Held, that the evidence was not sufficient to sustain the charge in the in- dictment. Beg. V. Lewis, 9 C. & P. 523. What are Loaded Arms.] — By 24 & 25 Vict. c. 100, s. 19, any gim, pistol, or other arms which shaXl be loaded in the barrel with gmvpoiuder or any other explosive substance, and ball, shot, slug or other destmcti/Be material, shall be deemed to be loaded arms within the meaning of this act, although the attempt to discharge tlie same may fail from want of proper 2)riming, or from any other cause. G. was charged with a felonious attempt to shoot. He was proved to have presented a pistol at a man, and to have pulled the trigger, but the pistol did not go oflc. On examining the pistol, it was found that, if it ever had been primed, it would have been impossible for the priming to have fallen out, and the pistol must have gone off : — Held, that there was no, case to go to the jury. Beg. v. Gamble, 10 Cox, 0. C. 545. Before this Enactment.] — A rifle which was loaded, but which for want of proper priming would not go ofE, was not a loaded arm within the 7 Will. 4 & 1 Vict. c. 85, ». 3 ; and the point- ing a rifle thus circumstanced at a person, and pulling the trigger of it, whereby the cock and hammer were thrown, and the pan opened, did not warrant a conviction of felony under s. 3. Reg. V. James, 1 C. & K. 530. In order to constitute the offence of attempting to discharge loaded fire-arms, within 43 Geo. 3, c. 58, they must have been so loaded as to be capable of doing the mischief intended. Rex v. Cirr, B. & E. C. C. 377 ; S. P., Rex v. Whitley, 1 Lewin, 0. C. 123. ;, ^ If a pistol was loaded with gunpowder and ball, but its touch-hole was plugged, so that it could not by possibility be fired, this was not loaded arms, within 9 Geo. 4, c. 31, ss. 11, 12. Bex V. Harris, 5 C. & P. 159. 477 CEIMINAL IjAW— Murder, Assaults, dec. 478 Where on an indictment on 43 Geo. 3, c. 58, for maliciously shooting at a person, it appeared that the instrument was fired so near, and in such a direction, as to be likely to kill or do other grievous bodily harm to such person, and -with an intent that it should do so, the case was within that act, although it was loaded with powder and paper only. lUx v. Kitchen, K. & R. C. C. 95. A. sent a tin box to B., containing three pounds of gunpowder, and two detonators, which were intended to ignite the gunpowder when any person opened the box, and so destroy the person who opened it : — Held, that this was not an attempt to discharge loaded arms at B. within 9 Geo. i, c. 31, ss. 11, 12. Bex v. Mount- ford., 7 C. & P. 242 ; 1 M. C. C. 441. What sufficient Evidence.] — The fact of firing a gun into- a room of A.'s house, with intent to shoot A., the prisoner supposing him to be in the room, will not support a charge of shooting at A., if he is not shewn to be in the room, or within reach of the shot. Bex v. Lovel, 2 M. & Bob. 39. Intention to Shoot different Person.] — ^A per- son intending to shoot at and kill L., shot at H., mistaking him for L., but did not kill H. On an indictment for shooting at H., with intent to murder H., the judge left it to the jury to say whether there was an intent to murder H. ; but he laid it down, that the law infers that a party intends to do that which is the immediate and necessary effect of the act which he commits. The jury found that the prisoner did not intend to do any harm to H., and the judge directed an acquittal to be recorded. Hex v. Molt, 7 C. & P. 519. An indictment under 9 Geo. 4, o. 31, s. 12, for maliciously shooting at A., was supported, if he was struck with the shot, though the gun was aimed at a different person. Bex v. Jarvis, 2 M. & Bob. 40. If intending to murder A., and supposing B. to be A., a person shoots at and wounds B., he may be convicted of wounding B., with intent to. murder him. Beg. v. Smith, Dears. C. C. 559 : 25 L. J., M. C. 29 ; 1 Jur., N. S. 1116. Intention to Murder must be Present.] — On an indictment on 7 Will. 4 & 1 Vict. c. 85, s. 2, for the offence of inflicting an inju^ dangerous to life, with intent to murder, the jury ought not to convict unless satisfied that the prisoner had in his mind a positive intention to murder ; and it is not sufficient that it would have been a case of murder if death had ensued. Beq. v. Cruse, 8 C. & P. 541. What is a Shooting.]— A. had the barrels of a double-barrelled percussion gun detached from the stock and lock, and by striking the percus- sion cap which was on the nipple of one of the baiTels, he fired it and shot B. : — Held, to be within 9 Geo. 4, c. 31, ss. 11, 12. Bex v. Coates, 6 C. & P. 394. Gamekeepers being in a preserve between twelve and one at night, heard the firing of two guns, and proceeding in the direction of the sound, met with two persons who neither had guns nor game upon them, nor were either found near them. The gamekeepers immediately seized them without calling on them to surren- der, or in any way notifying to them who they were. The keepers were wounded, one of them seriously : — Held, that the prisoner who wounded them might under the circumstances, and taking into consideration the situation and the time of the night, be properly convicted under 9 Geo. 4, c. 31, ss. 11, 12. Bex v. Taylor, 7 C. & P. 266. Indictment.] — Upon the trial of an indict- ment for shooting, with intent to murder a person unknown, it must be proved that there was an intent on the part of the prisoner to murder some particular person. Beg. v. Lalle- ment, 6 Cox, C. C. 204. In an indictment for maliciously shooting, under 7 Will. 4 & 1 Vict. c. 85, s. 4, it was suf- ficient to say, "with a certain loaded gun," without going on to state with what it was loaded. Beg. v. Cox, 3 Cox, C. C. 58. If an indictment for shooting another, with intent to murder, in all the counts avers that the pistol was loaded with powder and a leaden bullet, it must appear that the pistol was loaded with a bullet, or the prisoner will be entitled to an acquittal. Bex v. Hughes, 5 0. & P. 126, See Beg. v. Oxford, 9 C. & P. 525. On an indictment for maliciously shooting, one act of shooting may be laid in one set of counts, as being with intent to murder H. ; and in an- other set of counts as with intent to mui'der L, Bex V. Holt, 7 C. & P. 519. An indictment which charges that the prisoner feloniously assaulted J. H., and, by feloniously "drawing the trigger of a pistol, loaded with gunpowder and a leaden bullet, then and there feloniously and maliciously did attempt to dis- charge the said pistol at J. H.," with intent to murder him, is good, without stating that " the said pistol " was " so loaded as aforesaid." Beg. V. Baher, 1 C. & K. 254. Evidence.] — Upon an indictment for malici- ously shooting, it appeared that there were two shootings ; but it being questionable whether the first shooting was by accident or design : — Held, that proof of the prisoner having intention- ally shot at the person the second time, was evidence to shew that the first was wilful, Bex V. Yohe, R. & R. 0. C. 531. Evidence of a wound having been made by the contents of a pistol, although no ball was foimd, and of its having made a loud report, with reference to its size, is sufficient to go to a jury of its having been loaded with ball. Bex V. Weston, 1 Leach, C. C. 247. 0. By the Explosion of Ounpowder, &o. Statute.]— By 24 & 25 Vict. c. 100, s. 12, who- soeiier,l)y the explosion of gunpowder or otlter ex2)losive suistance, shall destroy or damage amy Imilding with intent to commit murder, shall he guilty of felony, and, leing convicted tliereof, shall he liaUe, at the discretion of the court, to be liept in jyewal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to le imprisoned for any term not ex- ceeding two years, with or without hard labour and with or imthout solitary Bonjinement. {Former enactment, 9 & 10 Vict. c. 25, s. 2.) Evidence of Character of Explosive.] — Upon a charge of murdering a person named by means of explosive grenades, evidence of the death Digitized by Microsoft® 479 CRIMINAL -LA^— Murder, Assaults, dtc. and wounds suffered by others at the same time IS admissible for the purpose of proving the character of the grenades. Reg. v. Bernard 1 F. & F. 240, ' Evidence of Maker connected with Prisoner 1 —A witness being called to prove that he manu- factured certain gi-enades, by which the death m question had been caused :— Held, that the name of the person who gave the order for them might be asked as a fact in the transaction, even though he had not then been shewn to be con- nected with the prisoner. Ih. d. By Setting Fire to or Casting Away Ships. Statute.]— By 24 & 25 Vict. c. 100, s. 13, wlioso- ecer shall set fire to any sMj) or vessel, or any part thereof, or any part of the tackle, apparel, or fm-niture thereof, or any goods or chattels ieing therein, or shall cast away or destroy any skip or ressel, ivith intent in any of such cases to commit murder, shall ie guilty of felony, and leing convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servi- tude for life, or for any term not less tlian five years (27 & 28 Vict. c. 47), or to be imprisoned :for any term not exceeding two years, with or without hard labour, and with or without soli- tary confinement. (^Former enaetment, 7 Will. 4 & 1 Vict. c. 89, s. 4.) B. Preventing Bescue from Shipwreck. Statute.]— By 24 & 25 Vict. o. 100, s. 17, who- soever shall unlawfully and maliciously jnrvent or impede any person, being on board of or /laving (luitted any ship or vessel which shall be in distress or wrecked, stranded, or cast on shore, in his endeavour to save his life, or sliall unlawfully and maliciously prevent or impede any person in his endeavour to save the life of any such person as in this section first aforesaid, shall be guilty of felony. (^Punishment same as in last section. Former provision, 7 Will. 4 & 1 Vict. c. 89, s. 7.) 480 B^r^T"^^ ^'^\ 'S*""* *° "^'^i-dei' the child. Beg. V. Benshaw, 2 Cox, C. C. 385 ; 11 Jur. filoi Violence ] — Where a woman jumps out of of her husband, and sustains dangerous bodilv mjuiy, the husband cannot be convicted of an attempt to murder, unless he intended by his conduct to make her jump out of the window. Beg. V. Donovan, 4 Cox, C. C. 400. ASSAULT, BATTERY, WOUNDING, 4-c. Shooting, Woundhig, ^c, with Intent to Maim, t^^c. Admi7iistering Chloroform, to commit In- dictable Offence, 487. Admiiiistering Poison, Sfc, with Intent to Endanger Life, Aggrieve or Annov. 487. Injuring Persons by Explosive or Corrosive tiubstan^es, 488. By Spring Guns, 489. Injuring Persons by Wanton or Furious Driving, 489. lUtreatmcnt of Helpless Persons, 490. False Imprisonment, 493. f. By other Ileans. Statute.]— By 24 & 25 Vict. o. 100, s. 15, who soever sliall, by any means other than those 1. specified in any of the preceding sections of this act, attempt to commit murder, shall be guilty of felony. (Punishment same as in the last but one preceding section.") Common Assaults, 494. On Clergymen or Ministers of Keligion, 498. ' On Magistrates or other Persons pre- serving Wrecks, 498. On Peace and other Officers in Execu- tion of Duty, 499. On Seamen, Keelmen, or Casters, 501. On Obstructing Sale of Grain or its Free Passage, 502. Arising from Trade Combinations or Conspiracies, 602. Occasioning Actual Bodily Harm, 502. Indictment and Evidence, 602. Punishment, 503. Costs of Prosecution, 503. Summary Convictions.. i. In what Cases, 604. ii. Hearing and Certificate, 506. 10. Trial, 510. i. I. Shooting, Wounding, &c., with Intent TO Maim, &o. Suicide not within this Act.] — An attempt to commit suicide is not an attempt to commit murder within 24 & 25 Vict. c. 100, and is not merged in any of the felonious attempts to com- mit murder made punishable by that act, but remains a misdemeanor at common law triable by the court of quarter sessions. Beg. v. Burgess, L. & C. 258 ; 9 Cox, C. C. 247 ; 82 L. J., M. C. 55 ; 7 L. T. 472 ; 11 W. E. 96. Abandonment of ChUd.] — ^A female abandoned her infant child, having first deposited it in the bottom of a dry ditch among some nettles, by which "it was not hurt ; and, in consequence of being shortly afterwards found by other persons, had not experienced any inconvenience from the exposure : — Held, that she could not be convicted I Vict. c. 85, e. Digitized by Microsoft® statute.]— By 24 & 25 Vict. o. 100, s. 18, who- soever shall unlawfully and maliciously, by any means whatsoever, wound or cause any grievmis bodily harm to any person, or shoot at any per- son, or, by drawing a trigger or in any other manner, attempt to discharge any hind of loaded arms at any person, with intent, in any of the cases aforesaid, to maim, disfigure or disable any person, or to do some other grievous bodily liarvi to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and, being convicted thereof, sliall be liable, at the discre- tion of the court, to be kept in penal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard laboii/r, and with or without solitary eon- (Previous provision, 7 Will. 4 & 1 Vict. c. 85, fl. 4.) 481 CEIMINAL LAW — Murder, Assaults, dc. 482 As to wliat are loaded arms, see s. 19, and aTite, coi. 476. By s. 20, wliosoever shall unlawfully and ina- lioiously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and, beitig coiwicted thereof, shall be liable, at the discretion of the couH, to be kept in penal servitude for the term of Jive years (27 & 28 Viot. c. 47), or to be im- pirisoned for any term, not exeeedwig two years, 'With or without Mrd. labour. (^Former provi- sion, 14 & 15 Viot. c. 19, o. 4.) Shooting — Pistol not going off.] — G. was charged with a felonious attempt to shoot. He was proved to have presented a pistol at a man, and to have pulled the trigger, but the pistol did not go off. On examining the pistol, it was found that, if it ever had been primed, it would have been impossible for the priming to fall out, and the pistol must have gone ofE : — Held, that there was no case to go to the jury. Beg. V. Gamble, 10 Cox, C. C. 545. Cutting — Malice.] — On an indictment for maliciously cutting, malice against the individual cut is not essential, general malice is sufficient. Rex v. Hunt, 1 M. C. C. 93. The question is not what the wound is, but what wound was intended. lb. Where a party having a deadly weapon law- fully in his possession, in his own defence, but without having previously retreated as far as possible, cut a person who was assaulting, he was guilty of felony, under 7 Will. 4 & 1 Vict. c. 85, s. 4, if he intended grievous bodily harm. Meg. V. Odgers, 2 M. & Rob. 479. What is.] — Cutting a female child's private parts, so as to enlarge them for the time, was considered as doing her grievous bodily harm, within 43 Geo. 3, c. 58, and done with that intent, although the hymen was not injured, the incision was not deep, and the wound eventually was not dangerous. Bex v. Cox, E. & E. C. C. 362 ; 1 Leach, C. C. 71. A striking over the face and head with the sharp or claw part of a hammer was a suffi- cient cutting, within 43 Geo. 3, c. 58. Bex v. Atkinson, E. & E. C. C. 104. To Resist Apprehension.] — ^On an indict- ment for cutting, it appeared that the prisoner was seen in the night entering an outhouse with intent to commit a felony, by a person who went and informed the prosecutor of it. The latter in about a quarter of an hour went in search of the prisoner to apprehend him. The prisoner had left the prosecutor's premises, and was found in a neighbouring garden, crouched down under a tree, with a drawn sword in his hand. The prosecutor apprehended the prisoner, who cut and wounded him. It was objected that the prosecutor had no right to apprehend the pri- soner, and that if death had ensued, it would have been manslaughter only. The prisoner was convicted, and the judges held the conviction right. Bex v. Howorth, Car. Supp. 231 : 1 M. C. C. 207. Whether, if Death ensues, it would be Murder or not.] — On a charge of feloniously cutting, with intent to do grievous bodily harm. it was immaterial whether, if death had ensued, the crime would have been murder or man- slaughter. Beg. V. NwholU, 9 C. & P. 267. Wounding — ^What is.] — To constitute a wound it is necessary that there should be a separation of the whole skin ; and a separation of the cuticle or upper skin only is not sufficient. Beg. V. MLoughlin, 8 C. & P. 635. In criminal cases, the definition of a wound is, an injury to the person by which the skin is broken. Moriarty v. Brooks, 6 C. & P. 684 ; S. P., Bex V. Beekett, 1 M. & Eob. 526. A blow given with a hammer on the face, which broke the lower jaw In two places ; the skin was broken'internally,though not externally, and there was not much blood ; was a wounding within 7 Will. 4 & 1 Vict. u. 85, s. 4. Beg. v. Smith, 8 C. & P. 173. A. asked permission at the house of B. to go and take some ashes, which he was allowed to do ; but as he was coming out B.'s apprentice saw a copper tea-kettle among the ashes in A.'s basket, and told B. B. laid hold of A. to secure him, on the charge of stealing the tea-kettle, and in a souffle A. and B. fell, and A. cut B. With a knife : — Held, to be a wounding within 7 Will. 4 & 1 Vict. c. 85, s. 4, provided that the jury was satisfied that A. had stolen the kettle, as B. had then a right to apprehend him. Beg. v. Price, 8 C. & P. 282. Evidence of a violent kick on the private parts of a woman, which caused a flow of blood mingled with urine, for some time afterwards, was not a wounding within 7 Will. 4 & 1 Viot. o. 85, s. 4, no proof being given as to the precise point whence the blood originally came. Beg. v. Janes, 3 Cox, C. C. 441. A rupture of the lining membrane of the urethra, followed by a small flow, such rupture being caused by a kick on the private parts of the prosecutor, is a wounding within 7 Will. 4 & 1 Viot. c. 85, s. 4. Reg. v. WaltliMin, 3 Cox, C. C. 442. Must have heen direct.] — To constitute the ofEence of wounding with intent to do grievous bodily harm, under 7 Will. 4 & 1 Vict, c. 85, s. 4, the wound must be direct, and there- fore an injury occasioned by the prosecutor fall- ing on some iron trams in consequence of a blow from the prisoner, was not within that statute. Beg. V. Spooner, 6 Cox, C. C. 392. Whether, if Death ensues, it would he Murder or not.] — In a case of wounding with intent to do grievous bodily harm, it is not essential that, if death had ensued, the offence of the prisoner should be murder ; therefore, if it appears that, had death ensued, the ofience would be manslaughter only, this is no ground of acquittal of the felony. Beg. v. Grijjiths, 8 C. & P. 248 ; 2 M. C. C. 40. Character of Instrument.] — On a,n indict- ment for wounding, the jury, upon the question whether, if death had ensued, the oflEenoe would have been murder, should consider whether the instrument employed was, in its ordinary use, likely to cause death ; or if it is an instrument not likely, under ordinary circumstances, to cause death, whether it was used in such an extraordinary manner as to make it likely^to Digitized by Microsoft® 483 CEIMINAL I.AW— Murder, Assaults, dc. cause death, either by continual blows or other- wise. Mex V. Howlett, 7 C. & P. 274. What Intent.]— A broker and his man having levied a distress for rent, the man left in possession was ejected. The owner of the goods was not in the room at the time of the levy, and it was not proved that he was a party to the turning out of the man, or that he knew of the distress being levied, but on the broker and his assistants breaking open the outer door to re- enter, the prisoner struck one of the assistants with an axe on the forehead :— Held, that, under these circumstances, the prisoner must at least be found guilty of an assault ; and also, that, although he might be found guilty of wounding, with intent to do grievous bodily harm, yet he •could not be found guilty of wounding, with intent to maim and disable. Req. v. Sullivan Car. & M. 209. ' What was, under the Repealed Statute of 9 Geo. 4, c. 31, ss. 11, 13.]— Brealdng a person's coUar bone, and braising him, was not a wound- ing within 9 Geo. 4, c. 31, s. 12. Rex v. Wood, 4 C. & P. 381. ■ If a person, for the purpose of accomplishing a robbery, wounded by means of kicking the shins of the party whom he was endeavouring to rob, he was punishable under 9 Geo. 4, o. 31, s. 12, if the jury found that his intent was either to disable or do grievous bodily harm. Rex v. ShadboU, 5 0. & P. 504. Biting ofE the end of a person's nose, was not avvounding within 9 Geo. 4, c. 31, s. 12; nor was biting off a joint fi-om a person's finger ; as the statute was intended only to apply to wounding produced by some instrument, and not by the iiands or teeth. Mex v. Harris, '7 C. & P. 446 ; & P., Jenning's case, 2 Lewin, C. C. 130. But a wound from a kick with a shoe was within 9 Geo. 4, c. 31, s. 12. Rex v. Briqqs, 1 M. C. C. 318 ; 1 Lewin, C. C. 61. The prisoner struck the prosecutor on the side of his hat with an air-gun, with great force, by which the prosecutor was wounded, but the wound was made by the violence with which the hat was struck, the weapon used by the prisoner never coming in contact with the head of the prosecutor : — Held, a wounding within 9 Geo. 4, c. 31, ss. 11 & 12. Rex v. Slieard, 7 C. & P. 846. Maliciously throwing oil of vitriol over the prosecutor's face, with intent to disfigure, and so wounding his face, was not a wounding within 9 Geo. 4, c. 31, s. 12. Rex v. Marrow, 1 M. C. C. 456 ; S. P., HenslialVs case, 2 Lewin, G. G. 135. Inflicting a wound on a person by throwing a sledge-hammer at him, was a wounding within 9 Geo. 4, c. 31, ss. 11, 12, although the sledge- hammer, from being blunt, was not an instru- ment calculated to inflict a wound. Rex v. Withers, 4 C. & P. 446 ; 1 M. C. C. 294. If a person struck another with a bludgeon, and broke the skin and drew blood, this was a sufficient wounding within 9 Geo. 4, c. 31, ss. 11, 12. Rex V. PayTie, 4 C. & P. 558. Indictment.] — On an indictment for wounding with intent, the actual intent must be proved. Reg. v. Cox, 1 F. & P. 664. A party may be guilty of unlawfully wound- ing though there is no intent to wound, if the weapon used is calculated to wound, and known to be such. lb. Digitized by Microsoft® 484 mJi^Hp? i^'^'<=.*'™"t for wounding with intent to muider, the instrument or means by which the ZIZJ"^ 'f '°''f ""'^^ ^°' be stated, and, if stated do not confine the prosecutor to prove a wound by such means. Rex v. Rnggs, 1 M. C. C. 318 ; 1 Lewm, 0. C, 61. An indictment for cutting and wounding, which chained the offence to have been com- mitted " feloniously, wilfully and maUoiously," was bad, the words of 9 Geo. 4, c. 31, ss, 11 & 12, being « unlawfully and maliciously." Rex v. Ryan] 7 C. & P. 854 ; 2 M. G. 0. 15. Grievous Bodily Harm-What is.]-A woman left her infant child, ou a cold wet day, exposed m an open field, intending that it should die. It was tound there after some hours, nearly dead tromicougestion of the lungs and heart, the efCects ot the exposure. By care, however, the child was restored in a few hours, and there then re, mamed no bodily injuiy either to the lungs or heart, or otherwise :— Held, that a conviction under 7 Will. 4 & 1 Vict. c. 85, s. 2, for causing a bodily injury dangerous to life, could not be supported, as there was no lesion of any part of the organs of the child. Reg. v. era«,.Dears. & B. C. C. 903 ; 7 Cox, C. C. 326 : 26 L. J., M. C. 203 ; 3 Jur., N. S. 989. To constitute grievous bodily harm it is not necessary that the injury should be either perma- nent or dangerous ; if it is such as seriously to interfere with comfort or health, it is sufficient. Reg. V. Ashman, 1 F. & P. 88. Where a party strikes at A., and B., inter- posing, receives the blow, he cannot be convicted . of wounding with intent to do grievous bodily harm to B. The use of a deadly weapon is, not justifiable in repelling a common assault ; there must be the apprehension of serious bodily danger or of robbery, or some similar offence of violence. Reg. v. Hewlett, 1 F. & F. 91. The prisoner was the first, or almost the first, to leave the gallery of a theatre at the close of the performance ; he ran down the stairs, wil- fully put out the gas, and placed an iron bar across the doorway. This caused a panic among the persons when leaving the gallery, and several of them were seriously injured through the pressure of the crowd : — Held, that the prisoner was properly convicted of unlawfully and mali- ciously doing and inflicting grievous bodily harm within the meaning of 24 & 25 Vict. c. 100, s. 20. Reg. V. Martin, 8 Q. B. D. 54 ; 51 L. J., M. C. 36 ; 45 L. T. 444 ; 30 W. K. 106 ; 46 J. P. 228 ; 14 Cox, 0. C. 633. Aiming at another Person.] — A. was indicted for feloniously shooting at the prose- cutor, with intent to do grievous bodily harm to ,him. The jury found that he did not aim at the prosecutor, or at any one else in particular, but that he fired into a, gi-oup of persons, iatending generally to do grievous bodily harm, and so unlawfully wounded ;— Held, that he was guilty of the felony charged, and not merely of the misdemeanor of unlawfully wounding. Reg. v. Fretwell, L. & C. 443 ; 9 Cox, 0. C. 471 ; 33 L. J., M. C. 128 ; 10 Jur., N. S. 595 ; 10 L. T. 428 ; 12 W. E. 751. Intent to Resist Apprehension.]— On an in- dictment for cutting and maiming with intent to do grievous bodily harm, a prisoner may be convicted whose main and prin^pal intent was 485 CEIMINAL LAW— MwrcZer, Assaults, dc. 486 to prevent his lawful apprehension, or, in order to effect the latter intent, he also intended to murder, or do grievous bodily harm. Rex v. Gillow, 1 M. 0. C. 85 ; 1 Lewin, C. C. 57. See Bex V. Thompson, 1 M. C. C. 80 ; Bex v. Daris, 1 C. & P. 306. Notice of Purpose.] — The offence of ma- liciously cutting, with intent to resist lawful apprehension, is not committed where the party has no notice of the purpose of the officers. Bex V. Bichetts, 3 Camp. 68. By Prosecutor.] — A. asked permission to take some ashes from B.'s house : as A. was going away B. saw that A. had a kettle in the basket and laid hold of him ; in the scuffle A. and B. fell, and A. cut B. with a knife : — Held, a question for the jury whether A. stole the kettle, for in that case B. had a right to appre- hend him. Beg. v. Price, 8 C. & P. 282. It appeared that the prisoner was seen in the night entering an outhouse with intent to com- mit a felony by a person who told the prosecutor. The prosecutor went in search of the prisoner and found him in a neighbouring garden and apprehended him. On objection raised that the prosecutor had no right to apprehend the prisoner, held that the conviction was good. Bex V. Soworth, Car. Supp. 231 ; 1 M. C. C. 207. Apprehension by Prosecutor under magis- trates' Direction.] — A prisoner was indicted for cutting and maiming with intent to prevent his apprehension for an offence for which he was liable to be apprehended, to wit, for that he did violently assault and beat A, He was taken before the magistrates by the prosecutor, on a warrant directed to him for an assault on A., and ordered to find bail, which he refused to do, and whilst the commitment was being made out escaped. The prosecutor, by verbal directions of the magistrates, pursued the prisoner, and, in attempting to apprehend him, he was cut by him : — Held, well convicted, and that the offence was rightly described. Bex v. Williams, 1 M, C. C. 387. By Gamekeeper on Highway.] — A game- keeper, accompanied by his assistant, met four poachers on the highway, one carrying a gun, another a gun barrel, and the other two blud- geons. There had been previously two shots fired. The gamekeeper said to his assistant, " Mind the gun," and the assistant laid hold of it, and then the gamekeeper called to another person ; upon this three of the poachers knocked him down and stunned him, and when he came to himself he saw all of them near, and one said as they passed him, " D — n them, we have done them both," and one turned back and cut him on the left leg, and all then ran away. It was objected, first, that the wounding of the leg was the act of one alone, and there was no evidence to shew which of them it was ; secondly, that, from the expres- sions used, it was evident that both were thought to be dead, and there could be no intent to murder ; and thirdly, that the prisoners being on the highway, the gamekeeper and his assist- ant had no right to interfere with them. The prisoners were convicted, and the judges held the conviction right, Bex v. Warner, 5 C. & P. 525 ; 1 M. C. C. 380. Legality of Apprehension by Constable — No Warraut.]^A constable who had verbal direc- tions from the magistrates to apprehend all per- sons playing at thimblerig, attempted to appre- hend the prisoner and his companions playing at thimblerig in a public fair. The constable, with assistance, took one of the party ; but the prisoner and the rest rescued him and got off. In the evening of the same day the constable found the prisoner in a public-house, not having been able to find him before, and endeavoured to appre- hend him, stating it was for what he had been doing at the fair. He escaped into a privy, and the constable called the prosecutor to his assist- ance, and together they broke open the privy- door, and endeavoured to take him, who there- upon stabbed the prosecutor. A conviction for feloniously cutting and maiming was held wrong. Bex V. Garderier, 1 M. C. C. 390. A police-officer, having been assaulted by W., attempted, two hours afterwards, to take him into custody. W. resisted and wounded the officer : — Held, that the apprehension would not have been lawful, and that W. could not be con-' victed of wounding with intent to prevent his lawful apprehension. Beg. v. Wallier, 2 C. L. R. 485 ; Dears. 0. C. 358 ; 6 Cox, C. C. 371 ; 23 L. J., M. C. 123. A., a constable employed to watch a copse, seeing B. wrongfully carry away wood there- from, calls to him to stop, and on B.'s running away fires at and wounds him. B. had been frequently convicted summarily of the like offence, and by 7 & 8 Geo. 4, c. 29, s. 39, such stealing after two summary convictions is a felony. The fact of these convictions, as well as of their legal consequences, was wholly un- known to A. : — Held, that A. was rightly con- victed of wounding with intent to do grievous bodily harm. Beg. v. Dadson, 2 Den. C. C. 35 ; 3 C. & K. 148 ; T. & M. 385 ;^ Cox, C. C. 358 ; 20 L. J., M. C. 57 ; 14 Jur. 1051. Indictment.] — An indictment under 43 Geo. 3, c. 58, for cutting and maiming with intent to murder and disable, was not supported by evidence of a cutting with intent to produce a temporary disability in a pereon lawfully apprehending the prisoner until he could effect his own escape. Bex v. Boyce, 1 M. G. C. 29. In an indictment on 43 Geo. 3, c. 58, the intent laid in several counts was to murder, to disable, or to do some grievous bodily harm ; the intent found by the jury was to prevent being apprehended : — Held, that the conviction was bad, for that, if the intent was to prevent the lawful apprehension of the prisoner, it should be laid so. Bex v. Duffin, B,. & E. C. 0. 365 ; 1 Bast, P. C. 437. A conviction on an indictment for maliciously cutting a police officer, with intent to resist and prevent the arrest and detainer of a prisoner for a certain offence, for which he was liable by law to be apprehended and detained, viz., for com- mitting damage and injury upon certain plants and roots in a garden, is good. Bex v. i'rasei; 1 M. C. C. 419. Evidence.] — On an indictment for stab- bing, with intent to resist lawful apprehension, it must be shewn that the officer was either present or came armed with a warrant. Bex v. Dyson, 1 Stark. 246. Digitized by Microsoft® 487 ' CRIMINAL TuKW— Murder, Assaults, dc. 488 2. Administering Chlokofoem to commit Indictable Offence. Statute.]— By 24 & 25 Vict. c. 100, s. 22, ivho- aoi'.rer shall unlawfully apply or administer to, or causa to be taken iy, or attempt to apply or administer to, or attempt to cause to be adminis- tered to or taken hy, any person, any chloro- form, laudanum or other stupefyina or orer- 2}owering drug, matter or thing, imth intent in any of such cases thereby to enable himself of any other person to commit, or with intent in any of siwh cases thereby to assist any other 2)erson in committing, any indirfiihle offence, shall be guilty of felony, and, beitig com-icfed thereof, shall be liable, nt the discretion of the court, to be hept in penal serritvde for life, or for any other term not less than fire years (21 & 28 Vict. c. 47) or to be imprisoned for any term not exceeding two years, with or without hard labour. (Former provision, 14 & 1.5 Vict, c. 19, s. 3.) 3. Administering Poison with Intent to Endanger Life, Aggrieve or Annoy. Statute.]— By 24 & 25 Vict. c. 100, s. 23, loho- soever shall unJawfuZly and maliciously admin- ister to, or coMse to be administered to or talien by, any otlier person, any poison or other de- siiiictire or no.rious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and, being con- victed tliereof, shall be liable, at the discretion of the court, to be hejjt in penal servitude for any term not exceeding ten years, and not less than fine years (27 &'28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour. (Similar to former provision, 23 Vict. c. 8, s. 1.) With Intent to Ijijnre, Aggrieve or Annoy.]— By s. 24, whosoever shall unlawfully and ma- liciously administer to, or cause to be adminis- tered to or talien by, any other person, any poUon or other destructive or noxious thing, nu.th in- tent to injure, aggrieve or annoy such person, shall be guilty of a mAsdemeanor, and, beiwj convicted thereof, shall be liable, at the discre- tion of the court, to be hept in penal servitude for tlie term of five years (27 & 28 Vict. c. 47), or to be imprisoned for any term, not exceeding two years, with or without hard labour. (Simi- lar to 23 Vict. c. 8, s. 2.) By s. 25, if, upon tlw trial of any person for any felony in the last but one preceding section mentioned, the jury shall not ie satisfied that such person is guilty thereof, but shall be satis- fied that he is guilty of any misdemeanor in the 'last preceding section mentioned, then and in every such case the jury may acquit the accused of such felony, and find him guilty of such mis- demeanor, and thereupon he shall be liable to be punished in the same manner as if cnnvictcd upon an indictment for such misdemeanor. (Similar to 23 Vict. c. 8, ». 3.) M. C. 72 ; 7 Jui-., N. S. 1128 ; 5 L. T. 330 : 10 W. R. 62. . But administering cantharides to a woman, with intent to injure her healtli, was not a mis- demeanor at common law, neither was it an assault, nor within 7 Will. 4 & 1 Vict. c. 85. Reg. V. Hanson, 4 Cox, C. C. 138 ; 2 C. & K. 912. What are Noxious Things.] — A man was in- dicted for wilfully and maliciously administer- ing to Mary Eowe, a poison, to wit, a certain destructive and noxious thing, to wit, cantha- rides, with intent to injure, annoy and aggiieve. To constitute this offence, the thing administered must be noxious in itself, and not merely when taken in excess, and that although it may have been administered with intent to injure or annoy. Reg. V. I-Iennah, 13 Cox, C. C. 547. Poison to Annoy — Inflicting Bodily Harm.]— Under 24 & 25 Vict. c. 100, ss. 23, 24, if a noxious thing is unlawfully administered with intent only to injure or annoy, and does, in fact, iniiict grievous bodily harm, a felony is committed. Tulley V. Carrie, 10 Cox, C. C. 640 ; 17 L. T. 140 ; S. a, 10 Cox, C. C. 584, at nisi prius. 4. Injuring Persons by Explosivj; or Corrosive Substances. What is.] — ^Administering cantharides to a woman, with intent to excite her sexual passion, in order to obtain connexion with her, was an administering with intent to injure, aggrieve or annoy, within 23 Vict. c. 8, s. 2. Reg.y.^^d- hins U & 0. 89 ; 9 Cox, C. C. 20 ; 31 L. J., Digitized by Microsoft® statute.]— By 24 & 25 Vict. c. 100, s. 28, who- soever shall unlaicfuUy and maliciously, by the explosion of gunpowder or other explosive sub- stance, burn, maim-, disfigure, disable, or do any grievous bodily harm to any person, sJtall be guilty of felony, and, being convicted thereof, shall be liable at the discretion of the court, to be hept in penal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceed- ing two years, with or without hard labom; and with, or without solitary confinsment, and, if a male mnder the age of sixteen years, with or without whipping. (Former provision, 9 & 10 Vict. u. 25, s, 3.) By s. 29, whosoever sltall unlawfully and maliciously cause any gunpowder or other ex- plosive substance to explode, or send or deliver to or came to be tahen or received by any person any explosive substance or any other dangerous or noxious thing, or put or lay at any place, or east or throw at or upon or otherwise apply to any person, any corrosive fluid or any destruc- tive or explosive substance, with intent -in any of the cases aforesaid to burn, maim,, disfigure, or disable any person, or to do some grievous bodily harm to any person, shall, whetlier any bodily injury be effected or not, be guilty of felony. (Punishment the same as in the last .section. Former provisions, 9 & 10 Vict. c. 25, s. 1 ; 7 ■Will. 4 & 1 Vict. c. 85, s. 5.) , , „ , By s 30 whosoever shall unlawfully and maliciously place or throw in, into, upon, against, or near any building, ship, or vessel, any gun- powder or other explosive substance, unth mtent to do any bodily injury to any person, shall whether or not 'any explosion taie i'Jfff;/''^ whetlxsr or not any bodily injury be effected, be auiltv of felony, and, being emmicted tliereof 'Lll'blLbleit the discretion ^^^^^^^ be hept in penal servitude for any term not excSina fourteen years, and not less than five years (i1 i 28 Vict: c. 47), or to be nnpnsoned CEIMINAL l^KW—Murder, Assaults, dc. 489 for cmy term not eicceeding two years with or ■ivithout liard lahojir, and with or without solitary confinement, and, if a wale under ths aqe of sixteen years, with or without whipping. {Former provision, 9 & 10 Vict. u. 25, s. 6.) Boiling Water.] — Boiling water was a dangerous thing within 7 Will. 4 & 1 Vict. c. 85. Req. V. Crawford, 2 C. & K. 129. A woman pouring boiling water over the face and into the ear of her husband while he was asleep, whereby he was temporarily blind, and permanently deaf on one side : — Held, that she might be convicted of felony under 7 Will. 4 & 1 Vict. c. 85, s. 5. J J. 5. By Speing Guns. Statute.]— By 24 & 25 Vict. c. 100, s. 31, who- soever shall set or place, or cause to he set or placed, any spring gun, man trap, or other engine calculated to destroy human life, or inflict grievous iodily harm, with the intent that tlie same or whereby the same may destroy or in- flict grievous iodily liarm upon a trespasser or other person coming in contact therewith, shall ie guilty of a midemeanor, and, being convicted tliereof, shall be liable, at the discretion of the court, to ie kept in penal servitude for the term of five years (27 & 28 Vict. c. 47), or to be im- prisoned for any term not eseeeeding two years, with or without hard labour ; And whosoerer sliall hnmcingly and wilfully permit any such spring gun, man trap, or other engine, which may hare been set or placed in any place then being in, or afterwards coming into, his possession or occupation, by some other person, to continue so set or placed, shall be deemed to have set and placed such gun, trap, or engine with such intent as aforesaid : Proridcd tJtat nothing in this section con- tained shall extend to mahe it illegal to set or place any gin or trap, such as may have been or may be usually set or placed with the intent of destroying vermin : Provided also, that nothing in this section shall be deemsd to malic it unlawful to set or place, or cause to be set or placed, or to he eon- tinned set or placed, from sunset to sunrise, any spring gun, man trap, or other engine which shall be set or placed, or caused or continued to be set or placed, in a dwelling-house for the protection thereof. {Former provision, 7 & 8 Geo. 4, c. 18, ss. 1, 2, 3, 4.) Before this Enactment.] — The plaintiff entered the defendant's garden at night, and without his permission, to search for a stray fowl, and, whilst looking closely into some bushes, he came in contact with a wire, which caused something to explode with a loud noise, knocking him down and slightly injuring his face and eyes : — Held, in an action, that the defendant was not liable for this injury at common law, or, in the absence of evidence that it was caused by a spring gun or other engine calculated to inflict grievous bodily harm, under 7 & 8 Goo. 4, c. 18, s. 1. Wootton T. Dawhins, 2 C. B., N. S. 412. 6. INJUEING PbBSONS BY WANTON OB Ftjbiotjs Dbiving. By 24 & 25 Vict! c. 100, a. 35, whosoever having the charge of any carriage or vehicle, shall, by 490 wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or ■ cause to be done any bodily harm to any person whatsoever, shall he guilty of a misdem.eanor, and, being convicted thereof, shall be liable, at the discretion of the court, to he imprisoned fin- any term not exceeding two years, with or with- out liard labour. {Former provision, 1 Geo. 4, c. 4.) 7. Illtbbatmbnt of Helpless Peesons. Statute.]— By 24 & 25 Vict. c. 100, s. 26, who- soever, being legally liable, either as a master or mistress, to provide for any apprentice or servant necessary food, clothing, or lodging, shall wil- fully and without lauful excuse refuse or neglect to provide the same, or shall unlawfully and maliciously do or cause to be done any bodily harm, to any mich apprentice or servant, so that the life of such apprentice or servant shall he endangered, or the healtJt of such apprentice or servant shall have been, or shall be lihely to be, permanently injured, shall he guilty of a misde- meanor, and, being convicted thereof, sliall he liable, at the discretion of the court, to be hept in penal servitude for the term of five years (27 & 28 Vict. u. 47), or to he imprisoned for any teo-m not exceeding two years, with or with- out hard labour. {Former provision, 14 & 15 Vict. c. 11, s. 1.) Of Children at Common Law.] — If a woman, in breach of her maternal duty, wilfully abandons her child of too tender years to provide for itself, she is not indictable at common law, unless her abandonment causes an injury to the health of the child. Reg. v. Phillpott, Dears. C. 179 ■ 6 Cox, C. C. l'40 ; 22 L. J., M. C. 113 ; 17 Jur' 399. Evidence " that the child had suffered iajury, but not to any serious extent," does not suffi- ciently support an averment in the indictment that the health of the child had been greatly and materially injured. lb. In an indictment against a parent for neglect- ing to provide sufficient food and clothing for a child of tender years, for whom he is bound by law to provide, it is not necessary to aver that the parent was, at the time of the allewed offence of sufficient ability to perform the duty so imposed upon him. Reg. v. Ryland, 1 L R C. C. 99 ; 37 L. J., M. C. 10 ; 17 L. T. 219'- 16 W. R. 280 ; 10 Cox, C. C. 569. Master not bound to Provide Hedical Advice.] — A master is not by law bound to provide medical advice for his servant ; but with respect to an apprentice, a master is bound, during the illness of his apprentice, to provide him vrith proper medicines. Reg. v. Smith, 8 C. & P. 153. Master not supplying Food.]— A girl of six- teen is not an infant of tender years, and there- fore her master and mistress, who have not kept her under duress, are not guilty of a misdemeanor is not supplying her with sufficient food and nourishment, whilst in their service. Anon., 5 Cox, C. C. 279. An indictment lies against a master for not providing sufficient food and sustenance for a servant, whereby she became sick and emaciated. Rex V. Ridley, 2 Camp. 650. Digitized by Microsoft® 491 CEIMINAL luAW— Murder, Assaults, dec. Idiots.] — If one has his idiot brother, who is helpless, as an inmate in his house, and omits to supply him with proper food, warmth, &c., he is not indictable for the omission. Rex v. Smith, 2 C. & P. 449. Prisoners of War.]— It is an indictable ofEence wilfully and maliciously to supply prisoners of war with unwholesome food not iit to be eaten by man. Rex v. Treere, 2 East, P. C. 821. Of lunatics.]— By 16 & 17 Vict. c. 96, s. 9, if any 'superintendent, officer, nurse, attendant, _ servant, 'or other person employed in any regis- tered hospital or licensed house, or any person having the care or charge of any single patient, or any attendant of any siiigle patient, in any way aiuse, or ill-treat, or loilfully neglect any patient in such hospital or house, or such single patient, or if any person detainiyig, or taking or Jiaring the care or charge, or concerned or taking part in the custody, cure, or treatment of any lunatic or persmi alleged to he a lunatic, in any loay abuse, illtreat, or wilfully neglect such lunatic or alleged lunatic, he shall he guilty of a misdemeanor, and sJtall ho suhjeet to indict- ment for every such offence, or to forfeit for erery such offence, on a summary conriction thereof hefore two justices, any sum not exceed- ing 201. By Person in Charge of — ^Who is.] —A. was convicted on an indictment under 16 & 17 Vict, c. 96, s. 9, which charged that he, having the care and charge of his wife, a lunatic, did abuse and illtreat her : — Held, that he was not a person having the care or charge of a lunatic within the meaning of the statute, inasmuch as its provisions were not intended to apply to persons whose care or charge arises from natural duty. Reg. v. Bundle, Dears. C. C. 482; 6 Cox, C. C. 549 ; 3 C. L. K. 659 ; 24 L. J., M. C. 129 ; 1 Jur., N. S. 430. But a man who has voluntarily taken upon himself the care of a lunatic brother in his own private house is a person having the care and charge of a lunatic within 16 cfc 17 Vict. o. 96, s. 9, and is liable to be indicted for illtreating him. Reg. v. Porter, L. & C. 394 ; 9 Cox, C. C. 449 ; 33 L. J., M. C. 126 ; 10 Jur., N. S. 547 ; 10 L. T. 806 ; 12 W. E. 718. The two prisoners, brothers of the lunatic, took a house, and their mother and lunatic sister lived with them. They supported the house- hold, but did not receive any payment for or on account of any special charge of their lunatic sister. The illtreatment of the lunatic was con- clusively proved : — Held, that the two prisoners were .persons having the care or charge, or con- cerned or taking part in the custody, care, or treatment of a lunatic within s. 9 of the 16 & 17 Vict. c. 96. Reg. v. Smith, 14 Cox, C. C. 398 ; 42 L. T. 160 ; 44 J. P. 314. Duty of Overseers.] — It is an indictable ofEence in an overseer to neglect to supply medical assistance, when required, to a pauper labouring under dangerous illness, although he was not in the workhouse, nor had, previously to his illness, received or stood in need of parochial relief. Rese V. IVarren, E. & K. C. C. 48, n. And see ilays V. Bryant. 1 H. Bl. 253 ; Bear v. Saunders, 7 C'. & P. 277. 492 But an overseer is not indictable for not relieving, a pauper, unless there is an order for his relief ; except in case of immediate emer- gency, where there is not time to get an order Rex V. Meredith, E. & E. C. C. 46. But see contri, Rex v. Booth, E. & E. C. C. 47, n ; and 4 & 5 Will. 4, c. 76, ss. 52, 54, Indictment.] — An indictment charging a feme covert, living separately and- apart from her husband, with neglecting and refusing to pro- vide necessaiy meat and drink for her servant, and keeping her without sufficient warmth, whereby she became sick and emaciated, is insufficient, in not alleging that the servant was of tender years, and under the dominion and control of the defendant. Bex v. Bidlcu, 2 Camp. 650. So an indictment against a master for not providing necessaries for his apprentice, ought to state that the apprentice was of tender years, and unable to provide for himself. Rex v. Friend, E. & E. C. C. 20. A count charged that a lunatic was the iller gitimate child of the defendant, a female, who had means for the comfortable support and majntenance of both, whereupon it became her duty to take proper care of him, but that she did not take proper care of him, but kept and confined him in a dark, cold and unwholesome room ; neglected to provide him with proper clothing ; permitted him to become dirty ; allowed the room to become foul, so as to cause unwholesome smells ; and kept him without proper air, warmth and exercise necessary for his health, to his damage and peril. Judgment arrested, first, because no duty was shewn ; and secondly, because it was not shewn that the conduct of the defendant had or must have occasioned actual injury. Reg. v. Pelham, 8 Q. B. 959 ; 15 L. J., M. C. 105 ; 10 Jur. 659. Abandonment and Exposure of Children.] — By 24 & 25 Vict. c. 100, s. 27, whosoever shall un- lawfully ahandon or expose any child, teiiig under ilie age of two years, wherehy the life of such child shall he endangered, or the health of such child shall have heen or sliall he lihely to he permanently injured, shall he guilty of a misdemeanor, and, heing eonvieted thereof, shall he liahle, at the discretion of tlte court, to be hept in penal servitude for the term of five years (27 & 28 Vict. c. 47), or to he imprisoned, for any term not exceeding two years, with or without liard labour. When Indictable.] — It is an indictable ofEence to expose a person to the inclemency of the weather. Rex v. Ridley, 2 Camp. 650, 653. What is.] — ^A. and B. were indicted for that they " did abandon and expose a child then being under the age of two years, whereby the life of the child was endangered." A., the mother of a child five weeks old, and B., put the child into a hamper, wrapped up in a shawl and packed with shavings and cotton wool; and A., with the connivance of B., took the hamper to M., about four or five miles ofE, to the booking office of the railway station there. She there paid for the carriage of the hamper, and told the clerk to be very careful of it, and to send it to a. by the next train, which would leave M. in ten minutes from that time. She said nothing as to the Digitized by Microsoft® 493 CEIMINAL luAW— Murder, Assmdts, dc. contents of the hamper, which was addressed, " Mr. Carr's, Northoutgate, Gisbro', with care, to be delivered immediately," at which address the father of the child was then living. The hamper was earned by the ordinary passenger train from M. to G., leaving M. at 7.45 P.M., and arriving at G. at 8.15 P.M. At 8.40 P.M. the hamper was delivered at its address. The child died, three weeks afterwards, from causes not attributable to the conduct of the prisoners. On proof of these facts, it was objected for the prisoners that there was no evidence that the life of the child was endangered, and that there was no abandon- ment and no exposure of the child within the meaning of the 24 & 25 Vict. u. 100, s. 27. The objections were overruled, and the prisoners found guilty : — Held, that the conviction should be affirmed. Reg. v. FalMngham, 1 L. E., C. C. 222 ; 39 L. J., M. C. 47 ; 21 L. T. 679 ; 18 "W. E. 355. A woman, who was living apart from her husband, and who had the actual custody of their child under two years of age, brought the child, in the month of October, and left it at the father's door, telling him she had done so. He knowingly allowed it to remain lying outside his door, and subsequently in the roadway, from about 7 P.M. to 1 A.M., when it was removed by a constable, the child then being cold and stiff : — Held, that though the father had not had the actual custody and possession of the child, yet, as he was by law bound to provide for it, his allowing it to remain where he did was an abandonment and exposure of the child by him, whereby its life was endangered, within 24 & 25 Vict. e. 100, 3. 27. Beg. v. White, 1 L. E., C. C. .Sll ; 40 L. J., M. C' 134 ; 24 L. T. 637 ; 19 W. E. 783 ; 12 Cox, 0. C. 83, Indictment.] — Indictment charging A. with unlawfully leaving a child of a month old, of which she had the care, in a highway in a parish with intent to burden the parish with the main- tenance of the child, is bad, for not negativing the settlement of the child in the parish, and for not alleging any injury done to the child by the act of A. Reg. v. Cooper, 1 Den. C. C. 459 ; 2 0. & K. 876 ; T. & M. 125 ; 3 Cox, C. C. 559 ; 18 L. J., M. 0. 168 ; 13 Jur. 502. An indictment charging that a woman deserted her bastard child with intent to throw the bur- den of its maintenance on the parish, is bad, without an averment that the child had sustained any injury by the abandonment, or that the woman had the means of supporting the child. Reg. V. Hogan, 2 Den. C. C. 27r; T. & M. 610 ; 5 Cox, C. C. 2.55; 20 L. J., M. C. 219; 15 Jur. 805. An indictment charging a party with abandon- ing a child with the intent to burden a particular parish with its maintenance, is not supported by proof that the child was deposited by the ■ accused in a parish in a secret place where it was not likely to be found. Reg. v. Renshaw, 2 Cox, C. C. 385 ; 11 Jur. 615. 8., False Impeisonmbnt. What is — Confining Captain of Ship.] — In an indictment for confining a captain of a ship, constructive confinement will satisfy the require- ments of the statute, and this will be .supported by evidence that, although no force was used, the captain was restrained by the presence and gestures of the prisoners, and deprived of his 494 lawful command, and compelled to remain in certain parts of the vessel. Rea. v. Jones, 11 Cox, C. C. 393. — — On board Ship.] — The defendant was convicted on an indictment charging him with assaulting the prosecutors on the high seas, and imprisoning and detaining them. They were Chilian subjects and had been ordered by the government of Chili to be banished from that country to England. The defendant being master of an English merchant vessel lying in the territorial waters of Chili, contracted with the Chilian government to take the prosecutors from Chili to Liverpool ; they were accordingly . brought on beard his vessel by the ofiicers of the government and carried by the defendant to Liverpool under his contract : — Held, that though the conviction could not be supported for the assault and imprisonment in the Chilian waters, it must be sustained for that which was done out of the Chilian ten-itory, and that although the defendant was justified in receiving the prosecu- tors on board his vessel in Chili, yet that justifi- cation ceased when he passed the line of Chilian jurisdiction, and that the detention amounted to a false imprisonment and was triable by English law. Reg. v. Zesley, Bell, C. C. 220 ; 8 Cox, C. C. 269 ; 29 L. J., M. C. 97 ; 6 Jur., N. S. 202 ; 1 L. T. 452 ; 8 W. E. 220. Of lunatic] — See Req. v. Smith, post, col. 497. ^ - " ^ 9. Assault. a. Common Assaults. What is.] — To support a charge of assault, such an assault must be shewn as could not be justified, if an action was brought for it, and leave and licence pleaded. Reg. v. Meredith, 8 C. & P. 589. Presenting Pistol.] — If a person presents a pistol, purporting to be a loaded pistol, at another, and so near as to have been dangerous to life if the pistol had gone ofE ; semble, that this is an assault, even though the pistol was, in fact, not loaded. Reg. v. St. George, 9 C. & P. 483. But see Blalte v. Barnard, 9 C. & P. 626. It is an assault to point a loaded pistol at any one ; but not an assault to point a pistol at another which is proved not to be so loaded as to be able to be. discharged. Reg. v. James, 1 C. & K. 530. Threateningf Attitude.]— A. was advanc- ing in a threatening attitude, with an intention to strike B., so that his blow would have almost immediately reached B., if he had not been stopped : — Held, that it was an assault in point of law, though, at the particular moment when A. was stopped, he was not near enough for his blow to take effect. Stepliem v. Myers, 4 C. & P. 349. Self-defence.] — If one man strikes another a blow, that other has a right to defend himself, and strike a blow in his defence, but he has no right to avenge himself ; and if, when all the danger is past, he strikes a blow not necessary, he commits an assault and a battery. Reg. v. Driscoll, Car. & M. 214. A party struck at may strike again, to prevent a repetition. Anon., 2 Lewin, 0. C. 48. Digitized by Microsoft® 495 CRIMINAL TuAW— Murder, Assaults, dc. —^- Persons Present at a Prize-fight.] — A prize-fight is illegal, and all peraons aiding and abetting therein are guilty of assault, and the consent of the persons actually engaged in fighting to the interchange of blows does not afford any answer to the criminal charge of assault. Beg. v. Coiiey, 8 Q. B. D. 53i ; 51 L. J., M. C. 66 ; 16 L. T. 307 ; 30 W. R. 678 ; 46 J. P. 40-t ; 15 Cox, C. C. 46. Persons Striking one another.] — If two go out to strike one another, and do so, it is an assault in both, and it is quite immaterial who strikes the first blow. Reg. v. Lewin, 1 C. & K. 419. Effect of Consent.] — A man induced two youths above fourteen years to go out with him in the evening to an out-of-the-way place, where they mutually indulged in indecent practices on each other's persons. The youths were willing and assenting to what was done : — Held, that a conviction for an indecent assault could not be upheld. Reg. v. WoUastna, 12 Cox, C. C. 180 ; 26 L. T. 403. See now 43 & 44 Vict. c. 45, s. 2. An assault must, in the absence of fear or fraud to procure consent, be an act done contrary to the consent of the patient, but mere submission by the patient, in ignorance of the moral nature of the act, to an act of indecency done by the agent does not amount to such consent ; there- fore, where two boys of eight years of age sub- mitted to indecent acts on the part of a grown-up man in ignorance of the nature of the acts to be done and done, the man was held to be rightly convicted of an indecent assault. Reg. v. Zoc7i, 2 L. E., C. C. 10 ; 42 L. J., M. C. 5 ; 27 L. T. 661 ; 21 W. K. 144. Mere submission to an indecent act, without any positive exercise of a dissenting will, where, owing to circumstances, the person submitting is in ignorance of the nature of the act, is not such a consent as the law contemplates, so as to pre- vent the act from being an assault. li. . — - Improper Connexion with Female.] — Three boys under fourteen had connexion with a girl, aged nine ; they were indicted for an assault ; the jury found them guilty, the child being an assenting party, but that from her tender years she did not know what she was about :— Held, that this was not an assault, and that the conviction was wrong. Reg. v. Read, 2 C. & K. 957 ; 1 Den. C. C. 377 ; T. & M. 52 ; 3 New Sess. Cas. 405 ; 19 L. J., M. C. 88 ; 13 Jur. 68. See now 43 & 44 Vict. c. 45, s. 2. Attempting to carnally know and abuse a girl between the ages of ten and twelve is not an assault, if the girl consents to all that is done, but is a misdemeanor. Reg. v. Martin, 9 C. & P. 213 ; 2 M. 0. C. 123 ; S. P., Reg. v. Johnson, 10 Cox, C. C. lit; L. & C. 632. Rut see note 43 & 44 Vict. c. 45, s. 2. The person making such attempt, with the consent of the girl, is not indictable for an assault, but is indictable for the misdemeanor of attempting to commit the misdemeanor of car- nally knowing and abusing her. lb.; b. ^., Reg. V. Keale, 35 L. J., M. C. 60. If the prisoner obtains possession of a woman by surprise and in attempting to have connexion, penetrates her person a little, it is an assault. Reg. V. Stanton, 1 C. & K. 415. If the jury in a case of rape think that the 496 prosecutrix was first laid hold of against her will, but afterwards did not resist, because she m some degree consented to what was afterwards done to her, they ought to acquit of the felony but convict of the assault. Reii. v. Hallett. 9 C. & P. 748. If a man has connexion with a woman, she consenting under the belief that it is her hus- band, this is an assault. Rea. v. WUliams. 8 C & P. 286. Where a prisoner is charged with unlawfully making an assault on a girl between the ages of ten and twelve years of age and unlawfully and carnally knowing and abusing her against the form of the statute, ho may be found guilty of a common assault. Reg. v. Guthrie, 1 L. K., C. C. 241 ; 39 L. J., M. C. 95 ; 22 L. T. 485 ; 18 W. E. 792. On an indictment for carnally knowing and abusing a girl under ten, the prisoner may be acquitted of the felony and convicted of an assault. Reg. v. Follies, 2 M. & Eob. 460. Where a medical practitioner had sexual con- nexion with a female patient of the age of four- teen, who had for some time been receiving medical treatment from him : — Held, that he was guilty of an assault, the jury having found that she was ignorant of the nature of his act, and made no resistance, solely from a bona, fide belief that he was (as he represented) treating her medically, with a view to her cure. Reg. v. Case, T. & M. 318 ; 1 Den. C. C. 580 ; 4 Cox, C. C. 220 ; 4 New Sess. Cas. 347 ; 19 L. J., M. C. 174 ; 14 Jur. 489. Abandonment of Child.] — Afemale aban- doned her infant child, having first deposited it in the bottom of a dry ditch among some nettles, by which it was not hurt ; and had not suffered any harm from the exposure, as it had been found shortly afterwards : — Held, that she could not be convicted of a common assault. Reg. V. Renshaw, 2 Cox, C. C. 385 ; 11 Jur. 615. Child Placed on Railings.] — C. was delivered of a child at the house at which A. and B. resided, they telling her that the child was to be taken to an institution to be nursed. A. and B. took the child, and put it into a bag, and hung it on some park-palings at the side of a foot- path, and there left it :— Held, that this was an assault on the child. Reg. v. March, 1 C. & K. 496. Chastisement in Indecent Manner.]— Where a master of a union inflicts personal chastisement on a female pauper in an indecent manner, he is guilty of an assault, even though the extent of the correction is within the limits of moderation. Reg. v. Miles, 6 Jur. 243. Stripping Female for Medical Examina- tion 1— Making a female patient strip naked, under the pretence that the defendant, a medical man, cannot otherwise judge of her illness, is, if he himself takes off her clothes, an assault. Rex V. RosinsU, 1 M. C. C. 198. Indecent Liberties. ]-If a schoolmaster takes indecent liberties with a female scholar, wTthourher consent, though she does not resist he is liable to be punished as for a common assault. Rex v. mchol, E. & E. C. O. IdU. Digitized by Microsoft® 497 CEIMINAL l^XW—Mwder; Assaults, de. 498 Cutting off Pauper's Hair.] — If parish officers cut ofi the hair of a pauper in the poor- house by force, and against the will of such pauper, this is an assault ; and if it be done as matter of degi'adation, and not with a view to cleanliness, that will be an aggravation, and go to increase the damages. Forde v. Skinner, 4 C. & P. 439. Keeping Idiot without Necessaries.] — If one has an idiot brother who is bed-ridden in his house, and keeps him in a dark room without sufficient warmth or clothing, this will not be an assault or an imprisonment, nor will proof of this support an indictment for an assault or an imprisonment. Hsx v. Smith, 2 C. & P. 449. Threatening Language or Behaviour with Intent to Provoke a Breach of the Peace.] — Where a tract distributor followed two Roman Catholic clergymen in the public street, and handed them a bill, inviting them to a discussion on religious matters, and persisted in holding up the bill after he had been informed they were Roman Catholic priests : — It was held that such conduct was making use of threatening, abusive or insulting language or behaviour, which might provoke a breach of the peace. And a magistrate having convicted the tract distributor for such conduct on a charge of assault, the court refused a certiorari to bring up the conviction for the purpose of quashing it. Reg. V. Khig, 14 Cox, C. C. 434. Assault in Legislative Assembly.] — An information by the attorney-general of New South Wales charged, " That on the 26th of February, 1868, at Sydney, in the colony, while the legislative assembly of the colony was sitting, a member of the assembly, whose conduct had been, and was then, under its consideration, after having been heard in his place in the assembly in reference to such conduct, was, in accordance with the practice of the assembly, requested by the speaker to withdraw therefrom, and that the member, in obedience to the request, thereupon withdrew fi'om the assembly, and that imme- diately on his so withdrawing, the defendant being a member of the assembly, in and upon the member did make an assault, and him (the member) did then beat, wound and ill-treat, in contempt of the assembly, in violation of its dignity, and to the great obstruction of its busi- ness : " — Held, that the information charged in proper terms a common assault. That the words, " in contempt of, etc.," did not constitute a separate charge, or derogate from the charge of assault. Reg. v. MacpTuirson, 3 L. R., P. C. ?68 ; 39 L. J., P. C. 59 ; 23 L. T. 101 ; 18 W. R. 1053. Putting Noxious Thing into Drink.] — A. put cantharides into rum, and gave it to B. to drink ; B. drank it, not knowing that the can- tharides was in the rum, and became ill : — Held, that A. was neither indictable for an assault, nor for a misdemeanor at common law. Reg. v. Hanson, 2 C. & K. 912 ; 4 Cox, C. C. 138 ; 8. P., Reg. V. Walhden, 1 Cox, C. C. 282 ; Reg. v. Ml- worth, 2 M. & Rob. 531. When Assault Justified.] — If a party is turning towards the wall in the street, at night, for a particular occasion, a watchman is not justified in collaring him to prevent him so doing. Booth v. Ilanley, 2 C. & P. 288. See 2 & 3 Vict. c. 47. A person may, under particular circumstances, justify laying hands on another in order to serve him with process. Harrison v. Hodgson, 10 B. & C. 445 ; 5 M. & R. 392. A police-constable is not justified under 10 Geo. 4, c. 44, s. 7, in laying hold of, pushing along the highway, and ordering to be off, a person found by him conversing in a crowd with another, merely because the person with whom he happens to be conversing is known to be a reputed thief. Stoclten v. Carter, 4 C. & P. 477. See 2 & 3 Vict. c. 47. To Prevent Broker Ee-enterln^.] — A broker and his man having levied a distress for rent, the man in possession was ejected. The owner of the goods was not in the room at the time of the levy, and it was not proved that he was a party to turning the man out, or that he knew of the distress being levied ; but on the broker and his assistants breaking open the outer door to re-enter, the prisoner struck one of the assistants with an axe on the forehead : — Held, that the prisoner must at least be found guilty of an assault. Reg. v. SvZlivan, Car. & M. 209. b. On Clerg7inen or ministers -of Keligion. Statute.]— By 24 & 25 Vict. c. 100, s. 36, whosoever sliall, ly threats or force, ohstnict or prevent, or endeavour to ohstrnet or prevent, any clergyman or other minister in or from, cele- brating divine service, or otherwise officiating in any church, chapel, meeti7ig -house or other place of divine worship, or in or from tlie per- formance of his duty in the lawful burial of the dead in any churchyard or other Vunal-place, or sliall strike or offer any violence to, or shall, upon any civil process, or under the pretence of executing any civil process, arrest any clergy- man or otlier minister who i^s engaged in, or to the knowledge of the offender is about to engage in, any of the rites or duties in this section aforesaid, or who to the knowledge of the offender shall be going to perform the same, or returning from, ths performance thereof, shall be guilty of a misdemeanor, and, being convicted tliereof, shall be liable, at the discretion of the court, to be impriso7ied for any term not exceeding two years, vnth or without hard labour. Indictment.] — ^An indictment charging that the defendant, in a churchyard, interrupted and obstructed W. C, clerk, in reading the order for the burial of the dead and interring a corpse, and unlawfully, and by threats and menaces, hin- dered the burial of the corpse, is bad in arrest of judgment, for not averring that W. C. was a clerk in holy orders, and lawfully acting as such in the burial of the corpse, and for not setting out the particular threats and menaces used. Rex V. Checre, 7 D. & R. 461 ; 4 B. & C. 902. 0. On Magistrates or other Persons preserving Wrecks. Statute.]— By 24 & 25 Vict. c. 100, s. 37, who- soever shall assault and strike or wound any magistrate, officer, or other person ivhatsoerer lawfully authorized, i7i or on account of tlie exercise of his duty in or concerning the preser- Digitized by Microsoft® 499 CEIMINAL LAW— ilfttrcZe/-, Assaidts, dec. leatloti of any vessel in distress, or of any vessel, goods or effects wi-relted, stranded or cast on shore, or lying wider water, shall ie guilty of a misdemeanor, and, being convicted thereof, shall lie liable, at the discretion of the court, to be hept in penal servitude for any term not e.rcred- ing seven years, and not less tlianjiee years (27 & 28 Vict. 0. 47), or to be imprisoned for any term not exceeding two years, with or .without hard labour. A. Ou Peace and other Officers in Execution of Duty. Statute.]— By 24 & 25 Vict. c. 100, s. 38, loho- soever shall assault any person with intent to commit felony, or sliall assault, resist or wilfully obstruct any 2>eace officer in tlie due e.recution of his duty, or iiny person acting in aid of such officer, or sliall assault any person tvith intent to resist or prevent the lawful apprehension or detainer of himself or of any oilier person for any offence, shall ie guilty of a misdemeanor ; arid, being convicted tliereof, shall be liable, at tlie discretion of the court, to be itnjirisoned for any term not exeeediiig two years, loitli or with- out hard labour. Authority of OfB.cer — Warrant.] — A constable and his assistants who take a bailifE into custody during an affray to rescue his prisoner, in which the bailiff struck one of the assailants, and the prisoner was rescued, are guilty of an assault and a rescue, as the bailiff was authorized by his warrant. Anon., 1 East, P. C. 305. The defendant was convicted in a penalty with costs, or to be imprisoned seven days ; the penalty not having been paid, a warrant was issued, under 11 & 12 Vict. c. 43, s. 25, for his apprehension, addressed " To the constable of G." It was given to a county policeman to execute. While he was attempting to apprehend the defendant, the defendant resisted and wounded the constable :— Held, that a county policeman liad no authority to execute it, it being addressed to the parish constable ; and that the apprehen- sion was therefore illegal. Beg. v. Sanders, 1 L. R., C. C. 75 ; 36 L. J., M. C. 87 ; 16 L. T. ?31 ; 15 W. E. 752 ; 10 Cox, C. C. 445. C. was convicted of an assault on two police constables of the county police of Worcestershire in the execution of their duty, who were appre- hending him in the city of Worcester under a warrant issued by two justices of and for the county of Worcestershire for his commitment to prison for default in payment of a fine, but not backed by any justice of and for the city o± Worcester. Worcester is a borough having a separate commission of the peace with exclusive jurisdiction, and a separate police force, p- y^s not pursued from the county, but found in the ■city :— Held, that the conviction was wrong, that the constables were not acting in the execu- tion of their duty in so executing such wai-rant. Reg. V. Otmpton, 5 Q. B. D. 341 ; 49 L. J., M. C. 41 ; 42 L T. 543 ; 28 W. E. 539 ; 44 J. P. 489. No Warrant.]— A. was indicted for assaulting a policeman in the execution of his duty. It appeared that the policeman had gone into a public-house where the defendant was having high words with the landlady. Ihe defendant tried to go into a room m the house m 500 which a guest was, and the policeman, without being desired to do so, collared him, and pre- vented him from going into the room, and A. struck the policeman, and several blows passed on both sides :— Held, that if the jury was satis- fi.ed that no breach of the peace was likely to be committed by the defendant on the guest in the room, it was no part of the policeman's duty to prevent the defendant from entering it ; but, assuming that to be so, if the defendant used more violence than was necessary to repel the assault committed on him by the policeman, the defendant would be liable to be convicted of a common assault. Reg. v. Mabel, 9 C. & P. 474. A constable (out of the limits of the Metro- politan Acts) when he is clearing a public-house, is not acting in the execution of his duty unless there is a nuisance or a disturbance of the peace. Reg. v. Prebble, 1 F. & F. 325. A police constable, whilst standing outside the defendant's house, saw him take up a shovel and hold it in a threatening attitude over his wife's head, and heard him say at the same time, " If it was not for the policeman outside, I would split your head open." In about twenty minutes' time the defendant left his house, after saying that he would leave his wife altogether, and was taken into custody by the constable, who had no warrant, when he had proceeded a short distance in the direction of his father's residence ; he resisted the constable, and was tried and con- victed upon an indictment charging him with assaulting the constable whilst in the execution of his duty : — Held, that the constable was justi- fied in apprehending the defendant, and that the conviction therefore was right. Reg. v. Light, Dears. & B. C. C. 332 ; 7 Cox, C. C. 389 ; 27 L. J., M. C. 1 ;. B Jur, N. S. 1130. The prisoner assaulted a police constable in the execution of his duty. The constable went for assistance, and after an interval of an hour returned with three other constables, when he found that the prisoner had retired into his house, the door of which was closed and fastened; after another interval of fifteen minutes the constables forced open the door, entered, and arrested the prisoner, who wounded one of them in resisting his apprehension :— Held, that as there was no danger of any re- newal of the original assault, and as the facts of the case did not constitute a fresh pursuit, the arrest was illegal Reg. v. Marsden, 1 L. E., C. C 131 ; 37 L. J., M. C. 80 ; 18 L. T., 298 ; 16 W. R. 711 ; 11 Cox, C. C. 90. B , a county court bailiff, went to levy a judg- ment debt on W., and calling at W.'s door, W. opened it ; B. then put his foot inside the door, and tried to get in against the wish of W., who assaulted B. W. was summoned for assaulting B and the complaint was dismissed by the iusticos :— Held, that they were right, as B. was not in the execution of his duty in attempting to force open a debtor's door. Broughton^. Wtllier- son, 44 J. P. 781. Proof of, at Trial.]— D. was indicted for assaulting a sub-bailiff of a county court. The latter was endeavouring to apprehend D under a warrant issued out of the county court when the assault was committed, but not with more violence than was necessary to prevent the Apprehension :-Held, that the production of the county court warrant at the trial was a sufficient justification of the act of the bailiff, without Digitized by Microsoft® 501 CRIMINAL TiKyV— Murder, Assaults, dc. 502 proof of the previous proceedings in the county- court. Reg. V. Bmis, 8 Cox, C. C. 486 ; L. & C. 64 ; 7 Jur., N. S. 1040 ; 4 L. T. 559. The written list of sentences passed upon the prisoners given to the gaoler hy the clerk of the assize, and which is his only authority for their detention, is not evidence that they are in legal custody on an indictment for assaulting the turnltey in the execution of his duty. Reg. v. Bourdon, 2 Cox, C. C. 169. Knowledge of Defendant.] — To support a charge of assault on a constable in the execution of his duty, it is not necessary that the defen- dant should know that he was a constable then in the execution of his duty ; it is sufficient that the constable should have been actually in the execution of his duty and then assaulted. Reg. v. Forhes, 10 Cox, C. C. 362. manner in which Authority exercised.] — An excise officer gave the defendant a search war- rant to look at, who then refused to deliver it up, and a souffle ensued ; on an indictment for an assault, the question left to the jury was, whether the officer used more force than was necessary to recover possession of the warrant. Rex V. Hilton, M. & M. 107 ; S. C, nom. Rex v. Mitton, 3 C. & P. 31. One of the marshals of the city of London, whose dutv it was, on the day of a jiublic meet- ing at GuJdhall, to see that a passage was kept for the transit to their carriages of the members of the corporation and others, directed a person in the fi-ont of a crowd at the entrance to stand back, and, on being told by him that he could not for those behind him, struolc him immediately on the face, saying that he would make him : — Held, that in so doing the /nai-shal exceeded his authority, and that he should have confined him- self to the use of pressure, and should have waited a short time to afford an opportunity for removing the party in a more peaceable way. Imeson v. Cope, 5 C. & P. 193. Obstructing Apprehension of Felon.] — An innkeeper, having an escaped felon in his house, to the policeman, who had remarked, " You scoundrel, how dare you harbour a felon ?" said "You had better go and find him ;" but he did nothing, and the policeman went up stairs and saw the felon malte his escape from the window : —Held, no evidence of an obstruction of the felon's apprehension. Reg. v. Green, 8 Cox, C. G. 441. Indictment— Sefusing to Assist Constable.]— A.n indictment against a person for refusing to aid and assist a constable in the execution of his duty, and prevent an assault made upon him by prisoners in his custody on a charge of felony, with intent to resist their lawful apprehension, is sufficient, without stating how the apprehension became lawful ; and it is enough if it states a refusal to assist, without the further allegation tliat he did not, in fact, aid and assist. Reg v Shcrloch, 1 L. E., C. C. 20 ; 35 L. J., M. C 92 • 12 Jur., N. S. 126 ; 13 L. T. 623 ; 14 W. E. 288 \ 10 Cox, C. C. 170. ' e. On Seamen, Keelmen, or Casters. By 24 & 25 Vict. c. 100, s. 40, whosoever shall vnlawfully and with force hinder or prevent any seaman, keelman, or caster from working at or exercising his lavfvl trade, business, or occu- pation, or shall heat or use any violence to any snch person with intent to hinder or prevent liim from worMng at or exercising the same, shall, on conviction thereof tefore two justices of the peace, be liable to be imprisoned and hept to hard labour in the common gaol or house of correction for any term not exceeding three months } provided that no person who sliall be punished for any such offence by reason of this section shall be punished for the same offence by virtue of any other law whatsoever. f. On Obstrnctingr Sale of Qrain, or its Free Fassagre, By 24 & 25 'Vict. c. 100, s. 39, whosoever shall beat or use any violence or threat of violence to any person, loith intent to deter or hinder him from buying, selling or otherwise disposing of, or to compel Mm to buy, sell or otherwise dis- pose of any wheat or other grain, flour, meal, malt or potatoes, in any market or other place^ or shall beat or use an/g such, violence or threat to any person having the care or charge of any wheat or othsr grain, flour, meal, malt, or pota- toes, whilst on the way to or from any city, marhet toum or other place, with intent to sto2> the conveyance of the same, shall, on conviction thereof before two justices of the peace, be liable to be imprisoned and hept to hard labour in the common gaol or house of correction for any term not exceeding three months ; provided that no person ivho shall be punished for any such offence by virtue of this section shall bepv/mslted for the same offence by virtue of any other law whatsoever. g. Arising' &om Trade Combinations or Conspiracies. (38 & 39 V/ct. c. 86.) h. Occasioning Actual Bodily Harm. By 24 & 25 Vict. c. 100, s. 47, whosoever shall be convicted upon an indictme7it of any assault occasioning actual bodily harm, shall be liable, nt the discretion of the court, to be hept inpcnal servitude for the term of five years (27 & 28 Vict. c. 47), or to he imprisoned for a7iy term, not exceeding two years, icith or without hard labour. (^Former pro^-i-simi, 14 & 15 Vict c. 100, s. 29, repealed by 24 & 25 Vict. c. 95.) Communicating Infectious Disease.]— An in- dictment for inflicting actual bodily harm is sus- tainable by evidence that a man, knowing that he lias an infectious disease, has intimacy with a girl without informing her of the fact, by means of which the disease was communicated to her. Reg. v. Sinclair, 13 Cox, C. C. 28 ; S. P., Reg. V. Be7inett, 4 F. & F. 1105. . Cp. Hegarty v. Shhw, 14 Cox, C. C. 145 : 4 L. E., Ir. 288— C. A. i. Indictment and Evidence. Indictment— Non-use of Statutable Word.]— The 24 & 25 Vict. c. 100, s. 18, enacts that who- soever shall unlawfully and maliciously by any means " cause " any grievous bodily harm to any person, &c., shall be guilty of felony. An indictment framed upon this section alleged that "A. unlawfully and maliciously did 'inflict' Digitized by Microsoft® 503 CRIMINAL 'LAW— Murder, Assaults, d-c. gi-ievous bodily harm," not using the statutable word "cause ": — Held, that the indictment was sufficient. Reg. v. Uray, 15 Cox, C. 0. 197. Validity of.] — An indictment for an assault, false imprisonment and rescue, stated that the judges of the court of record of the town and county of P. issued their writ, directed to T. B., one of the Serjeants at mace to the said town and county, to' arrest W., by virtue of which T. B. was proceeding to arrest W., within the jurisdic- tion of the court, but that the defendant . assaulted T. B. in the due execution of his office, and prevented the arrest : — Held, that such indictment was bad, it not appearing that T. B. was an officer of the court ; and that there could not be judgment after a general verdict on such a count as for a common assault and false im- prisonment, because the jury must be taken to have found that the assault and imprisonment were for the cause therein stated, which cause appears to have been that the officer was attempt- ing to make an illegal arrest of another, which, being a breach of the peace, the defendant might, for aught that appeared, have lawfully inter- fered to prevent. Hex v. Osmer, 5 Bast, 304 ; 1 Smith, 555. An indictment charging that the defendant made an assault upon Henry B. E., and him the said William B. B. did beat, wound and ill-treat, is good, in arrest of judgment. Meg. v. Orespin, 11 Q. B. 913 ; 17 L. J., M. C. 128; 12 Jur. 433. Against Two.] — ^An indictment against two for an assault on two, is bad. Anon., LofEt, 271. And see SeiB v. Burficld, 2 Burr. 983. Joinder of Counts.] — A count for night-poach- ing may be joined with a count on 9 Geo. 4, c. 69, 8. 2, for assaulting a gamekeeper authorized to apprehend, and with counts for assaulting a gamekeeper in the execution of his duty, and for a common assault. Rex v. Fimicane, 5 C. & P. 551. Becord is Evidence.] — ^Where a defendant has pleaded guilty to an indictment for an assault, the record is evidence against him in an action for the same assault. Reg. v. Fontaine Moreau, 11 Q. B. 1033 ; 17 L. J., Q. B. 187 ; 12 Jur. 626. Proof of Assault on Person bearing Name.]-— On an indictment for an assault on A. B., it is sufficient to prove that an assault was committed on a person bearing that name, although two per- sons bore the same name, viz. A. B. the elder, and A. B. the younger, and the assault had been com- mitted on the latter only. Mc.ti v. Peace, 3 B. & A. 579. j. Punishnient. Statute.]— By 24 & 25 Vict. c. 100, s. 47, wlw- soecer shall be convicted upon an indictment fur a common assault shall be liable, at the discretion of the court, to he imprisoned fur any term not exceeding one year, with or without hard labour. k. Costs of Prosecution. Statute.]— By 24 & 25 Vict. o. 100, s. 74, where any person shall be convicted on any indictment of any assault, whether loith or without battery and wounding, or either of them, suoh person may, 504 if the court think jit, in addition to any sen- tence which tlie court may deem proper for the offence, be adjudged to pay to the prosecutor hi.i actual and necessary costs and expenses of the proseciiition, and such moderate allowance for the loss of time as the court shall by affidavit, or otlier inquiry aiul examination, ascertain to he reasonable; and, unless the sum so awarded shall be sooner paid, the offender shall be im- prisoned for any term tile court shall award, not exceeding three montlis, in addition to the term of imprisonme?it, if any, to ivhich tlie offender may be sentenced for the offence. Bar to Subsequent Action.] — A conviction of a defendant for unlawfully wounding, and his being sentenced therefor to a term of imprison- ment, and to pay a sum of money to the prose- cutor of the indictment, for his necessary costs of the prosecution, and a moderate allowance for his loss of time, pursuant to 24 & 25 Vict. c. 100, s. 74, form no bar to his subsequently suing the defendant for the same assault, and recovering damages for his bodily suffering and medical expenses occasioned thereby. Lowe v. Horwarth, 13 L. T. 297. Levy by Distress. ]— By 24 & 25 Vict. o. 100, s. 75, the court may, by warrant under hand and seal, order such sum as shall be so awarded to be letied by distress and sale of tlie goods and chattels of the offender, and paid to tlie prosecu- tor, and that the surjilus, if any, arising from such sale, shall be paid to the owner; and in case such sum shall be so levied, tlie imprisonment awarded until payment of such sum shall there- upon cease. I. Summary Convictions. i. Zn what Cases. By 24 & 25 Vict. c. 100, s. 42, where any 2'crson shall unlawfully assault or beat any other per- son, two justices of the peace, %ipon complaint by or on behalf of the party aggriei-ed, may hear and determine such offence, and the offender shall, upon conviction thereof before tlicm,at the discretion of thejustlces, either be committed to tlie common gaol or house of correction, there to be imprisoned, with or without hard labour, for any term not exceeding two months, or else shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), the sum of 51.; and if such fine as shall be so awarded, together with the costs (if ordered'), shall not be paid, either im- mediately after the conviction or within such period as tlie said justices shall at the time of the conviction appoint, they may commit the offender to the common gaol or house of correc- tion, there to be imprisoned, with or without hard labour, for any term not exceeding two months, unless such fine and costs be sooner paid. (Former provision, 9 Geo. 4, o. 31, s. 27, repealed by 24 & 25 Vict. c. 95.) Bailiff— Assault on.]— A county court bailiff, while acting in the course of his duty, was assaulted by ¥., who was summoned for the assault under 9 & 10 Vict. c. 95, s. 114 :-Held, that that section was not impliedly repealed by 24 & 25 Vict. c.'lOO, s. 42, and that the justices could not decline jurisdiction on the ground that a question might arise as to the exeoutionunder Digitized by Microsoft® 505 CEIMINAL IjA^— Murder, Assaults, dc. 506 the process of a court of justice. Meg. v. Briggs, 47 J. P. 615. By s. 43, when any person sJiall he charged Ic/ore two justices of the peace with an assault or battery upon any male child whose age shall not in the opinion of such jiixtices exceed four- teen years, or upon any female, either upon the complaint of the party aggrieved or otherwise, the said justices, if the assault or hattery is of such an aggravated nature that it cannot in their opinion he sufficiently punished under the provisions hcreinhrfore contained as to common assaults and hatteries, may proceed to hear and determine the same in a summary way, and, if the same he jiroved, may conriet the person ac- cused; and every such offender shall be liable to he imprisoned in the common gaol or house of correction, with or without hard labour, for any period not exceeding six months, or to pay a Jinc not exceeding (together with costs') the sum of 201., and in default of payment to be impri- Himed in the common gaol or house of correction for any period not exceeding six months, unless suclb fine and costs be sooner paid, and, if the justices shall so thinh fit, in any of the said eases, shall he hound to herp the peace and he of good behaviour for any period not exceeding six months from the expiration of sueh sentence. (Former provision, 16 & 17 Vict. c. 30, s. 1.) By s. H, if the justices, upon the hearing of any such ease of assault or hattery upon the merits, where the complaint was preferred by or on behalf of the party aggrieved, under either of the last two preceding sections, shall deem the offence not to be proved, or shall find the assault or battery to have been justified, or so trifling (IX not to merit any punishment, and shall ac- cordingly dismiss the complaint, they shall forth- irith mahe out a certificate under their hands stating the fact of such dismissal, and shall de- liver such certificate to the party against whom- the com2)laint was preferred. (Former nrotixion. 9 Geo. 4, c. 31, s. 27.) By s. 45, if any 'person, against whom any snch complaint as in either of the last three preceding sections mentioned sliall have been preferred hy or on the behalf of the paHy ag- grieved, shall have obtained such certifieate, or having been convicted, shall Imve paid tlie whole amount adjudged to be paid, or shall have suf- fered the imprisonment or imprisonment ivith hard labour awarded, in every sMch case lie shall be released from all further or otJu-r proceedings, civil or criminal, for the same cause. (Former provision, 9 Geo. 4, c. 31, s. 28.) By s. i%,it is provided, that in ease tlie justices shall find the assault or hattery complained of to have been accompanied hy any attempt to commit felony, or shall be of opinion that the same is, from any other circumstance, a fit sub- ject for a prosecution by indictment, they shall abstain from'any adjudication thereupon, and shall deal with the ease in all respects in the same manner as if they had no authority finally to hear and determine the same : provided also, that nothing herein contained shall authorise any justices to hear mid determine any case of assault or battery in which any Question shall arise as to the title to any lands, tenements or hereditaments, or any interest therein or accruing therefrom, or as to any hanhi-uptcy or insolvency or any execution under the process of any court of justice, (Foo-mer provision, 9 Geo 4 c 31 s. 22.) ' ■ ' ii. Hearing and Certificate. Complainant or Informant Protesting against Hearing,] — An information made before a ma- gistrate stated that the informant, having been assaulted and beaten by another person, prayed that he might be bound orer to keep tlie peace towards him. On the magistrates before whom the case was heard proceeding to deal with the merits of the question of the assault,' the in- formant protested against their adjudicating upon it : — Held, that the justices had no juris- diction to convict summarily the offending party of the assault against the will of the informant, as under 9 Geo. 4, c. 31, s. 27, the justices had no jurisdiction tQ convict of an assault unless the party aggi-ieved complained of that assault before them with a view to their adjudicating upon it. Meg. V. Deny or Totnes (Justices'), 2 L., M. & P. 230 ; 20 L. J., M; C. 189 ; 15 Jur. 227. Hearing — What is.] — A party having been summoned before two justices under 9 Geo. 4, c. 31, s. 27, for an assault, and having appeared and pleaded not guilty, the complainant declined to proceed, stating that he meant to bring an action. The justices thereupon dismissed the complaint, and gave the defendant a certificate as follows : — " We deemed the offence not proved, inasmuch as the complainant did not oHer any evidence in support of the information, and have accordingly dismissed the complaint : " — Held, that what passed before the justices con- stituted a hearing, and that the certificate was a complete bar to an action for the assault. Tu-n- nieliffe v. Tedd, 5 C. B. 553 ; 17 L. J., M. 0. 67. A., having laid an information against B. for an assault, under 9 Geo. 4, c. 31, took oxit a sum- mons, which was served on B., but before the day fixed for the hearing, gave notice to B. that the summons was withdrawn, and also to the magis- trate's clerk that he, A., should not attend on the day. B., however, attended on the day, and claimed, in the absence of the complainant, to have the charge dismissed, and to have granted a certificate of dismissal, pursuant to the statute. The justices dismissed the charge, and granted a certificate, which stated the above facts : — Held, that what was done amounted to a hearing within 9 Geo. 4, c. 31, s. 27, and that the certificate ac- cordingly was a bar to an action for the same assault. Vaughton v. Bradshaw, 9 C. B., N. S. 103 ; 30 L. J., C. P. 93 ; 7 Jur., N. S. 468 ; 3 L. T. 373 ; 9 W. R. 120. Certificate— To what Offences a Bar.]— Where, under 9 Geo. 4, c. 31, ss. 27—29, a complaint of assault or battery has been made to two justices of the peace, who dismissed the complaint and gave the party a certificate accordingly, the cer- tificate may be pleaded in bar to an indictment founded on the same facts, charging assault and battery, accompanied by malicious cutting and Wounding, so as to cause grievous or actual bodily hai-m. Meg. v. Mrington, 1 B. & S. 688 ; 9 Cox, C. C. 86 ; 31 L. J., M. C. 14 ; 8 Jur., N. S. 97 ; 5 L. T. 284 ; 10 W. E. 13. A previous summary conviction for an assault under 24 & 25 Vict. c. 100, s. 45, is not a bar to an indictment for manslaughter of the party assaulted, founded upon the same facts. Meg v Morris, 1 L. R., C. (J. 90 ; 36 L. J., M. C. 84 : 16 L. T. 636 ; 15 W. R. 990 ; 10 Cox, C. C. 480. A man and his wife having each been struck Digitized by Microsoft® 507 CEIMINAI. l^Kyf-Murder, Assaults, d-c. by the defendant, summoned him before lustices for the assaults. The justices, after hearing the case, merely fined him for the assault on the man but committed him to prison for fourteen days in respect of the assault on the woman, who was much hurt. He paid the fine and suffered the imprisonment. An action having been after- wards brought against him for the injuries to the wife, he set up his conviction and imprisonment as a release, under 24 & 25 Vict. c. 100 s i5 The^ plaintiflEs contended that he had been punished only for a common assault, and not for the distinct ofeence of an aggi-avated assault, and that, therefore, the action in respect of the more serious injury was not "for the same cause" withm the meaning of the section. The court thought that the whole case being before the justices, they had power to deal with it as an aggi'avated assault, and had so treated it ■ and therefore the defendant was, by s. 45, released from the action. Iloldeii v. Kinq, 46 L J Ex 75 ; 35 L. T. 479 ; 25 W. R. 62. ' '' A man assaulted a wife, and for such assault was fined by the justices under 24 & 25 Vict c. 100, and paid the fine :— Held, that an action by the husband in respect of the consequential damage to himself by reason of the assault on his wife was barred under s. 45. 3Iasper v Broimi, 1 C. P. D. 97 ; 45 L. J., C. P. 203 • 34 L. T. 254 ; 24 W. R. 369. A certificate applied for by the party entitled, five days after a complaint had been dismissed, and granted two days after the application, but dated as of the day upon which the complaint was made, is made out forthwith, and is a good defence to a subsequent action for the same assault. Costnr v. Hetherington, 1 El. & Bl 802 ; 28 L. J., M. C. 198 ; 5 Jur., N. S. 985. Granting is a ministerial act.]— The granting a certificate of dismissal of the com- plaint is, when a case is brought within s. 27 of the 9 Geo. 4, c. 31, a ministerial, not a judicial act, and a magistrate is therefore boimd to grant it. Hancock v. Somes, 1 El. & El. 795 ; 28 L. J., M. C. 196 ; 5 Jar., N. S. 983. The certificate, if drawn up forthwith and delivered to the party against whom the com- plaint is prefen-ed, is a good bar to a subsequent action for the assault, though not drawn up in the presence of the parties, or applied for by the party against whom the complaint was preferred. Ih. Pleading.] — To an action for an assault, the defendant pleaded that he had been sum- moned by the plaintiff before a magistrate, who convicted him in the costs of the complainant and hearing, which he had paid. At the trial the magistrate's clerk produced his note-book, by which it appeared that the magistrate had merely ordered the defendant to enter into his recognizances, and pay the expenses thereof ; the clerk also said in such cases no conviction was ever drawn up : — Held, that the plea was bad, and did not disclose a defence under 24 & 25 Vict. c. 100, s. 45 ; that it was not proved ; and that, even if there was a conviction, the proper proof was not adduced. Hartley v. Hindmarsh, 1 L. B., C. P. 553 ; 35 L. J., M. C. 255 ; 12 Jur., N. S. 502 ; 14 W. R. 862 ; 1 H. & R. 607. If a party is charged before two magistrates with an assault, and they dismiss the complaint. 508 To an action of assault and battery a eertifi cate under 24 & 25 Vict. c. 94, s 44, may t pleaded, together with a plea that the^ssaul? was committed in order to prevent a breach of App.T°'' "■ ^- '^''"^' ^^ ^'- «• L^- ^'^"of of— Prima facie only one Assault on one Day.]_When an assault charged in an indictment and that referred to in a certificate ot dismissal by a magistrate appear to have been on the same day, it is prima facie evidence that they are one and the same assault, and it IS incumbent on the prosecutor to shew that there was a second assault on the same day, if he alleges that such is the case. Reg. v. We/tley, 11 Cox, C. C. 139. ■' The appearance of the defendant before the magistrate, the recital in the certificate of the tact of a complaint having been made, and of a summons having been issued, are sufiicient evi- dence of those facts. li. Jurisdiction— Claim of Title to land ]— The power given to justices by 24 & 25" Viet. c. 100 s. 42, of summarily hearing and determinin<^ charges of assault and battery, is, by s. 46° ousted in any case where a question as to the title to land arises, and they cannot in such a case convict a person for using more violence than was necessary. Reg. v. Pearson, 5 L. R., B 237 ; 89 L. J., M. C. 76 ; 22 L. T. 126. ' Aggravated, upon Women and Children ] —The 16 & 17 Vict. c. 30, s. 1 (repealed), gave jurisdiction to two justices of the peace sitting at a place where petty sessions are usually held to convict persons of certain assaults, and a warrant of commitment in the general form provided by the 11 & 12 Vict. c. 43, Schedule (P.), was sufficient, without any allegation that the convicting justices were sitting at a place where petty sessions are usually held. AUisoii, Ex parte, 10 Ex. 561 ; 24 L. J., M. C. 73. An information was laid against a man for assaulting and abusing a woman. On the hear- ing before the magistrates, she gave evidence tending to shew that the man had committed a rape on her. The magistrates convicted him of an aggravated assault, under 16 & 17 Vict. c. 30. The conviction recited the information, and found the assault proved, and sentenced him, fol' his offence, to be imprisoned in the house of correction for six calendar months : — Held, that the conviction for the minor offence was good. Tlifimi)son, Ux parte, 6 Jur., N. S. 1247 ; S. P., Wilkinson v. Button, 3 B. & S. 821 ; 32 L. J., M. C. 152. An information before justices charged the defendant with having unlawfully assaulted and abused a female. She and the defendant were each represented by attorneys, and at the hearing, while the attorney for the woman was opening his case, the attorney for the defendant objected that the facts he had stated constituted a case of rape, and that the justices had no jurisdiction. It was then suggested that the case should be treated as a charge of an aggra- vated assault. The case proceeded, and the defendant was convicted of an aggravated Digitized by Microsoft® 509 CEIMINAL 'hA^— Murder, Assmilts, dc. 510 assault. It appeared by affidavits upon an appli- cation for a habeas corpus, with a view to the discharge of the defendant, that the evidence of the woman was to the efiect that the defen- dant had ravished her : — Held, per Pollock, 0. B., and Wilde, B., that the charge was one over which the justices had no jurisdiction ; and that it was competent for the court to look at the evidence with a view to see whether, in point of fact, the case was within the jurisdiction of justices. Tliompson, In re, 6 H. & N. 193 ; 9 Cox, C. C. 70 ; 30 L. J., M. C. 19 ; 7 Jur., N. S. 48 ; 3 L. T. 409 ; 9 W. B. 203. Held, per Bramwell, B., and Channell, B., that the charge did not imply more than a common assault, that the justices had jurisdic- tion, and that the court could not review the decision of the justices upon the fact. li. In order to support a conviction for an aggravated assault there must be an act upon which aggravation supervenes, and with which it is in some way connected. Munday v. Maiden. 33 L. T. 377 ; 24 W. R. 57. A man placed a girl of eight years old on his knee and kissed her. About a quarter of an hour afterwards, without asking her to do any- thing, or again touching her, he exposed his person and abused himself in her presence. The justices sentenced him to six months' hard labour for an assault of an aggravated nature on a female, under 24 & 25 Vict. c. 100, s. 43 :— Held, that what took place after the assault was over could not be said to render the assault one of an aggravated nature within the words of this section, and that the conviction must be quashed. n. A conviction before justices, under 24 & 25 Vict. c. 100, s. 43, should shew facts to justify the sentence, and shew and allege that the offence was of so aggravated a nature that it could not be adequately dealt with under s. 42. Mice, In re, 7 Ir. E., C. L. 74. ' Amounting to Felony.]— A party was con- victed summarily by two justices for an assault. The act appeared to have been done with intent to commit an unnatural offence, or to solicit such offence, but not to have been attended with violence. A certiorari was moved for, on the ground that the offence, if committed, was within 9 Geo. 4, c. 31, s. 29, which prevents justifies from convicting where an attempt to commit felony appears. The court refused to interfere, as no excess of jurisdiction appeared on the face of the conviction, and the evidence, of which the magistrates were the judges, did not clearly shew an intention to commit felony. Atwn., 1 B. &Ad. 382. Fines— Before 24 & 25 Vict. c. 100, s. 42.] By 9 Geo. 4, c. 31, s. 27, power was given to two justices, in cases of assault, to impose upon the offender a fine not exceeding U., " to be paid to some one of the overseers of the poor, or to some other officer of the parish, township, or place in which the offence shall have been committed, to be by such overseer or officer paid over to the use of the general rate of the county, riding, or division in which the parish, township, or place shall be situate ; " and s. 35 provided that the conviction might be drawn up in a given form, or in any other form of words to the same effect : — Held, that a conviction by which the penalty was ordered to be paid " to the treasurer of the county of C, in which the offence was committed, to be by him applied according to the directions of the statute," or the party in defaiilt to be imprisoned, for two months, was bad, and that the justices were liable in trespass for the imprisonment of the party under it. ChaddocJi v. Wilbraham, 5 C. B. 645 ; 3 New Sess. Cas. 227 ; 17 L. J., M. C. 79 ; 12 Jur. 136. A. was summoned under 9 Geo. 4, c. 31, ss. 27, 33, for an assault. He did not appear, and the justices, npon proof of sei-vicc, heard the case and convicted A. The conviction was drawn up in the form given in s. 35, and by it A. was ad- judged to forfeit and pay 21. 10s. and 11*. Sd. for costs ; and, in default of immediate payment, to be imprisoned for six weeks, unless the sum should be sooner paid ; and the conviction directed that the 21. 10s. should be paid to one of the overseers of the parish within which the offence was committed, and the lis. 6d. to the party aggrieved. And directly thereafter, no payment being made, the justices, in the absence of A., and without further summons, issued a warrant of commitment for default of payment ; — Held, that the commitment was legal. Arrwld V. Dimsdale, 2 El. & Bl. 580 ; 22 L. J., M. C. 161 : 17 Jur. 1157. Requiring Becognizances.] — An information was laid against a pei-son for an assault and battery, and a summons issued against him for that offence. At the hearing, the justices dis- missed the information, and gave him a certi- ficate, but they ordered him, in respect of the charge, to enter into his own recognizance in 50Z. to keep the peace for six months : — Held, that, notwithstanding the justices dismissed the in- formation, they were legally justified in requiring a recognizance to keep the peace. Baris, Ex •parte, 24 L. T. 547. 10. Teial. Conviction for Misdemeanor on Trial for Felony.] —By 14 & 15 Vict. c. 19, s. 5, if, ■upon tlie trial of any indictment for any felony, except murder or manslavgkter, wJwre the in- dictment alleges that the defendant did cut, stall or loound any person, the jury shall he satisfied that tlw defendant is guilty of the cutting, stabbing or wounding, charged in the indictment, hut are not satisfied that the defendant is guilty of the felony charged, the jury may acquit the defendant of such felony, and find him guilty of milaufully cutting, stabbing or wounding, and the defendant shall be liable to be punished in the same manner as if convicted upo7i, an indict- ment for the misdemeanor of cutting, stabbing or wounding. Prisoner must Plead to Felony.] — Where a prisoner is indicted for feloniously cutting and wounding, he will not be permitted to plead guilty to a common assault merely. He must plead to the felony, and if no evidence of the felony is offered he may be acquitted of the felony and found guilty of the assault on his own confession. Reg. v. Caherte, 3 C. & K. 201. When Verdict for Unlawfully Wounding is Sustainable.] — A., an under servant, who had lost his right arm, was beaten by B., an upper servant, for misconduct. A. took out a knife and wounded B.:— Held, on a trial for feloniously Digitized by Microsoft® 511 CEIMINAL LAW— Murder, Assaults, die. wounding, that if A. did this in seli-defence only he ought to be acquitted ; but if A. used more violence than was necessary for that purpose he ought to be convicted of the misdemeanor of wounding only under 11 & 15 Vict. c. 12, s. 5 Meg V. Mimtley, 3 C. & K. 142. The statute U & 15 Vict. c. 19, s. 5, only applies where the indictment alleges a felonious cutting, stabbing or wounding. Upon an indict- ment charging a felonious shooting with intent to do grievous bodily harm, and doing grievous bodily hai-m with intent to do grievous bodily harai, it is not competent for the jury to convict of unlawfully wounding, lien. v. Miller, 14 Cox, C. C. 356. To support a verdict of guilty of unlawfully wounding, under 14 & 15 Vict. c. 19, s. 5, the act must be done as well maliciously as unlawfully. Meg. V. Ward, 1 L. H., C. C. 356 ; 41 L. J., M. C. 6d ; 26 L. T. 43 ; 20 W. K. 392 ; 12 Cox, 0. C. 123. A man, who was jealous of persons going in pui'suit of wild-fowl, fired, while the prosecutor was on the water in his punt in pui'suit of wild- fowl about twenty-five yards off, to frighten and deter him from again coming into the creek for the purpose of fowling. As the prosecutor slewed his punt round, he was struck by the shots from the prisoner's gun ; but if he had not slewed the boat round the shot would not have struck him : — Held, that a conviction for unlawfully and maliciously wounding the prosecutor under 14 & 15 Vict. c. 99, s. a, was supported by the evidence. lb. On what Count Verdict Entered.] — To an in- dictment for stabbing, was added a count for a common assault. The trial had considerably advanced before this was discovered, and the judge allowed the case to proceed, and left it to the jury without noticing the count for the common assault. The jury returned a verdict of guilty, which was entered on the count for stabbing with intent to do grievous bodily hai-m. The judges held the conviction light. Meg. v. Jones, 8 C. & P. 776 ; 2 M. C. C. 94. An indictment contained counts charging an assault, and unlawfully and maliciously inflict- ing grievous bodily harm, and also a count for a common assault. At the trial evidence was given that the prisoner inflicted serious bodily injuries upon the prosecutor. The juiy found the prisoner guilty of an aggravated assault without premeditation, and that it was done under the influence of passion : — Held, that the verdict was rightly entered on the record on the counts charging an assault and unlawfully and maliciously inflicting grievous bodily harm. Meg. V. Sparrow, 8 Cox, 0. 0. 393 ; Bell, C. C. 298 ; 30 L. J., M. C. 43 ; 6 Jur., N. S. 1122 ; 3 L. T. 445 ; 9 W. E. 58. On what Indictments Conviction for Common Assault Sustainable.] — Upon a countfor assault- ing, beating, wounding, and occasioning actual bodily harm against the statute, the prisoner may be convicted of a common assault. Meg. v. Oliver, 8 Cox, C. C. 384 ; Bell, C. C. 287 ; 30 L. J., M. C. 12 ; 6 Jur., N. S. 1214 ; 3 L. T. 311 ; 9 W. E. 60. Upon an indictment charging the defendants in the fii-st count with inflicting gi-ievous bodily harm : in the second count with unlawfully and Digitized by microsoft® 512 maliciously cutting, stabbing and wounding; and in the third count with assaulting and occasioning actual bodily harm ; the jury re- turned a verdict of guilty of a common assault. The chairman declined to take that verdict, on the ground that a common assault was not included in the indictment, and told the jury to reconsider their verdict. The jury then found the defendants guilty, and a verdict was entered of guilty of an assault occasioning bodily harm, whereupon the chaii-man sentenced the prisoneis : — Held, that the first verdict ought to have been taken, and that the second ought not, and that the prisoners ought not to undergo the sentence ; that there had been a mis-trial, and that a venire de novo should issue. Meg. v. Yeadon, 9 Cox, 0. C. 91 ; L. & C. 81 ; 31 L. J., M. C. 70 ; 7 Jur., N. S. 1128 ; 5 L. T. 329 ; 10 W. E. 64. If, on an indictment for abduction on 9 Geo. 4, c. 31, s. 19, the juiy was not satisfied that the prisoner was actuated by motives of lucre, and they were satisfied that he used force to the person of the lady in taking her away, and that he took her away against her consent, they might convict him of an assault under 7 Will. 4 & 1 Vict. e. 85, s. 11. Meg. v. Bmi-att, 9 C. & P. 387. An indictment charged the prisoner in a first count with unlawfully and maliciously wound- ing, and in the second count with unlawfully and maliciously inflicting grievous bodily harm. The jury found the prisoner guilty of an assault : — Held, that he could be properly convicted of an assault on the indictment under 24 & 25 Vict. c. 100, s. 20, as the offences charged were mis- demeanors, and.each of them necessarily included the lesser misdemeanor of an assault. Meg. v. Taylor, Meg. v. Canwell, 1 L. E., C. C. 194 ; 20 L. T. 402 ; 17 W. E. 623 ; 11 Cox, C. C. 261. Two were indicted, under 24 & 25 Vict. c. 96, s. 42, for feloniously assaulting the prosecutor with intent to rob him. The jury found them guilty of an assault, but negatived the intent charged : — Held, that they could not, upon this indict- ment and finding, be convicted of a common assault. Meg. v. Wilkes, 12 Cox, C. C. 240. A. presented a loaded pistol at B., but was prevented from pulling the trigger : — Held, that A. could be properly convicted of this assault, on an indictment for feloniously attempting to discharge loaded arms at B. Meg. v. St. George, 9 C. & P. 483. B. was indicted, with three others, for an assault with intent to do some giievous bodily harm. It was proved that he, with the other prisoners, had assaulted the prosecutor, and afterwards they had returned together and picked up some stones. Then B. withdrew, and the other prisoners threw the stones and wounded the prosecutor. The jury found the three prisoners who threw the stones guilty of the felony, and B. guilty only of a common assault :— Held, that B. was rightly convicted. Meg. V. Philiqjs, 3 Cox, C. C. 225. In Cases of Eobbery.]— &c Eobbeet. Jury Discharged— Prisoner Pleading Guilty to Common Assault.]— Ou an indictment for a felonious assault, the jury, being unable to agree as to the felonious intent, was discharged by arrangement, in order that the prisoner might plead guilty to a common assault with a view 513 to compensation. C. 8. CEIMINAIi IjA^— Murder, Assaults, &c. 514 Ueg. V. Moxlntrgh, 12 Cox, C. C. ABORTION, ATTEMPTS TO PROCURE. Statute.]— By 2i & 25 Vict. c. 100, s. 58, i-ccry woman, 'being with child, who, ivith intnit to procure her oion miscarriarje, shall unlawfully administer to herself any poison or other noxious thing, or shall unlaufuUy use any instrument or other means wliatsoever with the like intent, and whosoever, with intent to pro- cure the miscarriage of any woman, whether she he or he not with child, shall unlaufully administer to lier, or cause to he tahen, hy her, any poison or other no.vious thing, or shall un- lawfully use any instrument or other means whatsoever, with the like intent, shall le guilty of felony, and, hcing convicted thereof , shall ie liable, at tlie discretion of the court, to be hept in penal servitude for life or for any term not less than five years (27 & 28 Vict. c. 47), or to he imprisoned for any term not exceeding two years, icith or without hard labour, and with or loithout solitary continement. (^Former pro- risions, 7 WiU. i & fvict. c. 85, s. 6 ; 9 Geo. 4, c. 31, s. 13. By 9 Geo. 4, c. 31, the 43 Geo. 3, c. 58, Zord Ellenborotigh's Act, was ivpealed.') By s. 59, whosoever shall unlawfully supply or 2Wocure any pioison or other noxious thing, or any instiniment or thing whatsoever, hnotving that the same is intended to be vnlawfully used or employed, with intent to procure the miscar- riage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of tJw court, to be kept in penal servitude for the term of five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, loith or without hard labour. What is a Noxious Thing.] — A small quan- tity of savin, not sufficient to do more than produce a little disturbance in the stomach, was not a noxious thing within 7 Will. 4 & 1 Vict, c. 85, s. 6. Meg. v. Perry, 2 Cox, C. C. 223. Upon an indictment, under 24 & 25 Vict. c. 100, s. 59, for supplying a certain noxious thing, knowing that the same is intended to be used with intent to procure miscarriage, it is neces- sary to prove that the thing supplied is noxious. The supplying an innoxious drug, whatever may be the intent of the person supplying it, is not an offence against that enactment. Meg. v. Isaacs, L. & C. 220 ; 9 Cox, C. C. 228 ; 32 L. J., M. C. 52 ; 9 Jur., N. S. 212 ; 7 L. T., 365 ; 11 W. B.95. A man and woman were jointly indicted for feloniously administering to C. a noxious thing to the jurors unknown, with intent to procure miscarriage. C. being in the family way, went to the male prisoner, who said he would give her some stuif to put her right, and gave her a light-coloured medicine, and told her to talte doses of it till she became in jjain. She did so, and it made her ill. She then went to him again, and he said the safest course would be to get her a place to go to. He told her that he had found a place for her at L., and gave her some more of the stuff, which he said would take effect when she got there. They went together to L. and met the female prisoner, who said she had been down to the station several times the day before to meet them. C. then began to feel pain, and told the female prisoner of it, where- upon the male prisoner told the latter what he had given C. They all went home to the female prisoner's, and the male prisoner then gave C. another bottle of similar stuff in the female prisoner's presence, and told her to take it like the other. She did so, and became very ill, and next day had a miscarriage, the female prisoner attending on her : — Held, that there was evi- dence that the stuff administered was a noxious thing within 24 & 25 Vict. c. 100, s. 58. Beg. v. Mollis, 28 L. T. 455. The prisoner was convicted, under 24 & 25 Vict. c. 100, o. 58, of having feloniously and unlawfully caused to be taken by E. V. a certain " noxious thing," to wit, half an ounce of oil of juniper, with intent to procure the miscarriage of the said E. V. It was proved that quantities of oil of juniper considerably less than half an ounce are commonly taken medicinally without any bad effect, but that a half ounce produces ill effects, and is to a pregnant woman danger- ous. The question reserved was whether there was evidence that the half ounce of oil of juniper was a " noxious thing " within the statute : — Held, that there was evidence that it was a " noxious thing " within the statute, and that the conviction was right. Eeg. v. Cramp, 5 Q. B. D. 307 ; 49 L. J., M. C. 44 ; 42 L. T. 442 ; 28 W. K. 701 ; 44 J. P. 411 ; 14 Cox, C. C. 401. See also per Denman, J., on the trial of the case, 14 Cox, C. C. 390. Causing to be Taken.] — If A. procures poison and delivers it to B., both intending that B. should take it for the purpose of procuring abortion, and B. afterwards takes it with that intent in the absence of A., A. might be con- victed under 7 Will. 4 & 1 Vict. c. 85, s. 6, of causing it to be taken. Eeg. v. Wilsoti. Dears. & B. C. C. 127 ; 7 Cox, C. C. 190 ; 26 L. J., M. C. 18; 2 Jur., N. S. 1146. The prisoner, in a conversation with a woman who was pregnant, told her that he knew of something that would get rid of her chEd. On being asked what it was, he said it was savin. He afterwards brought the woman some savin, and gave her directions how to take it. She took the savin accordingly, and the prisoner called from time to time to inquire the effect. The prisoner also made up into pills a drug which the woman had obtained at his request. After taking the savin and the pills the woman became and continued very ill till she was confined : — Held, a causing to be taken within 7 Will. 4 & 1 Vict. c. 85, s. 6. Meg. v. Farrow, Dears. & B. C. C. 164 ; 3 Jur., N. S. 167. Intention to Procure Abortion.] — In order to constitute the offence of supplying a noxious thing, with the intention that it shall be em- ployed in procuring abortion within 24 & 25 Vict, c. 100, s. 59, it is not necessary that the intention of employing it should exist in the mind of any other person than the pereon supplying it. Meg. V. milman, L. & C. 343 ; 9 Cox, C. C. 386 ; 33 L. J., M. C. 60 ; 9 L. T. 518 ; 12 W. R. 111. Woman not Pregnant.] — Supplying a noxious thing with the intent that it shall be used by a certain woman to procure abortion is a misde- meanor within the 24 & 25 Vict. e. 100, s. 59, although the woman for whom it was intended Digitized by Microsoft® 515 CEIMINAL 1,AW— Murder, Assaults, dc. 516 by him was not pregnant. Meg. v. Titley, 14 Cox, C. C. 502. An indictment under 7 Will. 4 & 1 Vict. c. 85, s. 6, for using an instrument with intent to procure miscarriage : — Held, immaterial whether or not the woman was pregnant at the time of the instrument being used. Reg. v. Goodhall or GooclcUld, 1 Den. C. C. 187 ; 2 C. & K, 294. Cases under Sepealed Statute of 43 Creo. 3, c. 58, s. 1.] — The expression " quiclc with child," in this statute meant when the woman felt the child move within her. Goldsmith's case, 3 Camp. 76. Or, having conceived. Meg. v. Wyolierley, 8 C. & P. 262. Or, feeling the child alive and quick within, at whatever time the foetus might have a separate existence. Rex v. Philips, 3 Camp. 77. To constitute the ofEence of administering poison or other noxious substance, under the same statute, some of the poison or noxious sub- stance must have been talien by or applied to the woman. Re.i- v. Cadman, 1 M. C. C. 114. On an indictment for administering a drug to a woman to procure abortion, she not being quick with child ; if it appeared that she was not with child at all, the prisoner was acquitted, although it appeared that he thought that she was with child, and gave her the drug with an intent to destroy such child. Rex v. Sovddei; 3 C. & P. 605 ; 1 M. C. G. 216. See snpra. Corroborative Evidence — ^What is.] — There being no other evidence but that of the woman that the prisoner incited her to take the excessive doses of a noxious thing, except that her father accused him of giving his daughter such things " to produce abortion," and that he did not deny it:— Held, that this W3,s some corroborative evidence, even assuming the woman to be in the position of an accomplice requiring corro- boration. Beg. V. Ci-amp, 14 Cox, C. C. 390. D. RAPE AND ASSAULT ON WOMEN AND CHILDREN. 1. Rape. 2. Carnally Alnising Children, 524. 3. Indecent Assaults on Females, 528. 4. Proeuring Defilemmt of Girl under Twenty-one, 529. 1. Eapb. a. Statute. By 24 & 25 Vict. c. 100, s. 48, whosoever shall le conrictcd of the crime of rape shall Ugmlty of felony, and icing eomictcd thereof shM be liable, at tlie discretion of the court, to he hept in penal servitude for life, or for any term not less tlian Jive years (27 & 28 Vict. c. 47), o/- to be imprisoned for any term not exceeding two years, with or withont hard labmir. Bv s 63, wJie7iever, itpon the trrnl for any offence punishable under this act it may be necessary to prove canal hnowledge, H shall not be necessary to prove the actual emisswn of seed in order to constitute a carnal knowledge, but the cardial hnowledge shall be deemed com- plete upon proof of penetrat^m. only. ^Former i9»m-Mro», 9 Geo. 4, c. 31, s. 18.) ■^ Digitized by b. Who Capable of Committing'. A boy under fourteen cannot be convicted of an assault with intent to commit a rape. Rex V. Mdershaw, 3 'C. & P. 366. And if he is under that age, no evidence is ad- missible to shew that, in point of fact, he could commit the ofEence of rape. Reg. v. Phillips, 8 C. & P. 736 ; S. P., Reg. v. Jorda,n, 9 C. & P. 118. c. TTpou whom Committed. Idiot.] — The prisoner had carnal knowledge of a girl of thirteen by force. She was incapable of giving consent from defect of understanding, and it was not shewn that the act was done against her will : — Held, that he was properly convicted of rape. Reg. v. Fletcher, Bell, C. C. 63 ; 8 Cox, C. C. 131 ; 28 L. J., M. C. 85 ; 5 Jur., N. B. 179 ; 7 W. K. 204. The mere fact of connexion with an idiot girl capable of recognizing and describing the prisoner, but incapable, so far as her idiotcy rendered her so, of expressing dissent or consent, and therefore without her consent, is not suffi- cient evidence of the commission of a rape upon her to be left to a jury. Reg. v. Fletcher, 1 L. R., C. C. 39 ; 35 L. J., M. C. 172 ; 12 Jur., N. S. 505 ; 14 L. T, 573 ; 14 W. E. 774 ; 10 Cox, C. C. 248. Upon the trial of an indictment for rape upon an idiot girl, the proper direction to the jury is that if they are satisfied that the girl was in such a state of idiotcy as to be incapable of expressing either consent or dissent, and that the prisoner had connexion with her without her consent, it is their duty to find him guilty. Reg. v. Bar- ratt, 2 L. E., C. C. 81 ; 43 L. J., M. C. 7 ; 29 L. T. 409 ; 22 W. E. 136 ; 12 Cox, C. C. 498. The cases of Reg. v. Fletcher (Bell, C. C. 63), and of Reg. v. Fletcher (1 L. E.,C. C. 39) are not adverae to one another. The principle is pro- perly laid down in the first case, and the second case was only a decision to the effect that there was not that requisite testimony of want of assent to justify leaving the case to the jury. lb. Infant.] — Though a child under ten yeaiB of age cannot legally consent to a rape upon her, yet she may consent to the attempt to commit it ; and such an attempt, with her consent, would not be an assault. Where, therefore, a child is too young to know the nature of an oath, her evidence as to a rape upon her cannot be taken, and marks of violence on her private parts can- not be presumed to have been done against her consent. Reg. v. Cochburn, 3 Cox, C. C. 543. d. The Offence. Consent— What is— Non-resistance owing to Mistake.]— To constitute a rape on a woman conscious and capable of giving consent at the time of connexion, there must be an actual re- sistance of the will. Non-resistanco to connexion, permitted under a misapprehension induced by the conduct of the man, by a woman conscious and capable of consenting, amounts to consent, though unintentional, and prevents the offence amounting to a rape. ij^^. v. Barrow 1 L. E C C 156 ; 38 L. J., M. C. 20 ; 19 L. 1. 293 , 17 W E. 102 ; 11 Cox, C. C. 191. A woman, with her baby m her arms, was Ivinff in bed between sleeping and wakmg, and her husband was asleep beside her. She was Microsoft® 617 CRIMINAL L,A^— Murder, Assaults, dec. 518 completely awakened by a man having connexion with her, and pushing the baby aside. Almost directly she was completely awakened she found that the man was not her husband, and awoke her husband : — Held, that a conviction for a rape upon these facts could not be sustained. Il>. Having carnal knowledge of a mamed woman, under circumstances which induced her to" sup- pose it is her husband, does not amount to a rape, liex v. Jaelison, R. &; R. C. C. 47. If a man has connexion with a woman, she consenting under the belief that it is her husband, this is not a rape, though it is a fraud on the part of the man ; but it is an assault ; and the fact that there was no resistance on her part makes no difference, as the fraud is suffi- cient to make it an assault. Reg. v. Williams, 8 C. & P. 286 ; S. P., Reg. v. Saunders, 8 C. & P. 265. A, got into the bed of a married woman, in- tending if he could to have connexion with her by passing for her husband, but not by force. She supposing him to be her husband allowed him to have connexion with her : — Held, that he was not guilty of rape. Reg. v. Clarhe, Dears. C. C. 397 ; 3 C. L. R. 86 ; 6 Cox, C. 0. 412 ; 24 L. J., M. C. 25 ; 18 Jur. 1059 ; S. P., Reg. v. Sweenie, 8 Cox, C. C. 223. To constitute rape, it is not necessary that the connexion with the woman should be had against her will ; it is sufficient if it is without her con- sent. Reg. V. i'lctchev, Bell, C. C. 63 ; 8 Cox, C. C. 131 ; 28 L. J., M. C. 85 ; 5 Jur., N. S. 179 ; 7 W. R. 204. Upon an indictment for rape, there must be some evidence that the act was without the con- sent of the woman, even where she is an idiot. In such a case, where there were no appearances of force having been used to the woman, and the only evidence of the connexion was the prisoner's own admission, coupled with the statement that it was done with her consent : — Held, that there was no evidence for the jury. Reg. v. Fletcher, 1 L. R., C. C. 39 ; 35 L. J., M. C. 172 ; 12 Jur., N. S. 505 ; 14 L. T. 573 ; 14 W. R. 774 : 10 Cox, C. C. 248. The rule is, that the connexion must be with- out the consent of the person alleged to have been ravished. Reg. v. Jones, 4 L. T., 154. Three boys, under fourteen years of age, were indicted for assaulting a girl nine years of age. It was proved that each of the boys had had con- nexion with her. The jaiy returned as their verdict, "that the prisoners were guilty, the child being an assenting party ; but that from her tender years she did not know what she was about : " — Held, upon this finding, a verdict of acquittal must be entered. Reg. v. Read, 2 C. & K. 957 ; 1 Den. C. C. 377 ; 3 Cox, C. C. 266 ; T. & M. 52 ; 3 New Sess. Cas. 405 ; 19 L, J., M. C. 88 ; 13 Jur. 68. Force used — Consent in some degree given.] — If in a case of rape the jury is satisfied that non-resistance on the part of the prosecutrix proceeded merely from her being overpowered by actual force, or from her not being able, from want of strength, to resist any longer, or that, from the number of persons attacking her, she considered resistance dangerous and absolutely useless, the jury ought to convict the prisoner of the capital charge ; but if they think, from the whole of the circumstances, that although, when the prosecutrix was first laid hold of, it was against her will, yet that she did not resist afterwards, because she in some degree consented to what was afterwards done to her, they ought to acquit the prisoners of the capital charge, and convict them of an assault only. Reg. v. Mallett, 9 C. & P. 748. The jury should be satisfied, not merely that the act was in some degree against the will of the woman, but that she was, by physical violence or terror, fairly overcome, and forced against her will, she resisting as much as she could, and so as to make the prisoner see and know that she was really resisting to the utmost. Reg. V. Rudland, 4 F. & F. 495. Eape by rraiid.]=^If a man has or attempts to have connexion with a woman while she is asleep, it is no defence that she did not resist, as she is incapable of resisting. The man can, therefore, be found guilty of a rape, or of an attempt to commit a rape. Reg. v. Mayers, 12 Cox, C. C. 311. While a manied woman was asleep in bed with her husband, the prisoner got into the bed and proceeded to have connexion with her, she being then asleep. When she awoke, she at first thought he was her husband, but on hearing him speak, and seeing her husband at her side, she flung the prisoner ofE, and called out to her husband, when the prisoner ran away : — Held, he was guilty of the crime of rape. Reg. v. Young, 38 L. T. 540. See also cases supra. Consent given through Ignorance oi Surprise.] — A man, who by fraudulently and falsely pre- tending to give medical advice to a female patient, and in pursuance of such advice to per- fonn a surgical operation upon her, procures her submission to his medical treatment of her, under colour of which he has carnal connexion with her, she believing all the while that she was undergoing medical treatment, is guilty of a rape. Reg. v. Flattery, 2 Q. B. D. 410 ; 46 L. J., M. C. 130 ; 36 L. T. 32 ; 25 W. E. 398 ; 13 Cox, C. C. 388. If a surgeon professing to take steps to cure a girl of a complaint has carnal connexion with her, and she is ignorant of the nature of his act, and makes no resistance, solely from a bong, fide belief that he is, as he represents, treating her medically, with a view to her cure, his conduct in point of law amounts to an assault. Reg. v. Case, 1 Den. C. C. 580 ; 4 Cox, C. C. 220 ; T. & M. 318 ; 4 New Sess. Cas. 347 ; 19 L. J., M. C. 174 ; 14 Jur. 489. On an indictment for an assault with intent to commit a rape, the prosecutrix stated, that the defendant, her medical man, being in her bed- room, directed her to lean forward on a bed, that he might apply an injection ; she did so, and the injection having been applied, she found the defendant was proceeding to have a connexion with her, upon which she instantly raised her- self, and ran out of the room. She stated that the defendant had penetrated her pei-aon a little : — Held, that, if it had appeared that the defen- dant had intended to have had connexion with the prosecutrix by force, the complete offence of rape would, upon this evidence, have been proved, but that the ' thus getting possession of the person of the woman by surprise, was not an assault with intent to commit a rape, but was an assault. Reg. v. Stanton, 1 C. & K. 415. Digitized by Microsoft® 519 CEIMINAL ILAW— Murder, Assaults, dc. 520 Making Woman Drunk.] — On a trial for a rape, it was proved that the prisoner made the prosecutrix drunk, and that when she was in a state of insensibility he took advantage of it and violated her. The jury convicted the prisoner, and found that he gave her liquor for the purpose of exciting her, and not with the intention of rendering her insensible, and then having sexual intercoui'se with her : — Held, that ho was properly convicted of rape. Bet;, v. Complin, 1 C. & K. 746 ; 1 Den. C. C. 89. Submission because of Fear.] — Where a father has established a kind of reign of terror in his family, and his daughter, under the influ- ence of dread and terror, remains passive while he has connexion with her, he may be found guilty of rape. Reg. v. Jones, 4 L. T. 15i. Penetration — What sufficient.] — Since9Geo.4, c. 31, s. 18, the only question for the jury is, whether the private parts of the man did or not enter into the person of the woman. Therefore, though it appears from the evidence, beyond all possibility of doubt, that the party was disturbed immediately after penetration, and before the completion of his purpose, yet he must be found guilty of having committed the complete offence of rape. Reg. v. Allen, 9 C. & P. Zl. The slightest penetration is sufficient, even though it does not break the hymen. Reg. v. Russen, 1 East, P. C. 438. Penetration, short of rupturing the hymen, is sufficient to constitute the crime of rape. Reg. V. Sugheg, 2 il. C. C. 190 ; <) C. & P. 752. Though it is not necessary, in oixler to com- plete the offence of rape, that the hymen should be ruptured, provided that it is clearly proved that there was penetration ; yet where that which is so very near to the entrance has not been ruptured, it is very difficult to come to the conclusion that there has been penetration so as to sustain the charge. Reg. v. MRue, 8 C. & P. 641. To constitute penetration on a charge of this •offence, the parts of the male must be inserted in those of the female ; but, as matter of law, it is not essential that the hymen should be rup- tured. Reg. V. Jordan, 9 C. & P. 118. Emission Unnecessary.] — Proof of injectio seminis, as well as penetration, was essential in an indictment for rape, before 9 Geo. 4, c. 31. Rex V. mil, 1 East, P. C. 439 ; ,S'. P., Rex v. Cave, 1 East, P. C. 438 ; Re.r v. Bvrrows, B. & R. C. C. .519 ; Re-r v. Cozins, 6 C. & P. 351. Since 9 Geo. 4, c. 31, the offence of rape is made out by proof of penetration only ; and m such case a prisoner must be found guilty, although there was no emission, and although he did not withdraw himself merely because he was satis- fied. Rex V. Jennings, 4 0. & P. 249 ; 1 Lewm, 93 ■ S -P., Re-r v. Reelispear, 1 M. O. O. 342. ' And see 24 & 25 Vict. c. 100, s. 63, snjna. Attempt to Commit.]— In order to convict on a charge of assault with intent to commit a rape, the iury must be satisfied not only that the prisoner intended to gratify his passions on the person of the prosecutrix, but that he intended to do so at all events, and notwithstanding any resistance on her part. Rex v. Lloyd, 7 O. & i-. 318; Digitized by Microsoft® e. Indictment. Form and Evidence of.]— An indictment need not contain an express allegation of an assault. Reg. V. Allen, 2 M. C. C. 179 ; 9 C. & P. 521. A. was convicted on an indictment, which charged that he "in and upon E. P.," "feloni- ously and violently did make (omitting the words 'an assault,')" and her, then and there, and against her will, violently and feloniously did ravish and carnally know ; — Held, that the omission of the words " an assault," was no ground for arresting the judgment. ZJ. After an acquittal upon an indictment for rape, and for an assault with intent to commit a rape, the prisoner may be indicted for a common assault, upon which the prosecutrix can only in chief be asked so much as to elicit what would amount to a common assault ; but the prisoner's counsel may, on cross-examination, enter into the original charge. Reg. v. Dvngey, 4 P. 4; F. 99. On an indictment charging a misdemeanor for an assault in attempting to commit a rape on A. B., with a count for an assault of the same nature on a different day on C. D., it is competent to the prosecutor, not only in law, but by ordinary prac- tice, to give evidence of both assaults. Reg. v. Davies, 5 Cox, C. 0. 328. What Parties Indictable.] — A count charging A. with a rape as a principal in the first degree, and B. as a principal in the second degree, may be joined with another count, charging B. as principal in the first degree, and A. as principal in the second degi'ee. Rex v. Oray, 7 C. & P. 164. A general conviction of a prisoner chargedboth as principal in the first degree, and as an aider and abettor of other men in rape, is valid on the count charging him as principal. Rex v. Follies, 1 M. C. C. 354. An indictment is good which charges that A. committed a rape, and that B. was present, aid- ing and assisting him in the commission of the felony. Reg. v. Crisliam, Car. & M. 187. In such a case the party aiding may be charged either, as he was in law, a principal in the first degree, or as he was in fact, a principal in the second degree. Il>. t. Trial. Election.] — On an indictment for rape charg- ing the prisoner both as principal in the fii'St degree, and as an aider and an abettor of other men in the rape, evidence may be given of several rapes on the same woman, at the same time, by the prisoner and other men, each assist- 'ing the other in turn, without putting the prose- cutrix to elect on which count to proceed. Rex V. Folluis, 1 M. C. C. 354. Finding of Jury, on what Counts- Applying.] —A first count charged an assault with intent to ravish; the second, a common assault. 'The record went on to state, that the jury found the defendant guilty of the misdemeanor and offence in the indictment specified, in manner and form as by the indictment is alleged against h™, and the judgment was, imprisonment and hard la- bour :-HeId, that the word " misdemeanor was nomen coUectivum, and that the finding of the jury was in effect, that the defendant was guilty of ^he whole matter charged, and that the ]udg- 521 CRIMINAL TuAW— Murder, Assaults, &c. 522 ment was therefore warranted by the verdict. Hex V. Powell, 2 B. & Ad. 75. Verdict — ^Attempt to Commit.] — By 14 & 15 Vict. c. 100, s. 9, upon an indictment for a rape a prisoner may lie convicted of an attempt to commit the same, and will he liable to the same consefj/nences as if cliarged and convicted of the attempt. An indictment charged H. with rape, and W. with aiding and abetting in the rape. The jury found H. and W. guilty of misdemeanor ; H. of attempting to commit a rape, and W. of aiding H. in the attempt. It was contended that this ver- dict amounted to an acquittal of W., as the case did not fall within 14 & 15 Vict. c. 100, s. 9, by which a person indicted for a crime may be found guilty of an attempt to commit the crime. The objection was overruled : — Held, that the conviction ought to be affirmed. Scg. v. Hap- good, 1 L. E., C. C. 221 ; 39 L. J., M. C. 82 ; 21 L. T. 678 ; 18 W. K. 356. Assault — Evidence of Bape.] — ^Before 14 & 15 Vict. c. 100, s. 12, a defendant would be acquitted on an indictment for an assault with intent to ravish, if the evidence amounted to proof of an actual rape. Bex v. Sarmwood, 1 East, P. C. 411. g'. Evidence. Sufficiency — No Corroboration of Prosecutrix.] — A prisoner may be convicted of rape upon the unsupported evidence of an infant under years of discretion, if the jury is satisfied that the evidence is such as to leave no reasonable doubt of his guilt. Anon., 1 Euss. C. & M. 932. Admissibility of Complaints made in Prisoner's Absence.] — The particulars of the complaint made by a female on whom a rape has been committed are not receivable in evidence, nor even her statement as to the place of the com- mission of the crime ; all that can be asked on examination in chief being the fact of her having made such complaint, and the nature of it. Req. V. Mercer, 6 Jur. 243. On the trial of an indictment for a rape, it appeared that the person alleged to have been ravished, but who was since dead, had come home evidently suffering from recent violence ; it was proved, that on her return home she made a statement as to the injury she had received, and named the persons who had committed it : — Held, that the particulars of this statement could not be given in evidence as independent evidence, to shew who were the persons who committed the ofEence ; and that statements of this kind were only admissible to confirm the evidence of the prosecutrix, by shewing that she made a recent complaint of the injury she had received. Il,eg. v. Megson, 9 C. & P. 420. Where the deposition of the prosecutrix taken before the magistrate was not proved, and she was not at the trial, evidence of complaints made by her recently after the outrage was rejected ; no such evidence is receivable as con- firmatorv evidence only. Req. v. GuttrUlqe, 9 0. & P. 471. A person to whom the prosecutrix made a complaint very recently after the ofEence, as she was on her way home, may be asked whether she named a person as having committed the ofience, but not whose name she mentioned. Heg. v. Oshorne, Car. & M. 622. The fact of the prosecutrix making complaint of the outrage, and the state in which she was at the time of making the complaint, are evidence. Rex V. Clarlie, 2 Stark. 241. On a trial for rape, or for an attempt to com- mit a rape, the female assaulted may be con- firmed by proof that she recently, after the alleged outrage, made a complaint, but the particulars of what she said cannot be asked in chief of the confirming witness, but may in cross-examination. Reg. v. Walltsr, 2 M. & Kob. 212. Not only what the prosecutrix said imme- diately after the ocSasion, but what was said in auswfer to lier, is evidence. Reg. v. Eyre, 2 F. & F. 579. Where a man is charged with committing a rape, the full particulai-s of the complaint the woman made against him to other persons in his absence some time after the alleged offence may be given in evidence. Reg. v. Wood, 14 Cox, C. C. 46. Duty of Prosecution.] — On a trial for a rape, the prosecutrix, a servant, stated that she made almost immediate complaint to her mistress, and that on the next day a washei-- woman washed her clothes, on which was blood. Neither the mistress nor the washerwoman was under recognizances to give evidence, nor were their names on the back of the indictment, but they were at the assizes attending as witnesses for the prisoner. The judge directed that both the mistress and the washerwoman should be called by the counsel for the prosecution, but allowed the counsel for the prosecution every-latitude in their examination. Reg. v. Stroner, 1 C. & K 650. To Impeach Character of the Prosecutrix.] — On the trial of an indictment for a rape, the prosecutrix may be asked whether, previously to the commission of the alleged offence, the prisoner had not had intercourse with her by her own consent. Rex v. Martin, 6 C. & P 562. Under an indictment for an assault to commit a rape, the defendant may impeach the prosecu- trix's character for chastity by general, but not by particular, evidence. licx v. Clarke, 2 Stark 241. But the character of the prosecutrix as to general chastity may be impeached by general evidence. II. The prisoner may give evidence that the woman bore a notoriously bad character for want of chastity and common decency, or that she had before been criminally connected with the prisoner ; but he cannot shew that she had a criminal connexion with other persons Rex V. Sodgson, E. & E. C. C. 211. Nor is the woman obliged to answer as to the latter fact. Ih. On the trial of an indictment for a rape, held, that the prisoner's counsel might ask the prose- cutrix the following questions, with a view to contradict her : " Were you not, on , (since the time of the alleged offence,) walking in the High-street at Oxford to look out for men ? " " Were you not, on , (since the time of the alleged offence,) walking in the High-street Digitized by Microsoft® 523 CRIMINAL "LAM— Murder, Assaults, itc. 524 with, a woman reported to be a common prosti- tute ? " Rose V. Bai-lter, 3 C. & P. 589. Held, also, that evidence might be adduced by the prisoner to shew the general light character of the prosecutrix, and that general evidence might be given of her being a street-walker. lb. The prosecutrix may be asked, on cross-exami- nation, whether she had not allowed another man than the prisoner to take liberties with her, in the interval between the commission of the alleged ofience and the first complaint of it. Reg. V. Mereer, 6 Jur. 243. On a trial for rape, evidence of the general character of the prosecutrix, as that she had been a reputed prostitute, is admissible. Reg. v. Clay, 5 Cox, C. C. 146. Contradiction of the Prosecutrix.] — A prose- cutrix, on a charge of rape, having, on cross- examination, said that she had herself been charged with stealing money, and on that occasion had accounted to a police constable for the possession of the money by stating that it was given her for not complaining of a person who had insulted her by solicitations against her chastity, but denied that she had said the money was given her for having connexion with him : ■ — Held, that the prisoner could not call the constable as a witness, to contradict the prose- cutrix, by proving that she had said that the money was given her for that purpose. Reg. v. Bean, 6 Ccx, C. C. 23. If upon the trial of an indictment for rape, attempt to rape, or indecent assault, the prose- cutrix is asked whether previously to the alleged ofEence she has had connexion with a particular person named ; her answer is final, and evidence cannot be adduced to contradict her if she replies in the negative. Reg. v. Holmes, 1 L. E., C. C. 334 ; 41 L. J., M. C. 12 ; 25 L. T. 669 ; 20 W. E. 122 ; 12 Cox, C. C. 137. But the prosecutrix having, on cross-examina- tion, denied that she had connexion with other men than the prisoner, those men may be called to contradict her. Reg. v. RoMns, 2 M. & Bob. 512. Proof of Other Cases.] — On an indictment for rape on a child under ten, evidence was admitted of subsequent perpetrations of the same ofEence on different days previously to complaint to the mother, it appearing that the prisoner had threatened the child on the first occasion:— Held, that, virtuaUy, it was in such a case all one continuous offence. Reg. v. Reai-den, 4 F. & F. 76. On an indictment for an assault with intent to commit a rape, evidence that the prisoner on a prior occasion had taken liberties with the prose- cutrix, is not receivable to shew the prisoner s intent. Rex v. Zloyd, 7 C. & P. 318. Proof of Age.]— Family discussion as to birth- day, and acts done on the reputed day, are evi- dence for the jury as to the age of an infant prosecutrix, on whom a rape is charged to have "been committed. Reg. v. Haye.^, 2 Cox, O. O. •226. Identity of Accused.]— In a case of rape •against five, the prosecutrix, when before the grand jury, did not know the names of the ■different prisoners, but could identify the persons : —Held, that the grand jury might call m another witness, who was before the examining magistrate and there saw the prisoners, and let the prose- cutrix describe the different prisoners, and the other witness give their names ; and that, if the prisoners could not be identified by this mode they might be brought before the gi-and iurv Reg. V. Jenkins, 1 C. & K. 536. Depositions of Prosecutrix — When Admis- sible.]— If it is proved on the part of the prose- cution that the party alleged to have been ravished has been kept out of the way by the prisoners, the judge will allow her deposition before the magis- trate to be given in evidence. Riri. v. Guttridne, 9 C. & P. 471. , •' ' _ In an indictment for a rape, the deposition of a girl taken before the committing magistrate, and signed by him, may, after her death, be- read in evidence at the trial of the prisoner, although it was not signed by her, and she was under twelve years of age, provided she was sworn, and ap- peared competent to take an oath ; and all the facts necessary to complete the crime may be collected fi'om her testimony so given in evidence. Rex V. Flemming, 2 Leach, 0. C. 854 : 1 East, P. C. 440. It appeared that the prisoner had been taken before the mayor of N., charged with rape ; and that the prosecutrix was sworn, and her state- ment taken down by the mayor, who asked her some further questions, the answers to which were taken down, and the prisoner was discharged. That which was taken down by the mayor was not read over to the prosecutrix, neither was it signed by her or by the mayor. The prisoner was afterwards committed for trial by other magis- trates : — Held, that at the trial the prisoner's counsel might cross-examine the prosecutrix as to what she said before the mayor of N., without the production of that which was taken down on that examination. Reg. v. Gnffitlis, 9 0. & P. 746. On her cross-examination a prosecutrix cannot be contradicted from the depositions unless they are put in. Reg., v. Wright, 4 F. & F. 967. Sufficiency of Confession.] — The prisoner was convicted of a rape upon the prosecutrix, who was an apparent idiot. She proved the act done, and said that it was wrong, but that she said nothing to the prisoner, and that she did not do anything to him, and that she did not like to hurt nobody. The constable told the prisoner that he was charged with committing a rape upon the prosecutrix and against her vnll. The prisoner, in answer to that, said, " Yes, I did ; and I'm very sorry for it ; " — Held, that there was evidence to sustain the conviction. Reg. v. Po-essy, 10 Cox, C. C. 635 ; 17 L. T. 295 ; 16 W. E. 142. Proof of Attempt to Rape.] — On a charge of rape, there having been to some extent assent, and it being doubtful whether the act had been com- pleted, it is necessary that the jury should be satisfied, before convicting either of a rape or of an assault with intent to commit a rape, that the prisoner intended to commit the offence notwith- standing any resistance on the part of the woman. Reg. V. Wright, 4 F. & F. 967. 2. Caenallt Abusing Children. Girls under Twelve Years.]— By 38 & 39 Vict, c. 94 (The Offences against the Person Act, 1875), Digitized by Microsoft® 525 CEIMINAI. IjAW—Miirder, Assaults, dec. 526 s. 3, iKlioioerer sliall unlawfully and carnally Jino'W and abuse any girl under tJie age of twelve years sliall ie guilty of felony, and, hcing eon- r'lHcd thereof, shall he liable, at the disci-ctiim of the court, to he hept in penal servitude for Tife, or for any term not less than fire years, or to ho imprisoned for an/y term not exceeding tioo gears, icitli or without hard labour. Abusing Girls above Twelve Tears and under Thirteen Years.] — By s. i, whosoever shall un- lawfully and carnally Itnow and abuse any girl being above the age of twelve years, and under the age of thirteen years, ivliether with or with- out. her consent, shall be guilty of a misdemeanor, and, being convicted thereof, sliall be liable, at the discretion of the court, to he imjirisoned for any term not exceeding two years, with or with- out hard labour. Consent of Girl under Thirteen.] — By 43 & 44 Vict. c. 45 (Criminal Law Amendment Act, 1880), s. 2, It shall he no defence to a cliarge or indict- ment for an indecent assault on a young person finder tlie age of thirteen to prove that lie or she consented to the act of indecency. Who Capable of Committing.] — A boy under fourteen cannot, by law, be convicted of felo- niously carnally knowing and abusing a girl under ten, even though it was proved that he had arrived at the full state of puberty. Reg. V. Jordan, 9 C. & P. 118. Above Statutes do not Bepeal old Law of Eape.]— The statute 38 & 39 Vict. c. 94, s. 4, which enacts that " whosoever shall unlawfully and carnally know and abuse any girl being above the age of twelve years and under the age of thirteen years, whether with or without her consent, shall be guilty of a misdemeanor," &c., does not operate to prevent a conviction for felony, under 24 & 25 Vict. c. 100, s. 48, of a per- son committing a rape upon a girl between those ages. Reg. v. Diclien (14 Cox, C. C. 8) followed. Beg. V. RatcUffe, 10 Q. B. D. 74 ; 52 L. J., M. C. 40 ; 47 L. T. 388 ; 15 Cox, C. C. 127. An indictment for the felony of rape still lies against one who ravishes a female between the age of twelve and thirteen, notwithstanding the provisions of the 38 & 39 Vict. c. 94, s. 4. Reg. V. Dieheji, 14 Cox, G. C. 8. Penetration.] — If, on the trial of an indictment for carnally knowing and abusing a female child under ten, the jury is satisfied that, at any time, any part of the virile member of the prisoner was within the labia of the pudenda, no matter how little, this is sufiicient to constitute a penetration, and the jury ought to convict. Ren. v. Lines, 1 C. & K. 393. Effect of Consent of Girl.] — Attempting to carnally know and abuse a girl between the ages of ten and twelve is not an assault, if the girl consents to all that is done, but is a misdemeanor. Reg. V. Martin, 9 0. & P. 213 ; 2 M. C. C. 123. See now 43 & 44 Vict. c. 45, «upra. The person making such attempt, with the con- sent of the girl, is not indictable for an assault, but is indictable for the misdemeanor of attempt- ing to commit the misdemeanor of carnally know- ing and abusing her. lb. An indecent assault committed upon a girl between the age of ten and twelve, with her consent, is not indictable. Reg. v. Johnson, L. & 0. 632 ; 10 Cox, C. C. 114 ; 34'L. J., M. C. 192 ; 11 Jut., N. S. 532 ; 12 L. T. 503 ; 13 W. K. 815. But on an indictment for attempting to have carnal knowledge of a girl under ten years, being a misdemeanor, consent by the girl is no defence and is immaterial. Reg. v. Bealc, 1 L. R., C. C. 10 ; 35 L. J., M. C. 60 ; 12 Jur., N. S. 12 ; 13 L. T. 335 ; 14 W. R. 57 ; 10 Cox, C. C. 157. A prisoner was indicted at quarter sessions for an indecent assault on a girl seven years of age. The chairman refused to allow the prisoner's counsel to address the jury on the question of the girl's consent to the prisoner's act, ruling that a child of seven years old might submit, but was incapahie of giving consent in such a case : — Held, that such ruling was wrong. Reg. V. Roadley, 14 Cox, C. C. 463 ; 49 L. J., M. C. 88 ; 42 L. T. 515. Consent through Terror.] — On an indictment for attempting to carnally know and abuse a girl under ten, with a count for a common assault, the attempt was proved, but it could not be shewn that the child was under ten years of age, and it also appeared that no violence was used by the prisoner, and no actual resistance made by the girl : — Held, that although consent on the part of the girl would put an end to the charge of assault, yet that there was a gi-eat difference between consent and submission, and that, although, in the case of an adult, submitting quietly to an outrage of this kind would go far to shew consent, yet that, in the case of a child, the jury should consider whether the submission of the child was voluntaiy on her part, or was the result of fear under the circumstances in which she was placed. Reg. v. Day, 9 C. & P. 722. On an indictment for the carnal knowledge of a girl above ten years of age, and under twelve, and also for an assault : — Held, on the latter count, that although consent would be a defence, consent extorted by terror, or induced by the in- fluence of a person in whose power she feels her- self, is not really such consent as will have that effect. Reg. v. Woodhwst, 12 Cox, C. C. 443. Effect of Fraud.] — ^An assault is within the rule that fraud vitiates consent, and therefore when a man, knowing that he had a foul dis- ease, induced a girl of thirteen, who was ignorant of his condition, to consent to sleep with him, and he infected her : — Held, that he might be convicted of an indecent assault. Reg. v. Bennett, 4 F. & F. 1105. Effected by Force.]— If, on the trial of an in- dictment for a misdemeanor in carnally knowing and abusing a girl between the age of ten and twelve, it appears that the prisoner effected his purpose by force, and against the girl's wUl, this is no ground of acquittal. Reg. v. Neale, 1 C. & K. 591 ; 1 Den. C. C. 36. Indictment.] — ^An indictment in the first count charged the defendant with having assaulted " E. R., an infant above the age of ten and under the age of twelve," with intent to carnally know and abuse her ; and in the second count charged that the defendant " unlawfully did put and place the private parts of him, the said T. M., against the private parts of her, the said E. Digitized by Microsoft® 527 CRIMINAL LAW— Murder, Assaults, dc. E., and did thereby then and there unlawfully attempt and endeavour to carnally know and abuse the said E. E. : " — Held, that the second count was bad, as it did not allege that E. E. was between the ages of- ten and twelve. Itm. v. MaHin, 9 C. & P. 215. Held, also, that the words "the said B. B." merely meant that she was the same person as was mentioned in the first count, but that those words did not import into the second count the description of E. R. with respect to her age. Ih. ' A count in an indictment charging that a defendant did attempt to assault a girl by soliciting and inducing her to place herself in an indecent attitude, he doing the like, is bad. Bex V. Butler, 6 C. & P. 638. An indictment (whether for the felony or for an attempt to commit it), founded on 2i & 25 Vict. c. 100, s. 50, which makes it a felony to " carnally know and abuse any girl under the age of ten years," is sufficient & it ' uses the words "carnally know" only, and omits the word " abuse." Beg. v. Holland, 10 Cox, C. C. 478 ; 16 L. T. 536 ; 15 W. E. 879. • Girl under Ten. ] — A prisoner was indicted for the misdemeanor of carnally knowing a girl between the age of ten and twelve. The ease was proved, but the girl was under ten : — Held, that he must be acquitted, and that the 14 & 15 Vict. c. 100, s. 12, did not apply. Beg. v. Sliott, 3 C. & K. 206. Trial — When Jury may find Assault or Attempt to Commit.] — An indictment contained one count, ■charging that the prisoner in and upon a girl between the ages of ten and twelve " unlawfully did make an assault and her did then unlawfully and carnally know and abuse against the form of the statute." The offence of carnally knowing and abusing was disproved, but there was evi- dence of an indecent assault, which was left to the jury, who found the prisoner guilty of a common assault : — Held, that the indictment charged an assault as a distinct and separable offence, and that the conviction was good. Beg. V. Ghithrle, 1 L. E., G. C. 241 ; 39 L. J., M. C. ■95 ; 22 L. T. 485 ; 18 W. E. 792. When a man is indicted under 38 & 39 Vict, •c. 94, s. 3, for rape upon a, child under^ twelve years of age, he cannot upon that indictment l)e found guilty of an assault, indecent or othei-wise. Berj. v. Cathereoll, 13 Cox, C. C. 109. On an indictment for carnally knowing and abusing a girl under ten, the prisoner may be acquitted of the felony, and convicted of an assault. Beg. v. Follies, 2 M. & Eob. 460. Under anindictment for unlawfully assaulting and having carnal knowledge of a girl between ten and twelve years of age, the prisoner may be •convicted of the attempt to commit that offence. Beg. V. Bylancl, 11 Cox, C. C. 101 ; 18 L. T. 538 ; 16 'W. E. 941. ^ , , Where an indictment charged the defendant with an assault and an intent to abuse and car- nally know a female child :— Held, that he might lie convicted of an assault to abuse her simply, as the averment of such intention is divisible. Hex V. Bawton, 3 Stark. 62. On an indictment for an assault, &o., it pene- tration is proved, the prisoner cannot be convicted of the attempt. Beg. v. Nielwlls, 2 Cox, O. O. 182. 528 Evidence— When Infant an Admissible Wit- ness.]— In cases of carnal knowledge of children the infant witness, though under seven years of age, if apprised of the nature of an oath, must be ■sworn. ii!ftj! v. Bmsier, 1 Leach, 0. C. 199 : 1 lliast, P, G. 443. - — Postponement of Trial.]— In a case of car- nally knowing and abusing a girl under ten year.s old, it appeared, on an application on the part of the prosecution to postpone the trial, that the girl was only six years old, and, by reason of her age, quite incompetent to take an oath :— Held, that the trial ought not to be postponed in order that the child might be instructed as to the nature of an oath ; but that there might be cases of children of more matui-ed intellect, e. g. of ten or twelve years old, who might be from neglected education incapable of being sworn, in which such a postponement might be proper. Beg. v. Mcholas, 2 0. & K. 246. S. P., Bex v. William.':, 7 C. & P. 320. Statement of Child when Prisoner absent. ] — Where in such a case the child, from her tender age, was incompetent to be sworn, the judge would not receive evidence of what the child stated to her mother shortly after the alleged offence took place, nor allow the mother to prove that the child mentioned to her the name of any particular person. Ih. Of Age of Girl.] — A prisoner was charged with carnally abusing a child under ten, on February 5, 1832. To prove the child under ten years, an examined copy of the register of her baptism on February 9, 1822, was put in, and her father stated, that he left his house about a week before the 9th of February, 1822, his wife not being then confined ; and that on his return on that day he found this child, and was told by his wife's mother that it had been born on the day before : — Held, that this was not sufficient evi- dence of the child's being under ten years. Re,e V. Wedge, 5 C. & P. 298. A mother stated that a child was ten years old last March, but on cross-examination her evidence as to the knowledge of her children's ages seemed by no means clear. The evidence, though objected to as too unsatisfactory to leave to the jury on a charge of carnally knowing and abusing a girl under the age of twelve, was submitted to the jury, who found that the girl was under twelve, and convicted the prisoner of the charge : — Held, that the conviction must be affirmed. Beg. v. Nielwlls. 10 Cox, C. G. 476 ; 16 L. T. 166 ; 15 W. E. 795. 3. Indecent Assaults on Females. Statute.]— By 24 & 25 Vict. c. 100, s. 52, wlwsnerer sliall he oonvieted of any indeocid assault upon any female, or of any attempt to have carnal hnowledge of any girl under ttoeh-i' years of age, shall he liahle, at the diseretion n/ the court, to he imprisoned for any term not ex- ceeding two years, with or without hard labour. What is.]— A schoolmaster, who places his hands indecently on the person of a female pupil is guilty of an indecent assault, although the pupil is thirteen years of age, and does not make any actual resistance. Beg. v. MGamran, 6 Cox, C. C. 64. '^ Digitized by Microsoft® 529 CRIMINAL LAW— 06scem%, dc. 530 Evidence — Admissibility.] — Lettei-s relating to the charge written by one of the scholars who is examined as a witness for the prosecution, may, on her denial of the handwriting, be proved and given in Qvidence on the part of the de- fendant for the pm-pose of affecting the witness's credit, and shewing the capacity of the scholais to conspire to make a false charge against him, although the prosecutrix is not proved to have received the letters, or had any knowledge of their contents. IT). Contradicting Prosecutrix.] — A prosecu- trix of an indictment for an indecent assault, on which the facts alleged amounted, in substance, to an attempt at rape, was asked in cross-exami- nation whether she had not previously had connexion with a man other than the prisoner, and denied it : — Held, that she could not be contradicted. Ren. T.Holmes, 1 L. K., 0. C. ?,M ; 41 L. J., M. C. 12 ; 25 L. T. 669 ; 20 W. K. 122 ; 12 Cox, C. C. 137. And ace casfs ante, col. .523. 4. Peocueing Defilement of Giel under twentt-one. statute.]— By 24 & 25 Vict. c. 100, s. 49, lohosner/'i- sliall, T)y false pretenecn. false repre- sentnf'umn nr other fravihdent means, prncure nny woman or (jirl under the age of twenty-one years to liave iilieit earnal ronne.n'on with any man, shall he nwilty of a veisdemeanor, nnd, heing omirieted thereof, shall he linhle. at the disrrethm of tile couH, to he imprisoned for any term not e:cceeding two years, with or loithmtt hard lalmir. (^Stmilar to 12 & 13 Vict. c. 76, Jiishoj) of O^sford's Aet (S. Wilberforce), re- pealed hy 24 & 25 Vict. c. 95.) At Common Law.] — A conspiracy to procure by false pretences, false representations and other fraudulent means, a young girl to have illicit carnal connexion with a man, is a mis- demeanor at common law. Reg. v. Mears, 2 Den. C. C. 79 ; 20 L. J., M. C. 59. XXVIl. OBSCENITY AND INDECENCY. 1. Obscene Feints and Pictukes. 20 & 21 Vict. c. 83, provides additional powers for the suppression of the trade in obscene books, prints and pictures. Procuring with Intent to Publish.] — It is a misdemeanor to procure indecent prints with intent to publish them. Dugdale v. Req. (in error), 1 El. & Bl. 425 ; Deai-s.' C. C. 64 ; 22 L. J., JI. C. 50 ; 17 Jur. 546. But to preserve and keep them in possession with such intent, is not. lb. What is sufficient Publication.] — The sale of an obscene print to a person in private, he having in the first instance requested that such prints .should be shewn to him, his object being to prosecute the seller, is a suflBcient publication to sustain the charge. Reg. v. Carlile, 1 Cox, C. C. 229. Beport of Trial.] — One Maokey was indicted for selling a new edition of a book which was still obscene, though some of the most offensive passages had been omitted. At the trial this book was not read, but was taken as read. S. pub- lished a substantiajly correct report of Mackey's trial, in which, however, he set out the whole of the new edition of the book : — Held, that the publication of the report, setting out the new edition of the book, was a misdemeanor, that the obvious consequence of it would be to corrupt the public morals, and that S., however pure his motives, must be taken to have intended the con- sequences of his act. Steel v. Brannan, 7 L. R., C. P. 261 ; 41 L. J., M. C. 85 ; 26 L. T. 509 ; 20 W. R. 607. Held, also, that the report was not privileged as being a fair report of a trial in a court of competent jurisdiction. lb. Held, also, that copies of the report were rightly ordered to be destroyed under 20 & 21 Vict. c. 83, H. 1. lb. Destruction of Books.] — An order made for the destruction of books under Lord Campbell's Act, 20 & 21 Vict. c. 83, s. 1, must state that the magistrate making it is satisfied, not only that the books are obscene, but also that their publi- cation would amount to a misdemeanor proper to be prosecuted. Bradlaugh. Ex parte. 3 Q. B. D. 509 ; 47 L. J., M. C. 105 ; 38 L. T. 680 ; 26 W. R. 758. And see preceding ease. Seizure of Books.] — Copies of a pamphlet of an obscene nature were seized under 20 & 21 Vict. 0. 83. The publisher did not keep or sell the pamphlet for the sake of gain, nor to pre- judice good morals, but for a purpose which he considered to be good : — Held, that the object of the publisher did not alter the character of his act, the natural consequence of which he must be taken to have intended, and the natural con- sequence being one which would make the publication of the immphlet a misdemeanor, and in the opinion of the justices who ordered the seizure proper to be prosecuted as such, the seizure was right. Reg. v. Uichlin. 3 L. R., Q. B. 360 ; 37 L. J.. M. 0. 89 ; 16 W. R. 801 ; 11 Cox, C. C. 19 ; S. a, nom. Reg. v. Wolver- ' hampton (Recorder), 18 L. T. 395. Abatement of Proceeding by Death of Com- plainant] — Complaint having been duly made under 20 & 21 Vict. c. 83, that obscene books were kept by the defendant in his shop for sale, a warrant for the seizure of such books was issued, and after they had been seized the defen- dant was summoned to shew cause why they should not be destroyed. Upon the hearing of the summons an order was made for the de- struction of the books. After the issuing of the summons, but before the hearing, the complainant died, and no application to substitute another complainant was made : — Held, that the pro- ceedings against the defendant did not lapse upon the death of the complainant, and that the ord,er was valid. Reg. v. Trnelore, 5 Q. B. D. 336 ; 49 L. J., M. C. 57 ; 42 L. T. 250 ; 28 W. R. 413 ; 44 J. P. 346 ; 14 Cox, C. C. 408. Indictment.]— In an indictment for publishing an obscene book, it is not sufficient to describe the book -by its title only, for the words alleged to be obscene must be set out ; and if they arc omitted, the defect will not be cured by a verdict of guilty, and the indictment will be bad either upon arrest of judgment or upon error. Digitized by Microsoft® 531 CRIMINAL J.A.'W— Obscenity, dx. liradlaufih v. R(tfj., 3 Q. B. D. 607 ; 38 L. T. 118 ; 26 W. R. 410— C. A. Reversing 2 Q. B. D. 569 ; 46 L. J., M. C. 286. Evidence.] — If on the trial of an indictment for publishing an obscene snuff-box, a witness proves that the defendant exhibited to him the box produced on the trial, or a box exactly similar, this is not sufficient, if the witness can- not identify the very box exhibited to him. Rex V. Rosemtcbi, 2 C. & P. 414. 2. Indecent ExpostrBB, Public Place— What is.] —A party was in- dicted for an indecent exposure in an omnibus, several passengers being therein. The indict- ment contained two counts ; one laid the offence as having been committed in an omnibus, and the other in a public highway : — -Held, that an omnibus was sufficiently a public place to sustain this indictment. Reg. v. Holmes. Dears. C. C. 207 ; .S C. & K. 360 ; 6 Cox, C. C. 216 ; 22 L. J., M. C. 122 ; 17 Jur. 562. Seen only by one Person.] — An indecent exposure in a place of public resort, if actually seen only by one person, no other person being in a position to see it, is not a common nuisance. Reg. V. Webb, 1 Den. C. C. 338 ; 3 Cox, C. C. 183 ; T. &. M. 23 ; 2 0. & K. 9.33 ; 18 L. J., M. C. 39 ; 13 Jur. 42. S. P., Reg. v. Watson, 2 Cox, C, C. 376. An indecent exposure seen by one person only, and capable of being seen by one person only, is not an offence at common law. Secas, if there are other persons in such a situation as that they may be witnesses of the exposure. Reg. v. Farrcll, 9 Cox, C. C. 446. The prisoners committed fornication in open day, on a common, in the sight of one witness only, but so that any one passing over the com- mon or along a public footway adjacent could have seen them. There was no proof that any persons were passing over the common or along the footway at the time. Qusere, whether this was an indictable offence. Reg. v. MIM, L. & C. 103. Whether Urinal is.] — The prisoners wwe convicted of indecently exposing their persons in a urinal, open to the public, which stood on a public footpath in Hyde Park, and the entrance to which was from the footpath : — Held, that the jury might well find the urinal to be a public place, and that, therefore, the conviction was good. Ren. V. HarrU, 1 L. B., C. C. 282 ; 40 L. J., M. C. 67 ; 24 L. T. 74 ; 19 W. R. 360 ; 11 Cox, C. C. 659. An indictment charged two defendants with indecent exposure of their persons in an open and public place :— Held, that an urinal with boxes or divisions for the convenience of the public, and situated in an open market, was not a public place within the meaning of the allega- tion. Req. V. Orchard, 3 Cox, C. C. 248. Not in place open to Public, but where Public cw See.]— In order to render a person liable to an indictment for indecently exposing his person in a public place, it is not necessary that the exposure should be madem a place open to the public. If the actis done where ^ Digitized by Microsoft® 532 a great number of persons may be ofieaded bv It and several see it, it is sufficient. Ren. v. riialUmm, 9 Cox, C. C. 388 ; L. & C. 326 • 33 L J., M. C. 58 ; 9 L. T. 425 ; 12 W. E. 88. Where a man exposed himself indecently on a roof at the back of a house in London, so as to be visible to persons in the back premises of many other houses, but not so as to be capable of being seen from any place open to the public, and seven persons in one house saw the exposure, the conviction was held good. lb. A person is indictable for a common nuisance by indecently exposing his person in a public place, though the exposure is made in a place not open to the public, if the act is done where a great number of persons may be offended by it, and several see it. Reg. v. Mallam, 33 L. J., M. C. 58. It is unlawful for men to bathe, without any screen or covering, so near a public footway fre- quented by females that exposure of their persons must necessarily occur, and persons who so bathe are liable to an indictment for indecency. Ren. V. Reed, 11 Cox, C. C. 689. Evidence of TTsage.] — It is no defence to such .in indictment that there has been, as long as living memory extends, a usage to bathe at the place, and that there has been no exposure be- yond what is necessarily incident to bathing. lb. Bathing in the sea on the beach near inhabited houses, from which the' person may be distinctly seen, is an indictable offence, although the houses may have been recently erected, and till then it may hare been usual for men to bathe in great numbers at the place in question. Rex v. Cnm- den, 2 Camp. 89. Indecent Exhibition.] — An obscene ex- hibition in a booth on a racecoui-se with closed doors, to a number of spectators who have paid for their admission upon the invitation of the keepers of the booth to the general public, is a misdemeanor at common law. Reg. v. Saunders, I Q. B. D. 15 ; 45 L. J., M. C. 11 ; 33 L. T. 677 ; 24 W. E. 348 ; 13 Cox, C. C. 116. A herbalist, who publicly exposes and exhibits in his shop, on a highway, a picture of a man nalced to his waist and covered with eruptive sores, so as to constitute an exhibition offensive and disgusting, is guilty of a nuisance, although there is nothing immoral or indecent in the pic- ture and his motive was innocent. Reg. v. Grey, 4 F. & F. 73. Indictment.] — An averment in an indictment, '■ in the sight and view of B.," does not mean that B. actually saw it, but only that he might have seen it had he chanced to look. Reg. v. Webb, \ Den., C. C. 338 ; 3 Cox, C. C. 183 ; T. & M. 23 ; 2 C. & K. 933 ; 18 L. J., M. C. 89 ; 13 An indictment for this offence, which does not conclude ad commune nocumentum, is aided by 14 & 15 A^ot. c. 100, s. 25. Reg. v. Holmes. Dears. C. C. 207 ; 3 C. & K. 360 ; 6 Cox, C. C. 216 : 22 L. J., M. C. 122 ; 17 Jur. 562. An indictment for indecent exposure, charging le offence to have been committed on a high- •ay is not sustained by evidence that the offence was committed in a place near the highway, tliough in fall view of it, Reg. v. Farrell, 9 C. C. 446. T 2 the Cox, 533 CRIMINAL LAW— Perjury, Sc. 534 An indictment alleging that A. " in a certain open and public place did lay his hands on the person and private parts of B. with intent to stir up in his own and B.'s mind unnatural and sodo- mitical desires and inclinations, and to incite B. to the committing and perpetrating with A. divers unnatural and sodomitical acts, -and that B. in the said open and public place, did permit and suffer A. to lay his hands, &c., with the like intent," is bad, as not stating any ofEence with legal certainty. Reg. v. Orchard, 3 Cox, C. C. 2i8. Trial— View of Jury after Summing up.]— Upon the trial of an indictment for an indecent exposure in a urinal, the quarter sessions may | allow the jury to have a view of the locus in quo after summing up the case to the jui-y. H^r/. V. Martin, 1 L. E.,C. C. 378 ; 41 L. J., M. C. 113 ; 26 L. T. 778 ; 20 W. R. 1016 ; 12 Cox, C. C. 20i. But, it is indiscreet to allow the witnesses to accompany the jury in the absence of the ac- cused, or his advocate, or the judge. Jb. Costs of Prosecution.] — An indictment for an indecent exposure of the person before one J. S., with the intent to provoke him to commit an unnatural crime, which had been removed by the defendant by certiorari, is not within s. 23 of 7 Geo. 4, c. 64, so as to enable the court before whom it is tried to grant the costs of the pro- secution. Beg. V. . 3 N. & P. 627 ; 8 A. & B. 589, in a judicial proceeding before a competent jurisdiction ; and it must be material to the question depending and false. Ilex v. Aylett, 1 T. E. 63. On Foreign Affidavit.] — No perjury can be assigned upon a foreign affidavit. Musgrave v. Medex, 19 Ves. 562. But any person making, or knowingly using a false affidavit made abroad, is guilty of a misde- meanor in attempting to pervert public justice, and is punishable by indictment. Omealy v. Xcwell, 8 East, 364. Falsehood not Indictable.] — Falsehood, not strictly amounting to pei-juiy, is an indictable ofEence as a misdemeanor. Ooerton, Ux 2)aHe, 2 Rose, 257. Inciting to give Particular Evidence.] — Inciting a witness to give particular evidence, when the inciter does not know whether it is j true or false, is a high misdemeanor, especially if he, being an attorney on one side, gets himself employed for that purpose on the other side : at least, if the evidence is given accordingly. li. What Sworn to in Affidavit.] — Quaere, whether in an affidavit, the description of the deponent at the commencement of it is a part of what he swears. Hiy. v. Chapman, 1 Den. C. C. 432 ; 2 C. & K. 846'; T. & M. 90 ; 18 L. J., M. C. 152 ; 13 Jur. 885. XXVIII. PERJURY, FALSE OATHS, AND FALSE DECLARATIONS. 1. Perjury. a. The Offence. i. General Principles, ii. Judicial Proceedings, 534. iii. Coart of Competent Jurisdiction, 536. iv. Matter must be Material, 539. V. Falsity of Statement, 542. vi. Deliberate Intention, 543. J. Indictment. i. Averments, Form of, 543. ii. Amendment of Variances, 553. c. Tividence. i. Generally, 554. ii. Number of Witnesses and Corrobo- ration, 561. d. Trial, 564. 2. False Deela/rations. a. Customs, 566. 1>. On Registration of Voters, and at Par- liamentary Elections, 566. c. Municipal Elections, 567. d. Before Magistrates, 568. 6. On Registration of Births, Deaths, or Marriages, 569. 3. Unlawful Oaths, 570. 1. PEEJtTEY. a< The Offence. i. General Principles. What Eequisite to Found Indictment.] — To found an indictment for perjury, the requisite cirbumstanoes are these : the oath must be taken ii. Judicial Proceedings. For Purpose of Filing Bill of Sale.] — H. was indicted for perjury in an affidavit made under the Bills of Sale Act, 1854 (11 k 18 Vict. c. 36), for the purpose of getting a bill of sale filed. The affidavit was sworn before a commissioner for taking affidavits in the court of Queen's Bench : — Held, that his ofEence did not con- stitute perjury, but that he was guilty of taking a false oath, which ofEence was under the circum- stances a common law misdemeanor. Meg, v. Hodghiss, 1 L. R., C. C. 212 ; 39 L. J., M. 0. 14 ; 21 L. T. 564 ; 18 W. R. 150. Before Surrogates to Procure Marriage Li- cence.] — The taking of a false oath before a surrogate to procure a marriage licence, will not support a prosecution for perjury. Rex v. Foster, E. & R. C. C. 459. A. was indicted for making a false oath before a surrogate, for the purpose of obtaining a marriage licence : — Held, first, that a, surrogate has a general power to administer an oath in that behalf, so as to make a false oath a misde- meanor. Reg. V. Chapman, 1 Den. C. C, 432 ; T. & M. 90 ; 2 C. & K. 846 ; 18 L. J., M. C. 152 ; 13 Jur. 885. Held, secondly, that such false oath is a mis- demeanor, as being made with a fraudulent intention, in a matter of public concern. lb. Held, thirdly, that it was immaterial whether the marriage actually took place or not. Ii. In Bill .for Injunction — Ko Motion Made.] — A party filing a bill for an injunction, and making an affidavit of matters materi^ te it, is indictable for perjury committed in that affi- davit, though no motion was ever made for the injunction. Rex v. Wliitr, M. & M. 271. Digitized by Microsoft® 535 Informal Affidavits for Use in Court.] — Sem- ble, that a person may be oouvioted of perjury contained iu an affidavit intitled, in a cause, " A. B. against 0. D. and others," although, by the rules of the courts, all affidavits should iu their title name all the plaint iiis and all the defendants, llcg. v. Chrutian, Car. & M. ji88. An indictment may be supported against a marksman, for swearing falsely iu an affidavit, though it would not be receivable in the court it was sworn iu, because the jurat did not state that it had been read over to the party swearing it ; but the person administering the oath must prove that the party swearing it iu fact understood its contents, and the perjury is com- plete at the time of the swearing of the affidavit ; and whether it is receivable in the court or not is immaterial, if the reason why it is not receiv- able is, that some formal regulation is not com- plied with, ltd' v. Uadcxj, 1 C. & P. 258 ; K. & M. 94. Sheriffs' Court — Amendment Unauthorized.] — An unmarried woman having recovered judg- ment in a countj' court against A., obtained a j adgment summons against him from the Sheriffs' Court, London. At the hearing, it having been ascertained that the plaintifi had married in the meantime, the judge amended the title of the cause by inserting the husband's name : — Held, that he had uo power to do so, and conse- quently, that an indictment for perjury could not be maintained against the defendant for false evidence given at that hearing. Mccj. v. Pearce, 3 B. .t S. 531 ; 9 Cox, C. C. 258 ; 9 Jur., N. S. 647 ; 7 L. T. 597 ; 11 W. K. 235. Court-martial.] — Semble, that taking a false oath before a court-martial is perjury at common law. Meg: v. Hcane, 4 B. & S. 947 ; 9 Cox, C. "C. 438 ; 10 Jur., K B. 724 ; 9 L. T. 719 ; 12 W. E. 417. Local Marine Board.] — Wilful and corrupt false swearing before a local marine board, duly and lawfully appointed and constituted, upon a matter material to an inquiry then being law- fully investigated by them, in pursuance of the 17 & 18 Vict. c. 104, and 25 & 26 Vict. c. 63, is perjury. Reg. v. TumUnson, 1 L. R., C. C. 49 • 36 L. J., M. C. 41 ; 12 Jur., N. S. 945 ; 188 : 15 W. B. 46. CEIMINAL ~Lm-Perjuvy, d-c. 53^ iii. Court of ComjK-Umt JunscUction. l7"."f«V^f''*''^!'""y '" Chanoery.]_Befora 17 cV 18 Vict. c. 78, a master extraorriiT.n.rv Jt. 15 L. T. Inquest before Deputy-Coroner. J— By 6 & 7 Vict. c. 83. s. 1, coroners are empowered to appoint deputies, provided that no deputy shall act " except during the illness of the coroner, or his absence from any lawful or reasonable cause. By s. 2, no inquisition shall be quashed by reason of such inquisition having been taken before any deputy instead of the coroner himself. A pei-son being indicted for perjury committed "pon an inquest held before a deputy-coroner, and the objection having been taken that there was no lawful or reasonable cause for the absence of the coroner :— Held, that whatever the, cause of absence, by s. 2 a valid inquisition might have been founded upon the inquest, and therefore th£ deputy had jurisdiction, and perjury was committed. Reg. v. Jolmson,%J^. B., C. O iii , 42 L. J., M. G. 41 ; 27 L. T. 801 ; 12 Cox, C. C. ^^*- Digitized by Microsoft® „ .-,„ master extraordinary in Chancery liad no authority to administer olths lu matters before the Court of Admiralty ; and a conviction for perjury iu an affidavit used in the Court of Admiralty, but sworn before a master extraordinary in Chancery, could not be supported. Meg. v. Stone, Dears. C. C. 251 ■ 23 L. J., M. 0.14; 17 Jur. 1106. Registrar of Bankruptcy Court.]— The 1 & 2 ^c C. 579 ; i 10 Cox, C. C. 66 ; 34 L. J., M. C. 169 ; 11 Jur., N. S. iU> ; 12 L. T. 470 ; 13 W. R. 692. An indictment for perjury stated the ofEence to have been committed on the trial of " a certain indictment for misdemeanor" at the quarter sessions for a county ; but did not state what the misdemeanor was, nor that the quarter sessions had jurisdiction to try it : — Held, that the indictment was good. lleg. v. Dmininij, 1 L. K., C. C. 290 ; 40 L. J., M. C. 58 ; 24 L. T. 38 ; 19 W. E. 357 ; 11 Cox, C. 0. C51. Ab to Falsity of Statement.] — An indictment which charges that the prisoner " feloniously, corruptly, knowingly, wilfully, and maliciously swore," omitting the word ■' falsely," but con- cluding, " and so the defendant in manner and form aforesaid did commit wilful and corrujit perjuiy," is bad. Itcy. v. Oxlcy, 3 C. & K. 317. An infoiTuation for perjuiy, ctiarging that the defendant, before a committee of the House of Commons, being duly sworn, " knowingly and deliberately, and of his own act and consent, did depose and swear" to certain facts set forth in the information ; and that he afterwards, at the bar of the House of Lords, being duly sworn, ■"knowingly, &c., did swear" to certain facts contradicting what he had previously sworn before the committee of the House of Commons ; with a conclusion, " and so the defendant, in manner and form aforesaid, did commit wilful and corrupt perjury ;" cannot be sustained, and is bad in arrest of judgment. Ittx v. Harris, 1 D. & R. 578 ; 5 B. & A. 926. That Offence committed Wilfully.]— The word " wilful " is not necessary in an indictment for perjury at common law. Hex v. Co,r, 1 Leach, C. C. 71. But it is otherwise in an indictment for perjuiy on 5 Bliz. c. 9. Ih. An indictment charging that the defendant falsely and maliciously gave false testimony, without averring that the offence was wilfiilly or that it was corraptly committed, is bad in arrest of judgment. Hex v. Rwliartls, 7 D. & E. 655 : S. a, nom. Ilcr v. Stevens, 5 B. & C. 346. Time and Place when and where Offence Committed.] — lu an indictment there must be an allegation of time and place, which arc some- times material, and necessary to be laid with precision, and sometimes not. Hex v. Aiilett, 1 T. E. 63. Where an indictment alleged that E. W. falsely swore that " he was in the bar of the house of J. B., on the 15th day of February last, from between the hours of six o'clock and seven o'clock in the evening of the said last-mentioned day, until nine o'clock in the evening of the said last-mentioned day, and that he, E. W., did not then and there play at any game of cards at all:" — Held, that perjury was not sufficiently assigned by an averment that " the said E. W . did then and there (to wit) in the said bar of the said house and premises of the said J. B. on the said loth day of February last, and between the hours of six o'clock in the evening of the said last-mentioned day, and eight o'clock in the evening of the said last-mentioned day, play at a certain game of cards." Ileg. v. White- house, 3 Cox, C. C. 86. An indictment alleged that a cause was pend- ing in a county court, and that at the hearing it became a material question whether the plaintifE in the cause had, in the presence of the prisoner, signed at the foot of a bill of aocomit, purporting to be a bill of account between a firm called B. A; Co. and W., a receipt for payment of the amount of the bill ; and that the prisoner falsely swore that the plaintifE did, on a certain day, in the presence of the prisoner, sign the receipt (mean- ing a receipt at the foot of the first-mentioned bill of account) for the payment of the amount of the bill. The plaintifE in the county court had on other occasions signed similar receipts in the presence of the prisoner : — Held, that the bill of account was stated and set forth in the iirdietment with sufficient certainty. liey. v. Webster, Bell, C. C.154 ; 8 Cox, C. C. 187 ; 28 L. J., M. C. 200 ; 5 Jur., N. S. 604 ; 7 W. E. 449. An indictment stating that the defendant swore that a particular fact occurred on the day on which a certain memorandum bore date, and '^I^if n^'3ic(:i;lly pS'all^^i^ •;^n \ at f time c^ -aUng a c^talu^^ ^h^, which to found an indictment for perjury, that | without averrmg t^^V^^^y.^^^'^'^^'^^^t'^^^^^^ the prisoner swore that a certain event did not 1 and the assignment of P^^^^'^ f ^f "S the happen within two fixed dates, his attention not 1 fact drd not occur on the day on ^^t^^h tte havng been called to the particular day upon memorandum bore date, luncei tarn, an^ there testimony of the defendant in the first count mentioned; and that, on a rule nisi for a new trial, the defendant knowingly, falsely, wilfully, and corruptly made an affidavit that the evidence given by him at the trial was true, "whereas it was false in the particulars in the first count assigned and set forth," is bad, for it should havl averred distinctly that the defendant was sworn as a witness, and deposed to certain facts at the trial, instead of leaving it to be takeii by intendment. Bex v. IUeluirds,J B & E 6oo ; S C, sub nom. Rex v. Stevens, o B. ic L. sio. Digitized by Microsoft® _ coals on either on account ncvei; received any coals on credit either on account of himself or A. that the allegation was not too general, although no specific instanee_ was^^ayen.d^m_.which^the from r., "—Held, prisoner had received coals on credit from P. keq. V, Lmulon, 12 Cox, C. C. 50 ; 24 L T. 232 ft is not a sufficiently Pi'^cise allegation upon which to found an indictment for pejiJl*^^* the nrisoner swore that a certain event did not hl^^P^n w"thin two fixed dates, his attention not havFng been called to the particular day upon 549 CRIMINAL JjKW— Perjury, dte. 550 which the transaction was alleged to have taken place. Jtetf. v. Stolady, 1 F. & F. 518. Averment of Materiality— What Sufficient.] — An indictment stated, that L. stood charged by F. W., before T. S., clerk, a justice of the l^eace, with having committed a trespass, by entering and being in the daytime ou land in pui-suit of game, on the 12th August, 1843 ; and that T. S. proceeded to the hearing of the charge ; and that, upon the hearing of the charge, the defendant falsely swore that he did not see L. during the whole of the 12th August, meaning that he did not see L. at all on the 12th day of August, in the year aforesaid ; and that, at the time he swore as aforesaid, it was material or necessary for T. S., so being such justice, to inquire of, and be informed by the defendant, whether he did see L. at all during the 12th day of August, in the year aforesaid ; — Held, that this averment of materiality was insuffi- cient, because, consistently with this averment, it might have been material for T. S. in some other matter, and not in the matter stated to have been in issue before him, to have put this question and received this answer. Kf/j. v. Bar- tholomcic, 1 C. & K. 366. In an indictment it was alleged to be a material question whether or not t}ie prisoner ever got one Mile Williams to write a letter for her ; and in the averments, negativing the truth of what was sworn, the indictment alleged, that, in truth and in fact, the said Maiy Ann Bennett did get the said Milo Williams, and that when on her cross-examination at the trial, when the alleged perjury was committed, she was asked whether she had ever got a Mr. Milo Williams (who was then pointed out to her in court) to write a letter for her : — Held, that the averments were sufficient, without any allegation connecting the " one Milo Williams " named in the allegations of materiality, and the averments negativing the truth of what was sworn, with the " Mr. Milo Williams " named in the subse- quent part of the indictment. Hi'g. v. Scnnolt, 3 C. & K. 12-t ; 2 Den. C. C. 241 ; T. & M. 567 : 5 Cox. C. C. 207 ; 20 L. J., M. C. 217 ; 15 Jur. 496. An indictment alleging that one E. S. had filed a bill in chancery against the defendant J. C. and others, wherein he prayed that the defendant J. C. might answer the premises ; and that a purchase by J. C. of certain property belonging to the other defendants might be declared fraudulent and void ; and that it then and there became a material question whether the said J. C. did advise the said other defendants that the said property should be sold ; and that the said J. C. falsely and corruptly swore, and in and by his answer- denied, that he had so advised, is bad in arrest of judgment, for want of a svifficient averment of materiality. Reg. v. Ctitts, 4 Cox, C. C. 435. An indictment stated that it became a material question, whether, on the occasion of a certain alleged arrest, L. touched K.; and the defen- dant's evidence as set out was, — L. put his arms round him and embraced him ; innuendo that L. had, on the occasion to which the said evidence .applied, touched the person of K. : — Held, that the materiality of the evidence did not sufficiently appear. Ilea' v. Nicholl, 1 B. & Ad. 21. In an indictment, the assignment was that the defendant upon his oath did swear "that he then thought that the words written in red ink were not his writing, and that he had not in the pre- sence of W. D. written the words so written in red ink, whereas in truth and in fact the -niords so written in 'red ink were the defendant's writing, and" whereas also, in truth and in fact, he then and there, when he so deposed as aforesaid, thought that the words so written in red ink as aforesaid were his writing : " — Held, that perjury might be assigned upon the deposition of the defendant. Reg. v. Schlcsingcr, 10 Q. B. 670 ; 2 Cox, C. C. 200 ; 17 L. J., M. C. 29 ; 12 Jur. 283. Held, also, that the materiality of the allegation that the defendant wrote the words in the pre- sence of W. D. being averred, the court would not inquire into it. li. On an indictment for pei-jury alleged to have been committed in answer to a certain interroga- tory exhibited in a suit in the Ecclesiastical Court, it appeared that a suit for divorce, on the gi-ound of adultery, had been instituted against the prosecutor by his wife ; that the defendant was a witness examined on behalf of the wife to prove her case ; that cross interrogatories were exhibited to him by the prosecutor by way of cross-examination, one of which, put for the pur- pose of impeaching his character, was the follow- ing : — " Have you not passed by the name of Abbott, and also of Johnson ?" His answer was, " I have never passed by the assumed name of Abbott or Johnson." It was clearly proved that he had : — Held, that the question and answer were not sufficiently material to the issue to warrant the case going to the jury. Reg. v. Worlcy, 3 Cox, C. C. 535. It is not necessary expressly to aver materi- ality in any. indictment for perjury. It will be sufficient if materiality is clearly disclosed by the facts as stated on the face of the indictment. If materiality is not sufficiently averred, or apparent, the defect is not cured by 14 & 15 Vict. c. 100, s. 20. Nor is it such a defect as the judge will amend under sect. 25. Reg. v. Harvey, 8 Cox, C. C. %9. A variance between the form of oath proved and that stated in the indictment is immaterial. The circumstance that the statement may proba- bly influence the person to decide will not make it material, if not legally material, to the matter under consideration. Reg. v. SontJiwood, 1 F. & F. 356. An indictment for perjury alleged as committed on the trial of an issue in a cause, with averments of materiality to such issue, is sustained, althongli it appears that there were several issues in the cause. Reg. v. SmitJi, 1 F. & F. 98. An indictment, in which it is intended to assign perjury upon several statements in the defen- dant's evidence relating to several different matters, should allege that there were several material questions, and certain distinct and separate assignments of falsehood upon each. Reg. V. Rurraston, 4 Jur. 697. Where, upon an indictment for perjury, on a trial for felony, it neither appeared that the matter sworn was material, nor was it alleged to be so : — Held, that if the original indictment had been set out, and the materiality could plainly have been collected, it would have been sufficient without any special averment, but that one or the other was absolutely necessary. Rex v. Dunn, 1 D. & E. 10. Stating that at such a court (a court of admi- ralty session), K. was in due form of law tried upon a certain indictment then and there depend- Digitized by Microsoft® 551 CRIMINAL "LASN— Perjury, cCc. 2Q.B.D.415 25 W. R. 697 : ing against him for murder, and that at and upon the trial it then and there became and was made a material question, whether, &c., are sufficient averments that the perjury was committed on the trial of K. for the murder, and that the ques- tion on which the perjury was assigned was material on that trial. Bex v. Doivlhi, 5 T. R. 311 ; 8. C. (at nisi prius), Peake, 170. It is not necessary to set forth so much of the proceedings of the former trial as will shew the materiality of the question on which the perjury is assigned ; it is sufficient to allege generally that the particular question became material. lb. An averment, that it became and was material to ascertain the truth of the matter hereinafter alleged to have been sworn to, and stated by J. G. upon his oath, is not a good averment of materi- ality. Reg. V. GoeidfcUow, Car. & M. 569. An indictment for perjury committed before a magistrate, stating that the defendant went before the magistrate and was sworn, and that he did falsely, &c.," say, depose, swear, charge and give the justice to be informed," that he saw the pro- secutor commit bestiality, sufficiently shews that the oath was taken in a judicial proceeding; and it being also stated in the indictment that it was material " to know the state of the said A. B."s dress at the time the offence was so charged to be committed as aforesaid," is a sufficient averment of materiality to allow the prosecutor to shew that the flap of his trousers was not unbuttoned (as sworn by the defendant), and that his trousers had no flap. Sj;g. v. Gardimr, 8 C. & P. 737 ; 2 M. C. C. 95. If it appear sufficiently from the oath itself, that it was material to the matter then before the court, it is unnecessary to aver that fact ; but if it do not appear, then the materiality of that part of the oath upon which perjury is assigned must be averred. Hex v. ilcKcron, 5 T. R. 316. An indictment contained foui' counts, each of which stated that V. had done business as attor- ney for the defendant on his retainer ; that V. delivered his bill and took out a summons to shew cause why the bill should not be referred to tax- ation ; that it then and there became and was material in shewing cause to ascertain whether the defendant did retain V. ; and that he, before shewing cause, made an affidavit, denying that he had retained V.; and assigned perjury on the affidavit : — Held, that the fact of the retainer by the defendant was a material ingredient in the inquiry and was sufficiently.averred. RyalU v. jR^g. (in error'), 11 Q. B. 781 ; 3 Cox, C. C. 254 ; 18 L. J., M. C. 69; 18 Jur. 259— Ex. Ch. An indictment for perjuiy stated that an ac- tion was brought in the Chancery Division, in which the prisoner was the plaintiff and W. the defendant, that it came on for hearing before the vice-chancellor, that the prisoner did appear as a witness, and did falsely swear that he never did employ 0. and H. as his solicitors, and that he never executed any mortgage or deed relating to the property claimed in the action, and that the allegation in the statement of defence in the action that he executed the deeds in the state- ment of defence mentioned was untrue, " and the said false statements so upon oath made by the prisoner were material to the matters then in issue before the court : "—Held, upon motion in arrest of judgment, that the indictment was good, and that the averment of the materiality of the perjury assigned was sufficient. Reg. v. Scutt, Digitized by Microsoft® 552 46 L. J., M. C. 259 ; 36 L. T. 470 ; 13 Cox, C. C. 594. Construction- Month, what is.]— An indict- ment contamed four counts, each of which stated, that for the defendant on his retainer V had done business as attorney ; that V. delivered his bill, and after the expiration of one month from such delivery took out a summons before a judge, under 6 & 7 Vict. c. 73, to shew cause why the bill should not be referred for taxation ; that it then and there became and was material in shew- ing cause to ascertain whether the defendant did retain V ; and that he, before shewing cause, made " an affidavit, denying that he had retained V. ; and assigned perjury on such affidavit :— Held, that as all the counts ref en-ed to the statute, the word I' month " was to be construed according to the interpretation clause, and meant calendar month. RyalU V. Reg. (in error'), 3 Cox, C. 0. 254 ; 11 Q. B. 781 ; 18 L. J., M. C. 69 ; 13 Jur. 259— Ex. Ch. Affirming S. C, 17 L. J., M. C. 93 ; 12 Jur. 458. For what Purpose Offence committed.]— If an indictment for taking a false oath before a sur- rogate, to procure a marriage licence, only charges the taking of the false oath, without stating it was for the purpose of procuring a licence, or that a licence was procured thereby, the party cannot be i^unished thereon as for a misdemeanor. Rex V. Foster, R. & R., C. C. 459. What may be included in.] — ^An indictmentfor perjury contained two counts, charging perjury to have been committed by the defendant on two different occasions, one in the progress of a trial, the other in an affidavit in chancery. Both acts of perjury had the same object in view : — Held, that though the offences were in this way distinct, they might both be included in the same indict- ment, and that a general finding of guilty on the charges contained in both counts was good. Castro V. Reg., 6 App. Cas. 229 ; 50 L. J., Q. B. 497 ; 44 L. T. 350 ; 29 W. R. 669 : 45 J. P. 452 ; 14 Cox, C. C. 546— H. L. (E.) What Parts must be set out.] — Where perjury is assigned upon several parts of an affidavit, those parts may be set out in the indictment as if continuous, although they are in fact separated by the introduction of other matter. Re.v v. Calloman, 6 B. & C. 102 ; 9 D. & B. 97. Bejecting as Surplusage.] — A person was in- dicted for wilful and corrupt perjury in making a false affidavit before a commissioner for taking oaths in the Court Of Queen's Bench, for the pur- pose of getting a bill of sale filed under the Bills of Sale Act, 1854 :— Held, a misdemeanor, though not wilful and corrupt perjury, and that the conclusion of an indictment for perjury, ■' that so the defendant did commit wilful and corrupt perjury," might be rejected as 'surplusage, and a conviction for the misdemeanor was right upon such an indictment. Reg. v. SodgViss, 1 L. B., C. C. 212 ; 39 L. J., M. C. 14 ; 21 L. T. 564 ; 18 W. B. 150. ^ , , An indictment contained four counts, each ot which stated, that V. had done business as an attorney for the defendant on his retainer, and concluded as follows : " and so the jurors afore- said did say, that the defendant did commit perjury ■ "—Held, that such averment was im- 553 CEIMINAL l.A'W— Perjury, dc. 554 material and migtt be struck out as surplusage. Ri/alh v. Reff. (?« error), 3 Cox, C. C. 254 ; 11 . Q. B. 781 ; 18 L. J., M. C. 69 ; 13 Jur. 250— Ex. Ch. Affirming S. C, 17 L. J., M. C. 93 ; 12 Jur. 458. ii. Amendment of Variaiices. In what Cases permissible.] — If materiality is not sufficiently averred, or apparent, the defect is not cured hy 14 & 15 Vict. c. 100, s. 20. Nor is it such a defect as the judge will amend under s. 25. Me(i. V. Harvey, 8 Cox, C. C. 99. The judge at the trial of an indictment for per- jury has power to amend an inaccurate description of the time of passing a statute referred to in the indictment. Reg.Y. Westley, Bell, C. C. 193 ; 29 L. J., M. C. 35 ; 5 Jur., N. S. 1362. Where the title of an act of parliament is not accurately stated, but still so sta,ted as to enable the judges to know that there can be but one act referred to, such misstatement is immaterial. Ih. On a charge of perjury alleged to have been committed before commissioners to examine wit- nesses in a Chancery suit, the indictment stated that the four commissioners were commanded to examine the witnesses. Their commission was put in, and by it the commissionei-s, or any three or two of them, were commanded to examine the witnesses :— =-Held, a fatal variance, and the judge would not allow it to be amended under 9 Geo. 4, c. 15. lieij. V. Tliwins, 9 C. & P. 786. An indictment for perjury, alleged to have been committed on the trial of S. S., averred that the trial took place at the Assizes and General Sessions of the Delivery of the Gaol of 'Our Lady the Queen for the county of S., before John Lord Campbell, C. J., of our Lady the Queen, assigned to hold pleas before the Queen herself, and Sir E. V. AVilliams, Knt.. one of the justices of our Lady the Queen, of her Court of Common Pleas, assigned to deliver the gaol of the prisonei-s therein being. It being objected that this was a defective dcsoription, as alleging a court with an impossible combination of civil and criminal jurisdiction: — Held, that the word "assizes" might be .struck out as surplusage. Reg. v. Child, 5 Cox, C. C. 197. It being also objected that the words " assigned to deliver the gaol of the prisoners therein being," refen-ed only to the last-named judge : — Held, that the indictment might be amended by the record of the conviction of S. S., by inserting afterthe words " Common Pleas," " and others their fellows, justices," assigned to deliver the gaol. lb. The record of the conviction of S. S. described the court as a general session of oyer and ter- miner and gaol delivery. It also described the charge against S. S. as for cutting and wounding ; the indictment describing it as for wounding : — Held, that these variances might also be amended. lb. In an indictment foj perjury, the perjury was alleged to have been committed on the trial of an indictment against B., for setting fire to a certain bam of P. In support of the averment, a cer- tificate of the trial and conviction of B. was produced, but the offence there mentioned was setting fire to " one stack of barley." The ofience was, in fact, the same, the barn and the stack having been destroyed by one fire : — Held, that the indictment might be amended under 14 & 15 Vict. c. 100, s. 1. Reg. v. Xeville, 6 Cox, C. C. 69. In an indictment, perjury was alleged to have been committed on the hearing of a corHplaint for entering land for the purpose of taking game, contrary to"9iGeo. 4, c. 69, " before L. and J., being justices In and for the county of D., and acting in and for the borough of T., in the said county." In fact, L. and J. were justices for the borough only, and not for the county : — Held, that the variance was amendable. Reg. v. Western, 1 L. R., C. C. 122 ; 37 L. J., M. C. 81 ; 18 L. T. 299 ; 16 W. K. 730 ; 11 Cox, C. C. 93. c. Evidence. i. Generally. What must be Proved.] — If the perjury is committed at the trial of a cause, the prosecutor must prove the whole of the defendant's testi- mony. Rex V. Jonei, Peake, 37. Unless the point upon which the perjury is assigned arose upon the defendant's cross-exami- nation. J?e.K T. Dowlin, Peake, 170. In an indictment for perjury committed on the trial of a cause, it is sufficient for the prosecutor to prove all the evidence given by the defendant, referable to the fact on which perjury is assigned. Rex V. Rowley, E. & M. 299. If an indictment undertakes to set out con- tinuously the substance and effect of what the defendant swore when examined as a witness, it is necessary to prove that in substance and effect he swore the whole of that which is thus set out, though the indictment contains several distinct assignments of perjury. Rex v. Leefe, 2 Camp. 134. If in an Indictment for swearing falsely before a surrogate to obtain a marriage licence, the description of the deponent and other things material are alleged to be falsely sworn (but not alleging the false swearing to be in an affidavit), proof of the false swearing as to any one of the other things will sustain the count. Reg. v. Chapman, 1 Den. C. C. 432 ; 2 C. & K. 846 ; T. & M. 90 ; 18 L. J., M. C. 152 ; 13 Jur. 885. That Court had Jurisdiction.] — An indictment for perjury alleged the offence to have been com- mitted before J. U., then being and sitting as the duly qualified and appointed deputy judge of the county court of W. Proof was given that the perjury took place in the presence of J. IT., at the county court, and a certified minute, under the seal of the court, of the proceedings, was put in evidence, intitled " Minute of judgments, orders, and other proceedings, at a court holden at, &e., before J. U., deputy judge of the court :" — Held, that there was sufficient proof of his acting as deputy judge, and therefore primS facie evidence of his appointment as such. Reg. V. Roberts, 38 L. T. 690. Held, also, that by the County Coiirts Act, 9 & 10 Vict. c. 95, s. Ill, the minute of the pro- ceedings being made evidence of the proceedings and their regularity, was evidence of the regu- larity of J. TJ.'s appointment. lb. An affidavit purporting to be sworn before a public commissioner is admissible on the trial of an indictment for perjury without proof of the commission ; proof of the commissioner's acting as such is sufficient. Rex v. Howard, 1 M. & Eob. 187 ; S. P., Rem v. VereUt, 3 Camp. 432. An indictment for perjuiy in an affidavit stated the affidavit to have been sworn " before E. G. W., Digitized by Microsoft® 555 CRIMINAL -LAW— Perjury, dtc. then and there being a commissioner, duly autho- rized and empowered to take affidavits in the coanty of Gloucester, in or concerning any cause depending in the Court of Exchequer at West- minster." It was proved by K. G. W. that he had acted as a commissioner for talcing affidavits in the Exchequer for ten years, but had never seen his commission ; and that ten years ago, he applied to his agent to procure for him a com- mission to take affidavits in the Exchequer, and that his agent had told him that he had done so : — Held, that the proof of K. G. W.'s acting as a commissioner was prima facie evidence chat he was so. Reg. v. Xewton, 1 C. & K. 469. That Action is Fending or that Cause Tried.] — To prove that the action was pending, the copy of the writ of summons filed under the rules of the Judicature Act, and a copy of the pleadings in the action, and the order dismissing the action, were produced : — Held, sufficient without the original writ of summons. Beg. v. Sratt. 2 Q. B. D. 41.5 ; 13 Cox, C. C. 594 ;' 46 L. J., M. C. 2.59 ; 36 L. T. 476 ; 25 W. E. 697. If, in an indictment for perjury against C. D., it is averred that a cause was depending between A. B. and C. D.. a notice of set-off intitled in a cause A. B. v. C. D., and signed by the attorney of C. D., is not sufficient evidence to support the allegation. Rex v. Stoveld, 6 C. & P. 489. In an indictment for perjury committed on the trial of a former cause, the postea alone is suffi- cient evidence to prove that there was a trial, without shewing a copy of the final judgment. Anan., Bull. N. P. 243. An allegation in an indictment for perj ury, that judgment was entered up in an action, is proved by the production of the book from the judgment office in which the incipitur is entered. Iteg. v. Gordon, Ga.r.'Sz'UL.iV). • An indictment, tried before the Lord Chief .lustice at Westminster, charged the perjury to have been committed on a trial at nisi prius, although at the Kmg's Bench sittings at West- minster. The prosecutor, to prove the trial at nisi prius. put in the nisi prius record with the minute of the verdict indorsed on it by the asso- ciate. There was no postea drawn up, and the associate stated that none would be drawn up, as a rule for a new trial was pending : — Held, to be sufficient proof of the trial at nisi prius. Rex V. Browne, 3 C. & P. 572 ; M. & M. 315. In an indictment for perjury, it was averred that a suit was instituted in the Prerogative Court by C. against B., to dispute the validity of a codicil to a will :— Held, that the production of the original allegations of both parties in the suit, signed by their advocates, and proof of their advocates' signatures, and that they acted as advocates in that court, such' allegations being produced from the registrar of the court, was sufficient proof of the averment, and that the caveat need not be produced. Reg. v. Tvrnrr, 2 C. & K. 732. That Issue Tried before Sheriff.]— In an indictment for perjury, on the trial of a cause under a writ of trial directed to the sheriffs of London, the oath is properly alleged to have been taken before the sheriffs, though, in fact, the cause was tried before the secondary. Brg. v. SoMesimer, 10 Q. B. 670 ; 2 Cox, C. C. 200 ; 17 L. J., M. C. 29 ; 12 Jnr. 283. An indictment for perjury alleged the trial of 556 an issue before E. S., Esq., sheriff of D., by virtue of a writ directed to the sheriff ; the writ of trial put m evidence was directed to the sheriff, and the return was of a trial before him ; but it was proved, that, in fact, the trial took place before a deputy, not the under-sheriff :— Held, no variance Reg. V. Bil/iii, 2 M. C. C. 297 ; 7 C. & P. 730. Appeal to Quarter Sessions.]— On an indict- ment for perjury committed on the hearing of a parish appeal at the quarter sessions, the pro- duction of the sessions book is not sufficient proof that the appeal came on to be heard ; and a regular record ought to be made upon parch- ment, the same as on a return to a certiorari, and that record, or an examined copy, must be produced. ]te.r v. 1I7«;y/. 6 C. & P. 366. Indictment and Trial for Felony or Misde- meanor.]— By 14 & 15 Viet. c. 100, s. 22, a eerti- Jirate cuntnining the mhntance mid efeot onlg domitthig the formal parf) of the ■indietment (ind trial for any felony or misdemeanor, jnir- porting to he signed hy the elerli of the court or other officer having the custody of the records of the court wliere such indietment was tried, or by the deputy of such clerk or other officer (for ir/iieh certificate n fee of 6«. M. and no more shall he demanded or tahen'), shall upon the trial of any indictment for pel jury, or suborn- ation of perjury, he su/ficient evidence of the trial of surk indictment for felony or misde- meanor, without proof of tlic-S'ignature or offi- cial character of the person appearing to have signed the same. An allegation, that " on kc, at &c., a certain indictment was preferred at the quarter sessions of the peace then and there holden in and for the county 'of W., against the defendant and one T. E., which indictment was then and there found a true bill," is not supported by the pro- duction of the original indictment with the words " true bill " indoreed on it, it being neces- sarj that a regular record should be drawn up and proved, either by its production or by an examined copy of it. Porter v. Cooper, 6 C. & P. 354. On the trial of an indictment for perjury at the Central Criminal Court, to prove the fact of a former trial in the same court : — Held, that the production, by the oflicer of the court, of the caption, the indictment, with the indorsement of the prisoner's plea, the verdict, and the sentence of the court upon it, together with the minutes of the trial made by the officer in court, was sufficient evidence of it ; and that the production of neither the record nor a certificate, under 14 & 15 Vict. c. 99, s. 13, and 14 & 15 Vict. c. 100, s 22, was necessary. Req. v. Newman, 3 C. & K. 240 ; 2 Den. C. 0. 390 ; rj Cox, C. C. 547 ; 21 L. J., M. C. 75 ; 16 Jur. 111. On the trial of an indictment for perj my, com- mitted on the hearing of an affiliation summons, under 7 & 8 Vict. u. 101, s. 2, it was proved that an infoi-mation was duly made, which was put in evidence and read, and that the putative father appeared at the petty sessions, and that upon the hearing of the information the perjury assigned was committed. The summons was not produced, nor service of it proved, but in all other respects the proceedings on the hearing of. the mfonna- tion were proved and appeared to have been regular ;— Held, that it was not necessary that the summons should have been produced to sus- Digitized by Microsoft® 557 CRIMINAL l^KW—Perjwry, etc. 558 tain a conviction for perjury on the above evi- dence. Beg. V. Smith, 1 L. E., C. C. 110 ; 37 L. J., M. C. 6 ; 17 L. T. 263 ; 16 W. K. UO ; 11 Cox, C. C. 10. On the trial of an indictment for perjury, it should be proved distinctly vrhat the charge vyas on the hearing- of vyhich the false evidence vcas given. Iirg. v. Can; 10 Cox, C. C. 564 ; 17 L. T. 217 ; 16 W. R. 137. Summonses before Justices or Police Magis- trates.] — A defendant was indicted for perjury alleged to have been committed by him on the hearing before justices of a summons charging him vrith being the father of an illegitimate child : — Held, that, to support the indictment, it was necessary to give evidence of the charge made by the mother, either by production of the original order made thereon, or by giving secondary evidence of the summons after notice to the defendant to produce it ; and that, in the absence of such notice, it was not sufllcient to produce the minutes of the proceedings by the cleric to the justices, those minutes being of no greater authority than the notes of a shorthand writer. Beg. v. Newall, 6 Cox, C. C. 21. On the trial of an indictment for perjuij, alleged to have been committed before magis- trates, on the hearing of a case punishable on summary conviction, the conviction by the magistrates is not receivable in evidence, be- cause it is irrelevant. Reg. v. Goodf allow, Gar. & M. .569. In an indictment for perjury before justices of the peace, there must be formal proof of the commencement of the proceedings by production of the summons, information, or the lilce. Beg. V. mirrell, 3 F. & F. 271. A. was indicted for wilful and corrupt perjury committed at the Westminster Police, Court. A summons was granted upon an information, and upon the hearing of the summons the perjury assigned was committed. At the trial the infor- mation was produced, but not the summons : — Held, not suificient ; the summons should have been produced. Beg. v. Whybrow, 8 Cox, C. C. 438. Examined Copy of Bill in Chancery.] — An office copy of a bill in Chancery, which a wit- ness examined with the original, but which office copy contained abbreviations, such as "pnl. este." for the words "personal estate" in the original bill, is not such an examined copy as will be evidence to support an allegation of a bill in Chancery on an indictment for perjuiy, committed in an affidavit in that suit in Chan- cery. Beg. V. Chnstian, Car. & M. 388. Proof that Defendant Examined.] — In an in- dictment, the supposed perjury arose upon evi- dence given in reply to the testimony of one of the defendants on the former trial, who was acquitted and examined as « witness. The in- dictment did not state his acquittal, nor did the minute of the verdict shew it : — Held, that this was immaterial, parol evidence being given that he was in fact examined. Bex v. Srowiie, 3 C. & P. 572; M. &M. 315. That Defendant was Sworn.] — Proof that the defendant was " sworn and examined as a wit- ness," supports an averment that he was sworn on the Holy Gospel, that being the ordinary mode of swearing. Bex v. Bowley, R. & M. 302. But see Be.i: v. Si' Carther, Pcalce, 155. Warrant of Attorney.] — An allegation in an indictment for perjury, that the defendant made his warrant of attorney directed to R. W. and F. B., "then and still being attorneys" of K. B., is proved by patting in the warrant of ' attorney. Bex v. Coolte, 7 C. & L. 559. Prohate of Will or Original.] — In an indict- ment for perjury, it was alleged that A. made his will, and thereby appointed B. his executor : the production of the probate is the proper proof of this allegation ; but if it had been necessary to prove that A. had devised real estates, the original will must have been produced, and one of the attesting witnesses called. Reg. v. Turner, 2 C. & K. 792. Expressions of Malice.] — To shew that perjuiy was wilful and corrupt, evidence may be given of expressions of malice used by the party to- wards the person against whom he gave the false evidence. Bex v. Munton, 3 C. & P. 491. Partnership.] — li A. is indicted for perjury, in swearing that he did not enter into a verbal agree- ment with B. and C. for them to become joint dealers and co-pa rtners in the trade or business of druggists ; and it appears that, in fact, B. was a druggist, lieeping a shop with which A. had nothing to do ; but that A. and C, being sworn brolicrs, could not trade, and therefore made speculations in drugs in B.'s name with his con- sent, he agreeing to divide profits and losses with A. and C. ; this will not support the indictment, as this is not the sort of partnership denied by A. upon oath. Bex v. Tnalter, 2 C. & P. ,500. Proof that Averment was Material.] — In an indictment for perjury, an express averment that a question was material lets in evidence to prove that it was so. Beg. v. Bennett, 3 C. & K. 124 ; 2 Den. C. C. 241 ; 5 Cox, C. C. 207 ; T. & M. 567 ; 20 L. J., M. C. 217 ; 15 Jur. 496. Prosecution, when confined to Certain Cases.] — A., in an affidavit, stated that he had paid all the debts proved under his bankruptcy, except two, as to which he explained. On an indict- ment for perjury- on this affidavit, one of the assignments of perjury was, that A. had not paid all the debts proved under his banlcruptcy ex- cept two ; and another, that certain creditoi's, naming them, besides the excepted two, were not paid in full : — Held, that if the first assign- ment was too general, the defendant should have demurred to it ; and that, although by the generality of its form the prosecutor was not precluded from proving the non-payment of other creditors besides those named, yet, as nanies were stated in the other assignment, it was reasonable to presume that the defendant would suppose that they were the persons, the non-payment of whose debts was to be relied on ; and that in fairness the prosecutor ought not to go into evidence of the non-payment of any other creditors than those named. Beg. v. Parlier, Car. & M. 639. Identity of Person Swearing Affidavit.] — B, was indicted for perjury committed in an affidavit, alleged to have been made by him in . order to obtain a marriage ■ licence. The evi- Digitized by Microsoft® 559 CKIMINAL 'LAW— Perjury, d-c. deuce shewed that some person went to the vioar-general's oflSce, and gave certain instruc- tions, in accordance with which an affidavit was ' filled up by one of the clerks, which, after hav- ing been read over to the applicant, was signed by him. B.'s father proved that the signature to the affidavit was in his son's handwriting. The custom of the vicar-general's office was for the clerk who filled up the affidavit to go with the applicant, and get him to swear to it before a surrogate. Neither the clerk in the vioar- general's office, nor the surrogate, could identify B. as having sworn to the affidavit, and, al- though the clergyman who married B. recognized him as being the person who was married under the licence granted on the strength of the affi- davit signed by him, yet he did not receive it from him on the day of the marriage, but he re- ceived it on the previous day from the verger of his church : — Held, that further proof of the identity of the person who swore to the affidavit with the person who signed it was necessary before B. could be convicted of perjury assigned on a false statement contained in it. Heg. v. Barnes, 10 Cox, C. C. 539. In Case of Affidavits.] — F. was indicted for perjury, committed by deposing to an affidavit in a cause wherein he was the plaintiff, and E. the defendant, that he owed him 501. : — Held, that, in support of this indictment, evidence was not admissible, that the cause of F. against E. was, after the making of the affidavit, referred by consent, and an award made that E. owed nothing to F. Beg. v. Moreau, 11 Q. B. 1028 ; 17 L. J., Q. B. 187 ; 12 Jur. 626. . In perjury, the affidavit of service of notice or application for leave to issue execution againSt a shareholder in a joint stock company is in- sufficient evidence not having the notice annexed to it. Beg. v. Hudson, 1 F. & F. 56. In perjury committed in an answer in Chan- cery, it is sufficient proof of the fact of swearing and the identity of the defendant, to prove the handwriting subscribed to the answer, and that the jurat was subscribed by the master as being sworn before him. Bex v. Morris, 1 Leach, C. C. 50. ;S. P., Beso v. Benson, 2 Camp. 508 ; Bex v. Morris, 2 Burr. 1189. On an indictment for perjury, in an answer to a bill in Chancery, the proving the handwritmg of the signature of the person who administered the oath, is sufficient proof that it was sworn ; and if the place at which such answer purported to have been sworn is in the jurat, it is sufficient evidence that the oath was administered at that place. Bex v. S_pencer, 1 C. & P. 260 ; K. & M. 97 A person cannot be convicted of perjury on an affidavit, if it refers to a former affidavit, which the prosecutor is not in a condition to prove. BexY. SaUey, 1 C. & P. 258 ; E. & M. 94. On an indictment for perjury, setting tortn, with proper innuendoes, a copy of a deposition before a magistrate, written in the English Ian- guage, and signed by the defendant, he may be convicted on proof of a verbal deposition in the Welsh language, of which the written deposi- tion, signed by him, is the substance. Beg. v. Thomas, 2 0. & K. 806. Who must proveFalse Statement.]— A person may be indicted for perjury who gives false evi- dence before a grand jury when exammed as a 560 witness before them upon a bill of indictment ; and another witness on the same indictment, who is in the grand jury-room while such person is under examination, is competent to prove that such witness swore before the grand jury; and so is a police-officer, who was stationed within the grand jury-room door, to receive the different bills at the door, and take them to the foreman of the grand jury; these persons not being sworn to secrecy, although the grand jury is so. Beg. y. Hnghes, 1 C. & K. 519. On an iudictment for perjury, alleged to have been committed at the quarter sessions, the chairman at the quarter sessions ought not to be called upon to give evidence as to what the de- fendant swore at the quarter sessions. Beg, v. Gaaard, 8 C. & P. 595. In support of an indictment for perjury, com- mitted on the trial of a plaint in a county court, it is not necessaiy to produce the judge's notes, i£ proof of the perjury can be established by witnesses who were present at the trial. Beg. v. Morgan, 6 Cox, C. C. 107. The notes of evidence taken by a judge on a trial are not admissible in evidence to prove what was said on that trial. When, therefore, on a trial for perjury, alleged to have been com- mitted by the defendant as a witness on a trial for felony before a Queen's counsel assisting the judges, and his notes of the evidence given on that occasion were tendered (on proof of his hand- writing) : — Held, that such notes were not ad- missible. Beg. V. CliiU, 5 Cox, C. C. 197. Defendant cannot shew that abandoned Count was True.] — If an indictment contains several assignments of perjury, on one of which no evi- dence is given on the part of the prosecution, the defendant cannot go into proof to shew that the evidence charged by that assignment of per- jury to be false, was in reality true. Bex v. Hemp, 5 C. & P. 468. Questions to Witnesses to Character.] — On the trial of an indictment for perjury the wit- nesses to character were asked, " What is the character of . the defendant for veracity and honour?" — and " Do you consider him a man likely to commit perjury I " Ih. What Evidence admissible.] — On the trial of an indictment for perjury, alleged to have been committed on the trial of an indictment for an assault, all the evidence that was admissible on the trial of the indictment for the assault is ad- missible on the trial of the indictment for per- jury. Beg. V. Harrison, 9 Cox, C. C. 503. Declarations in articulo mortis are not admis- sible in evidence on the trial of an indictment for perjury. Bex v. Mead, 4 D. & B. 120 ; 2 B. & C. 605. Admissions. ]— On the trial of an indict- ment for perjury on the crown side of the assizes, where it appeared that the attorneys on both sides had agreed that the formal proofs should be dispensed with, and that part of the prosecutor s case should be admitted, the judge wouldnot a low this admission. Beg. v. TliornUll, 8 C. & P. 574 A judge vriU not allow a crimin&l case upon the crown side of the assiz'^s to be tried on ad- missions, unless they are made at the trial by the defendant or his counsel, lb. ^ Digitized by Microsoft® 5til CRIMINAL I^A:^— Perjury, dc. 562 statements Hade at Trial of Election Petition.]— By 26 Vict. c. 29, s. 7, witnesses before commissioners for inquiring into the existence of corrupt practices at elections shall not he excused from answering questions on the ground that the answers thereto may criminate them, and " that no statement made by any per- son in answer to any question put by such com- missioners shall, except in cases of indictment for perjury, be admissible in evidence in any proceeding, civil or criminal :" — Held, that " except in cases of indictment for perjury " applies only to perjury committed before the commissioners, and, therefore, on an indictment for perjury committed at the trial of an election petition, evidence of answers to commissioners appointed to inquire into the existence of cor- rupt practices at the election in question is not admissible. Beg. v. Buttle, 1 L. E., C. C. 248 ; 39 L. J., M. C. 115 : 22 L. T. 728 : 18 W. R. 956. By s. 7 of the Corrupt Practices Prevention Act, 1863, no person summoned as a witness before any commissioners appointed under ,the Corrupt Practices Acts shall be excused from answering any question relating to corrupt prac- tices forming the subject of inquiry on the ground that the answer would tend to criminate himself, " provided that no statement made by any person in answer to any question put by or before such commissioners shall, except in cases of indictments for perjury, be admissible in evidence in any proceeding, civil or criminal:" — Held, that the exception in the proviso did not apply to an ex-officio information by the attorney-general for perjury. Reg. v. Slator, 8 Q. B. D. 267 ; 51 L. J., Q. B. 246 ; 30 W. R. 410 ; 46 J. P. 694. Docnments — Secondary Evidence.] — Asolicitor was indicted for perjury in having sworn that there was no di'af t of a certain statutory declara- tion made by a client. No notice to produce the draft had been given to the solicitor, and upon his trial it was proved to have been last seen in his possession. Secondary evidence having been given of its contents : — Held, that, in the absence of such notice, secondary evidence was inadmis- sible. Beg. v. Elworthy, 1 L. R., C. 0. 103 ; 37 L. J., M. C. 3 ; 17 L. T. 293 ; 16 W. R. 207 ; 10 Cox, C. C. 579. Where perjury is assigned upon a written instrument, subsequently lost, secondary evi- dence is admissible. Reg. v. Ifilnes, 2 F. & P. 10. When perjurjy is alleged as having been com- mitted before justices at petty sessions on the hearing of a charge contained in a written in- formation, that information must be produced, or its loss or destruction proved, before secondary evidence of its contents can be given on the trial of an indictment for perjury. Rea, v. Dillon 14 Cox, C. C. 4. « , ii. Number of Witnesses and Corroboration. What required.] — The evidence of one witness is not sufficient to convict of perjury, as there would be only one oath against another. Rex v. Lee, 3 Euss. C. & M. 78 ; 8. P., Champnev's case, 2 Lewin, C. C. 258. Jf a , Bat two witnesses are not essentially neces- sary to disprove the fact sworn to ; for, if any material circumstance is proved by other wit- nesses in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale and warrant a conviction. lb. And the rule does not apply where the evi- dence consists of the contradictory oath of the party accused. Rex v. Knill, 5 B. & A. 929, n. To prove perjury, it is sufficient if the matter alleged to be falsely sworn is disproved by one witness, if, in addition to the evidence of that witness, there is proof of an account, or a letter written by the defendant contradicting his state- ment on oath. Rex v. Mayhew, 6 C. & P. 315. A., in an affidavit, stated that he had paid all the debts proved under his bankruptcy, except two, as to which he explained ; in support of an , indictment for perjury upon that affidavit several creditors were called, who each proved the non- payment of his own debt : — Held, that this was not sufficient to warrant a conviction, and that as to the non-payment of each debt, it was necessary to have the evidence of two witnesses, or of one witness, and such corroborative testi- mony as is equal to the testimony of a second witness. Reg. v. Parlter, Car. & M. 639. The rule, that the testimony of a single witness is not sufficient to sustain an indictment for per- jury, is not a mere technical rule, but a rule founded on substantial justice ; and evidence confirmatory of that one witness in some slight particulars only, is not sufficient to warrant a conviction. Reg. v, Yates, Car. & M. 132 ; 5 Jur. 686. Although an assignment of perjury must be proved by two witnesses, it is not necessary to prove by two witnesses every fact which goes to make out the assignment of perjury. Reg. v. Roberts, 2 C. & K. 607. A., to prove an alibi for B., had sworn that B. was not out of his sight between the hours of 8 A.M. and 9 A.M. on a certain day, and on this pei-jury was assigned. Proof by one witness, that between those hours A. was at one place on foot, and by another witness, that between those hours B. was walking at another place six miles off :— Held, to be sufficient proof of the assignment of perjury. lb. Where perjury was assigned upon a statement made by the prisoner on oath, upon a trial at nisi prius, that in June, 1851, he owed no more than one quarter's rent to his landlord, and the prosecutor swore that the prisoner owed five quarters' rent at that date ; and to corroborate the prosecutor's evidence, a witness was called, who proved that in August, 1850, the prisoner had admitted to him that he then owed his land- lord three or four quarters' rent: — Held, first, that this was not such corroboration as is neces- sary to sustain an indictment for perjury. Reg. V. Boulter, 3 C. & K. 236 ; 2 Den. C. C. 396 ; 5 Cox, C. C. 543 ; 21 L. J., M. C. 57 ; 16 Jur. 135. Held, secondly, that two witnesses are not essentially necessary to contradict the oath on which the perjury is assigned, but that there must be something more than the oath of one, to shew that one party is more to be believed than the other. lb. To support an indictment for perjury there must be something proved in the case for the prosecution, making the oath of the prosecutor preferable to that of the defendant ; there need not be two distinct oaths, as one oath and cir- cumstances may be sufficient, lb. Although it is not necessary that the alleged Digitized by Microsoft® 563 peijury should be proved by two witnesses in contradiction of the prisoner, it is requisite that the peijury should be proved by something more than the mere contradictory oath of the pro- secutor. He must be corroborated by some in- dependent testimony. Reg. V. Braithwaite, 8 Cox, C. C. 2o4 ; 1 F. & F. 638. A party was charged with having falsely sworn that certain invoices bearing certain dates were produced by her to G. The only witness called was C., who swore that she had not produced those invoices, but that she had produced others of the dates of which he made a memorandum at the time :-Held, that the memorandum was a suUicient corroboration upon which to convict Meg. V. Webster, 1 F. & F. 515. The prisoner was convicted of pei-jury He was a policeman, having laid an information against a,publican for keeping open his house alter lavrful hours, and swore, on the hearing that he knew nothing of the matter except what he had been told, and that "he did not see any person leave the defendant's house after eleven " on the night in question. The perjury was assigned on this last allegation, and the evidence to prove its falsehood was, that the prisoner when laying the information, said that "he had seen four men leave the house after eleven," and that he could swear to one as W. On two other occasions the prisoner made a similar statement to two other witnesses ; and W. and others did, in fact, leave the house after eleven o'clock on the night in question ; that on the hearing the prisoner acknowledged that he had offered to smash the case for 30s. ; that he had talked, in the presence of another witness. of making the publican give him money to settle it ; and he had, in fact, offered to the publican to settle it for \l., and had said that he had received 10«. to smash the case, -and was to have 10«. more : — Held, that the evidence was suffi- cient to prove the perjury assigned, and that the conviction was right. Beg. v. Hooli, Dears. & B. C. C. 606 ; 8 Cox, C. C. 5 ; 27 L. J., M. C. 222 ; 4 Jur., N. S. 1026. In a case of perjury, on a charge of bestiality, the defendant swore that he saw the prosecutor committing the offence, and saw the flap of his trousers unbuttoned. To disprove this, the pro- secutor deposed that he did not commit the offence, and that his trousers had no flap ; and, to confirm him, his brother proved, that, at the time in question, the prosecutor was not out of Ms presence for more than three minutes, and his trousers had no flap : — Held, to be sufficient corroborative evidence to go to the jury. Heg. v. Gardiner, 8 C. & P. 737. An assignment of perjury that the prosecutor did not, at the time and place sworn to, or at any other time or place, commit bestiality with a donkey (as sworn to) or with any other animal whatsoever, is sufficiently proved by the evidence of two witnesses falsifying the deposition which had been sworn to by the defendant. 11}. The prisoner was charged with perjury, for having falsely sworn before magistrates at petty sessions, that D. E. was the father of her ille- gitimate child. At the trial of the prisoner the imputed father, D. R., swore that he never had intercourse with her. In corroboration of D. R., a witness was called who swore that the prisoner had told witness, at a time when she generally denied being with child, that " D. R. had never touched her clothes : " — Held, that, as the nega- CRIMINAL LAW— Per>,-2/, dec. 564 Juiy, It was not a corroboration of D Rrtesti x^^.°". Jitcts ^c^ ^5-^'^ ---" - to bridv i.'"'* ^'''^'■^^ "■ <=«tain ^person to biandy, &c., on a certain day, instead L i^ *^-' '^'*°'*'= t^-'^^' *^t he^ hid not treated him at a particular public-house on a ^wnTv^r'-^^^-^'l^' *^^* P''°°f of treating at sXen"; °"''' ^f *^° '^'^*'"'=* witnesses ias t^^.«?y fPP?"' "■ ''o^^ictiM, because any witness of a treating at a separate time and place on the same day, was sufficient corrobora- tion of the witness who spoke only to one act of treating. Reg. v. Save, 13 Cox, C. C. 174 A person m his deposition before a magistrate deposed to several material facts in a cast of lar- ceny. When called as a witness at the quarter sessions on the trial of the larceny, he contra- dicted every statement he had made before the magistrate. In an indictment for perjury his evidence on the trial at the quarter sessions' was charged to be false :-Held, that the deposition before the magistrate was not, by itself, sufficient proof that the evidence on the trial at the quarter sessions was false, but that other confirmatory evidence must be given, to satisfy the jury that the statements made by the party at the quarter sessions were, in point of fact, false, or that the statements in the deposition were in point of fact, true. Reg. v. Wheatland, 8 C. & P. 238. To convict a person of perjury in swearing falsely before a grand jury, it is not sufficient to shew that the person swore to the contrary before the examining magistrate, as non constat which of the contradictory statements was the true one. Reg. V. Hughes, 1 C. & K. 519. d. Trial. Jurisdiction.] — ^A judge at nisi prius has no jurisdiction to try an indictment for perjury at common law, found at the quarter sessions, and removed by certiorari into K. B. ; an iadiot^ ment so found being void. Rex v. Haines, R. & M. 298. Venue on Bemoval of Indictment from Central Criminal Court.]— By 9 & 10 Vict. c. 24, s. 3, every writ of certiorari for removing an indict- ment from the Central Criminal Court shall specify the county or jurisdiction in which the same shall be tried, arid a jury shall be summoned and the trial proceed in the same manner in all respects as if the indictment had been originally preferred in that county or jurisdiction. An in- dictment was .found by the grand jury in the Central Criminal Court for perjury committed within the jurisdiction of the Central Criminal Court. The perjuries assigned in one count were in respect of an oath taken before a commis- sioner in chancery, in the city of London ; and in the other count, in respect of an oath taken in the court of Common Pleas, in Middlesex. The indictment was removed by certiorari into the court of Queen's Bench, and Middlesex was specified as the county in which the indictment should be tried, and the jury was taken from that county : — Held, that the court of Queen's Bench II 9 Digitized by Microsoft® 565 CEIMINAL l.A'W— Perjury, d;c. 566 had a discretion to name in the certiorari the county or jurisdiction in which the trial was to take place, and that by the jurors summoned from that jurisdiction the same issues could be tried that would have been tried in the Central Cri- minal Court had the indictment not been re- moved. Reg. V. Castro, 9 L. R., Q. B. 350 ; 43 L. J., Q. B. 105 ; 30 L. T. 320 ; 22 W. E. 187 ; 12 Cox, 0. C. 454. Practice where Suit Undetermined.] — It is the practice of the Central Criminal Court not to tiy an indictment for perjury arising out of a civil suit, while that suit is any way undeter- mined, except in cases where the court in which it is pending postpones the decision of it in order that the criminal charge maybe first disposed of. Rex V. Ashbm-n, 8 C. & P. 50. See Peddcll v. Rutter, 8 C. & P. 340. Verdict — Several Counts. ] — An indictment con- tained four counts, each of which stated practi- cally the same offence. The record stated the wiit of venire to try whether the defendant " be guilty of the perjury and misdemeanor afore- said," and the verdict, that " he is guilty of the perjury and misdemeanor aforesaid," and a general judgment thereon : — Held, that the word " misdemeanor " was nomen collectivum ; and that, therefore, venire and verdict applied to all the counts ; and the judgment, being for imprisonment only, was divisible. Ryalls v. Reg. iin error'), 11 Q. B. 781 ; 3 Cox, C. C. 354 ; 18'L. J., M. C. 69; 13 Jur. 259. Punishment — Penal Servitude.] — The 2 Geo. 2, c. 25, s. 2, imposes the sentence of transportation (altered to penal servitude) on persons convicted of perjury according to the laws then in being. A person was convicted of perjury on an indict- ment, one count of which averred that the oath was taken in the Court of Chanceay before a commissioner authorized to take oaths by 16 & 17 Tict. 0. 78 ; he was sentenced to penal servitude upon that count : — Held, that the OjBfence of perjury consists in taking a false oath in a judicial proceeding, and whether the oath is taken in a judicial proceeding before a court of common law, or acting under a statute, it is equally an oath taken in a judicial proceeding, and punishable by penal servitude. Reg. v. Castro, 9 L. E., Q. B. 350 ; 43 L. J., Q. B. 105 ; 30 L. T. 320 ; 22 W. E. 187 ; 12 Cox, C. C. 454. Sentence — Punishment before Penal Servitude need not be Given.] — The 2 Geo. 2, c. 25, s. 2, authorizes the judge before whom a person shall be convicted of perjury, to order such person to be sent to a house of correction for seven years, there to be kept to hard labour ; " and thereupon judgment shall be given that the person convicted shall be copimitted accord- ingly, over and beside such punishment as shall be adjudged to be inflicted upon such person, agreeable to the laws now in being:" — Held, that this statute did not impose on the court the necessity of awarding any punishment previous to that of penal servitude, so as to give the sentence of penal servitude the form of an addi- tional punishment. Castro v. Reg., 6 App. Cas. 229 ; 50 L. J., Q. B. 497 ; 44 L. T. 350 ; 29 W. E. 669 ; 45 J. P. 452 ; 14 Cox, C. C. 546— H. L. (E.) Two Counts — Second Term of Imprison- ment beginning at Expiration of First,] — An indictment for perjury contained two counts, charging perjury to have been committed by the defendant on two different occasions, one in the progress of a. trial, the other in an affidavit in chancery : — Held, that they were distinct offences, and a punishment might be inflicted in respect of each. lb. That the full punishment of seven years' penal servitude might be inflicted for each offence, and that the second term of penal servitude was pro- perly made to begin at the termination of the first term. lb. 2. False Declabations. a. Customs. Making false declarations in matters relating to the customs, see 16 & 17 Vict. c. 107, s. 198, and 18 & 19 Vict. c. 96, s. 38. b. On Begistration of Voters and at Farlia- mentary Elections. Statute.]— By 28 & 29 Vict. i;. 36, s. W, persons changing their abodes before tJie last day of July in any year, and objected to, may malte declarations as to tlie tme place of their abodes and qualification, for the purpose of being registered as voters, and,'bj s. 11, persons falsely signing such declarations, will be guilty of a misdemeanor, punishable by fine or imprison- ment for a term not exceeding one year. Allegations in Indictment are for the Court to Decide upon.] — An indictment for wilfully making a false answer to a third question put to a party tendering his vote at an election of members of parliament, in pursuance of 2 & 3 Will. 4, c. 45, s. 58, had been removed by cer- tiorari. At the trial, several objections were taken, grounded on the omission of proper alle- gations in .the indictment : — Held, that being on the record, they should be left to the decision of the court. Reg. v. Bowler, Car. & M. 559 ; 6 Jur. 287. By whom Questions are Asked.] — On an indictment under 2 & 3 Will. 4, c. 45, s. 58, for giving a false answer at the poll at an election of members of parliament for a borough, it is not essential that the returning officer should himself put the three questions to the voters under s. 53, it is sufficient if the town clerk does it in his presence, and by his direction ; neither is it necessary to shew that the agent who required the questions to be put was ex- pressly appointed by the candidate ; it is sufficient to shew that he has acted as agent for the candi- date. Reg. V. Spalding, Car. & M. 568. Part Omitted.] — A voter having changed his residence since the last registration, cannot be indicted under 2 & 3 Will. 4, c. 45, for swearing that he has still the same qualification, if the sheriff's deputy . should omit, at the time the voter .tenders his vote, to read over to him the specific qualification from the register. Reg. v. Lucy, Car. & M. 511. Same Qualification.] — The words, "the same qualification " mean that the voter must, at the Digitized by Microsoft® 567 CRIMINAL JjA'W— Perjury, dc. time of the election, be in possession of the iden- tical qualification in respect of which he was registered. It is not enough if he possesses pre- mises of a similar description. Reg. v. Dods- worth, 8 C. & P. 218 ; 2 Jur. 131. Must he Made Wilfully.] — If a person knew that at the time of polling he gave a false answer as to his having the same qualification as at the time of registration, it would be no defence to an indictment for that offence, that he acted under the advice of an electioneering committee ; but if, possessing property of equal value with that for which he was registered, he acted bona fide, and under an impression that he was entitled to vote, he ought to be acquitted. lb.. The word wilfully, in an indictment on the 2 & 3 Will. 4, c. 45, s. 58, for giving a false answer at the poll, should be construed in the same way as in an indictment for perjury, and- be supported by the same sort of evidence. Reg. V. Ellis, Car. & M. 564 ; 6 Jur. 287. Evidence.] — Where an averment states the words of the af&rmative answer, they must be proved as alleged. Reg. v. Bowler, Car. & M. 559 ; 6 Jur. 287. Proof of Register.] — On an indictment against a voter for making a false declaration as to his possession of the same qualification, under 2 & 3 WiU. -4, e. 45, s. 58, a copy of the original register, made according to s. 55, may be received in evidence ; and it is sufScient if it resembles the original in respect of the voter's name and description. Reg. v. Bodsworth, 8 C. & P. 218 ; 2 Jur. 131. Sufficiency.] — Dpon an indictment, in falsely taking the freeholder's oath at an election of a knight of the shire in the name of J. W. ; it appearing by competent evidence that the free- holder's oath was administered to a pei-son who poUed on the second day of th e election in the name of J. W., who swore to his freehold and place of abode, and that there was no such person ; and that the defendant voted on the second day, and was no freeholder, and some time after boasted that he had done the trick, and was aot paid enough for the job, and was afraid he should be pulled up for his bad vot^; and it not appearing that more than one false vote was given on the second day's poll, or that the defendant voted m his own name, or in any other than the name ot J W —Held, that there was sufficient evide;Qoe for the jury to presume that the defendant voted ■in the name of J. W., and consequently to find him guilty of the charge as alleged in the indict- ment Re^ V. Priee, 6 East, 323; 2 S^^^t^; 52^; And see Re^ v. Leefe, 2 Camp. 139 ; and PureeU V. WNamara, 9 East, 157. o. Municipal Elections. • By 45' & 46 Vict, c 50, s. 59 (which repeals 5 l\ Wm. 4, c. 76, s. 34), ■ratt, Dears. C. C 502 ; 3 C. L. R. 686 ; 4 El. & Bl. 860 : 24 L J M. C. 113 ; 1 Jur., N. S. 681. On an indictment under 57 Geo. 3, u. 90, a man might have been convicted of having entered a wood, and of being found armed there, though he was not seen in such wood. It was sufficient if there was evidence to shew that he had been there armed. In this case the prisoner was not seen in the wood, but a gamekeeper saw. flashes in the wood and heard reports of guns, and saw the prisoner afterwards in the close adjoining the wood. Sea; v. Worker, 1 M. C. C. 165. ' Open Land — ^What is.] — ^A person was con- victed under 9 Geo. 4, c. 69, s. 1, for unlawfully entering upon open land with a net, by night, for the purpose of taking and destroying game. The land was a highway, consisting of a metalled road, with waste land of varying extent on either side : — Held, that this was not open land, within the meaning of the statute. Veysey v. HosMns, 34 L. J., M. C. 145 ; 11 Jur., N. S. 737 ; 12 L. T. 303 ; 13 W. E. 652. Warren — Question of Fact.] — B. was caught with rabbits at night in a field forming part of a farm over which H. had the right of sporting. The justices found as a fact that this field was not a warren or ground used for the breeding or keeping of hares or rabbits within the 17th section of the Larceny Act, 1856, and convicted B. of night poaching under 9 Geo. 4, c. 69, s. 1 : — Held, that it was a question of fact whether the place was within this description ; and that upon this finding the conviction was right. Bexan v. HopliiTison, 34 L. T. 142. Intention to take Game in particular Place.] — A count stated that the prisoners were in a field called A., for the purpose of then and there taking game : — Held, that they could not be convicted on that count, unless the jury was satisfied that the prisoners had an intention of taking game in that particular field. Meic v. Ccupewell, 5 C. & P. 549. On an indictment on 57 Geo. 3, c. 90, the prisoner having entered a given close with intent , there to kill game, and being there found armed, it was necessary to prove an entry with that in- tent, into the close specified. Mex v. Ba/rliam, 1 M. C. C. 151. To sustain an indictment for night-poaching, the parties must have been in the place charged in the indictment, with intent to destroy . game there, and it is incumbent on the prosecu- tor to convince the jury that the defendants had an intent to destroy game in .the particular place mentioned in the indictment. Rex v. ,7C. &P.231. In Concert and Co-operation.] — To support an indictment for night-poaching by three or more being armed, it is not sufficient to prove that one Digitized by Microsoft® 576 of the prisoners was in the place laid in the indictment, and that the rest of the party was in another wood 'which was separated from the place mentioned in the indictment by a turnpike road. Rex v. JOoiosell, 6 C. & P. 398. If one of a party of poachers is found in .the land specified, the rest co-operating in the pur- suit in adjoining land, all may be alleged to be found in the lana specified. Rex v. Andrews, 2 M. & Rob. 37 ; S. P., Rex v. Locltett, 7 C. & P. 300. Those who are watching at the outside of a preserve, for the purpose of giving the alarm, on the approach of the gamekeeper, to others who are in the preserve, and who afterwards go into the preserve for that purpose, are equally guilty with those who enter the preserve at first. Rex V. Pamy, 7 C. & P. 282. Two of the prisoners were seen together run- ning out of a coppice, one of them with a gun. The third immediately afterwards came out, of it alone with a gun and a pheasant : — Held, insuf- ficient evidence of concert. Meg. v. Jones, 2 Cox, C. C. 185. It is not essential that all the prisoners charged should actually enter the inclosed places ; but, if they are associated together for the common purpose of taking game contrary to the statute, and some of the party actually enter such place to effect that purpose, while the others remain near enough to aid and assist, they may all be convicted under an indictment charging them with being in such place, for such purpose. Reg. V. Wiittaher, 2 C. & K. 636 ; 1 Den. C. C. 310 ; 3 Cox, C. C. 50 ; 17 L. J., M. C. 127. It is not necessary to constitute the offence of thi'ee or more pereons armed entering land in the night to take game, that all the three persons should be in one close, or that the land should be in the occupation of one person. Rer/. v. Vezzell, 3 C. & K. 150 ; 2 Den. C. C. 274 ; 5 Cox, 0. C. 188 ; 20 L. J., M. C. 192 ; 15 Jur. 434. One of the prisoners may be in Whiteacre, another in Blackacre, and another in Greenacre, and the land may be in the occupation of dif- ferent persons. The offence is complete if three persons are in one common party unlawfully upon any land, whether open or inclosed land, for the common purpose of illegally destroying game ; and it is sufficient to describe the close of land as inclosed or open land, in the occupation of a certain person or of certain persons. II). And see Reg. v. NicUess, and Reg. v. Eaton, ante,. col. 574. Armed — SeciBions under Eepealed Enact- ment.] — It was no answer to a charge on 57 Geo. 3, c. 90, for being found armed in the night in a wood, with intent to luU game, that the prisoners put down their arms and left them before they were seen, if it was perceived that some one was there armed before they were seen. Rex V. JVasJi, R. & R. C. C. 386. On an indictment on 57 Geo. 3, c. 90, for being out armed, with intent to kill game,^ it appeared that several persons were out with such intent, but only one of them was armed with a gun :— Held, that the rest, who were unarmed, were liable to be convicted under that act. Rex v. Smith, E. & R. C. C. 368. ^ For if any one of the party was armed, it was sufficient to bring the whole party within the statute. lb- „ „ „n • j. On an indictment on 57 Geo. 3, c. 90, agamst a person for being found armed in the night, 577 CEIMINAL 'LAW— Poaching, &c. 578 with intent to Hll game : — Held, that if aeveral ■went into a close in the night to kill game, and one had arms without the knowledge of the others, the other persons who were unarmed were not liable to be convicted. Hex v. Southern, R. & E. C. C. 444. Weapons — ^What are.] — Large stones are offen- sive weapons, within 9 Geo. 4, c. 69, s. 9, if the jury is satisfied that the stones are of a descrip- tion capable of inflicting serious injury if used offensively, and were brought and used for that purpose. BeSB v. Grice, 7 C. & P. 803. The mere use of a small stick, as a weapon, by a poacher, in a sudden affray with gamekeepers, is not enough to prove such stick an offensive weapon, under 9 Geo. 4, c. 69, s. 9. The jury must be convinced that the party took it with him for the purpose of offence. Hex v. Fry, 2 M. & Kob. 42. A party out at night, in pursuit of game, carried a thick stick large enough to be called a bludgeon, but which he used at other times as a crutch, he being lame : — Held, that it was a question for the jury whether the prisoner had taken out this stick to use as an offensive weapon, or merely for the purpose to which he usually applied it ; and that although it was a weapon within the statute, and might be used offen- sively, yet that, unless the defendant took it out with an intention of so using it, the indictment could not be sustained. Hex v. Palmer, 1 M. & Bob. 70. An indictment alleged that the defendant and others were armed with bludgeons and other offensive weapons, and the evidence was that they had sticks : — Held, that a stick was not necessarily an offensive weapon, in the absence of evidence of its size, &c., even although it iad been used offensively. Reg. v. Merry, 2 Cox, C. C. 240. Night poachers cai-rying things not apparently weapons, but capable of being used as such, and brought out to serve for both harmless and offensive weapons, are armed within the mean- ing of 9 Geo. 4, c. 69, s. 9. Reg. v. Sutton, 13 Cox, C. C. 648. Three men in company were seen hunting game in the night-time with dogs. Two of the men were not in any way armed. The third, who was lame, only carried the stick with which he usually walked : — Held, that the jury should not find him guilty unless satisfied that this walking-stick was an offensive weapon, and that he had carried it vrith the intention of using it as an offensive weapon, should occasion arise. Reg. V. WilUams, 14 Cox, C. C. 59. In a case of night poaching by three or more armed, if one has a gun, all are armed within 9 Geo. 4, c. 69, s. 9. Reg. v. Ooodfellow, 1 C. & K. 724 ; 1 Den. C. C. 81 ; S. P., Reg. v. Andrews, 1 Cox, C. C. 144 ; Reg. v. May, 5 Cox, C. C. 176. What is Game.] — A person cannot be con- victed under 9 Geo. 4, c. 69, s. 9, for entering land by night, armed, for the purpose of taking game, whose object is to steal young pheasants which had been hatched by a hen, and which had not yet become wild. Reg. v. Ga/rnliam, 2 F. & F. 347 ; 8 Cox, C. C. 451. b. Apprehension of Offenders. By Gamekeepers.] —When gamekeepers find poachers in a wood, they need not give any intimation by words that they intend to appre- hend—the circumstances are suiEcient notice ; and if a person out poaching sees a man running after him, he may fairly presume that the person means to apprehend him. Rex v. Davis, 7 C. & P. 785. On an indictment of prisoners for night poach- ing, and for assaulting a gamekeeper with intent, evidence of the common intent to poach does not sustain the allegation of a common intent to wound. Reg. v, Doddridge, 8 Cox, C. C. 335. The prisoners were seen upon the land of the prosecutor at night in pursuit of game. They escaped into a highway and there assaulted the keepers. But the keepei-s stated that they had not followed them into the highway with an int^tion to arrest them there : — Held, that there being no intention on the part of the keepers to arrest them at the time when the attack was made upon them, it was not an assault within 9 Geo. 4, c. 69. 11. Gamekeepers, who were out watching in the night, heard fijing of guns in the preserves of their employer, and they waited in a turnpike road, expecting the poachers to come there, which they did, and an affray ensued between the gamekeepers and the poachers : — Held, that, if the gamekeepers were then endeavouring to apprehend the poachers, they were not justified in so doing. Reg. v. Meadliam, 2 C. & K. 633. A gamekeeper, or other person lawfully autho- rized under 9 Geo. 4, c. 69, s. 2, may apprehend persons found offending under that act, without calling on them to surrender, if the circumstances are such as to constitute notice of his purpose. Rex V. Paym, 1 M. C. C. 378. A person who is employed by a lord of a manor, as a watcher of his game preserves, is a person having authority to apprehend night- poachers, and he need not have any authority from the lord of the manor. Rex v. Price, 7 C. & P. 178. Where a person was found night poaching on the manor of A. by one of his watchers, and was pursued off the manor, and then on to it again, and there snapped his gun at the watcher, he was guilty of a capital offence under 9 Geo. 4, c. 31, ss. 11, 12. Ih. The gamekeeper of a person who has merely the right of shooting over land is not justified in apprehending a person unlawfully being upon such land by night, for the purpose of taking game. Beg. v. Price, 5 Cox, C. C. 277. A gamekeeper appointed by a person having only a permission to shoot, trying to take a gun fi'om a poacher, and in the scuffle causing a loaded gun to go off, which killed the poacher, is guilty of manslaughter. Reg. v. Wesley, 1 F. & F. 528. A person having only a right of shooting over land has no right to empower keepers to appre- hend parties trespassing in search of game ; and on their resisting with no greater violence than is used by the keepers, they will not be liable for an assault ; but if the trespass is in the night, they may be indicted for night poaching. Reg. V. Wood, 1 F. & F. 470. To justify the apprehension of an offender, under 1 & 2 Will. 4, c. 32, s. 31, it is only neces- sary that he should have been made to under- stand, by the person authorized under that section, that he is required to tell his christian name, surname, and place of abode, and that he Digitized by Microsoft® 579 CEIMINAL luAW— Poaching, dc. should have refused to comply with such requisition. It is not necessary that he should have been required both to quit the laud and also to tell his name. Beg. t. Prestney, 3 Cox, Ci G. 505. By Policemen.] — A policeman has no power under 25 & 26 Vict. c. 114, to apprehend persons whom he may suspect of coming from land where they have been unlawfully in pursuit of game, and such persons may lawfully resist and use such violence as is necessary to prevent their apprehension. JReg. v. Spencer, 3 K. & F. 854. Where, under such circumstances, several per- sons resist with intent only to prevent their apprehension, and one of them is guilty of excess, the others ai-e not responsible for the act of their companion exceeding the common intent. li. A policeman can only justify stopping and searching a cart upon a highway under 25 & 26 Vict. c. 114, where he has good cause to suspect that the cart is carrying game which has been unlawfully obtained ; and upon an indictment for assaulting the policeman in the execution of his duty under such circumstances, it is necessaiy to prove the existence of reasonable grounds of suspicion ; where no reasonable grounds of suspicion can be shewn, persons are justified in resisting the search. Meg. v. Speiwei; B F. & F. 857. By other Persons.] — The servant of the owner of a wood attempted to apprehend a poacher whom he found there at eight o'clock on the morning of the 17th December, and the poacher shot at him : — Held, that this was not a capital offence within 9 Geo. 4, c. 31, ss. 11, 12, as there was no proof that the poacher was in pursuit of game an hour before sunrise. Hea; v. Tomlimon, 7 C. & P. 183. The 14 & 15 Vict. c. 19, s. 11, which gives any person a right to apprehend persons committing indictable offences in the night, applies to persons night poaching within 9 Geo. 4, c. 69, s. 9, although the night is defined to begin and end at different times in the two statutes. Heg. v. Sanderson, 1 F. & F. 598. c. Iiimitatlou of Time for Prosecution. Prosecution commenced within Twelve Months.] — B. and G. were convicted of night poaching. The indictment was upon 9 Geo. 4, c. 69 ; by s. 4 of which it is enacted, that the prosecution for every offence "punishable by indictment by virtue of this act shall be com- menced within twelve calendar months after the commission of the offence." The offence was committed on the 4th of December, 1845. The information before the justices, and wan-ant, were on the 19th of December, 1845. B- was apprehended and committed on the 5th of September, 1846, and G. on the 21st of October, 1846 The indictment was preferred on the Btn of April, 1847 :— Held, that the prosecution was commenced in .time, and the conviction right. Beg. V. Brooke, 1 Den. 0. C. 217 ; 2 0. & K. 402: 2 Cox, C. C. 436. Where it appeared that the offence was com- mitted on the 12th Janua^, 1844, and the indictment was preferred on the 1st March, 1845, Digitized by Microsoft® 680 and the warrant of commitment by which the defendant was committed to take his trial was given in evidence, and it was dated on the 11th December, 1844 :— Held, that it was sufficiently shewn that the prosecution was commenced within twelve calendar months after the com- mission of the offence, within s. 4. Beq. v. Austin, 1 C. & K. 621. In a case of night poaching by persons armed, the offence was committed on the 4th December, 1845. On the 19th December, 1845, information of the offence was made before a magistrate, who on that day granted warrants to apprehend A. and B., two of the offenders. On one of these warrants A. was apprehended and committed for trial on the 16th September, 1846 ; B. being apprehended on the other wan-ant, and com- mitted for trial on the 21st October, 1846. The indictment -yvas preferred and found on the 5th April, 1847 : — Held, that the prosecution was commenced within twelve calendar months after the commission of the offence, and that it was ' commenced by the information and wan-ants to apprehend, or at all events by the apprehen- sion of the prisoners. Beg. v. G'i'bson, 2 C. & K. 402. QuEei-e, whether the preferring of an indictment against a party for night poaching, which is ignored, is a commencement of the prosecution within 9 Geo. 4, c. 69, s. 4, so as to wan-ant the conviction of the party on another indictment preferred four years after the offence. Bex v. Mlminster, 7 C. & P. 228. The issuing of a warrant of apprehension is not a commencement of proceedings within 9 Geo. 4, c. 69, s. 4. Beg. v. Hv,ll, 2 F. & F. 16. Upon the trial of an indictment in order to prove that the proceedings were commenced within twelve months after the commission of the offence, a warrant for the party's apprehension issued within the twelve months was produced ; but the information on which the wairant was founded was not put in evidence : — Held, that in the absence of the information, the warrant was not legal evidence that the proceedings had been commenced within the time limited. Beg. V Parher, 9 Cox, 0. C. 475 ; L. & C. 459 ; 33 L. J., M. C. 135 ; 10 Jul-., N. S. 596 ; 10 L. T. 463 ; 12 W. B. 765. C. was indicted for night poaching on the 6th February, 1863. He pleaded guilty, but subse- quently applied by his counsel for leave to with- draw the plea, and to move in arrest of judgment, upon the ground that the proceedings against him had not been commenced within twelve calendar months, as directed by 9 Geo. 4, c. 69, s. 4 :_Held, that the application to withdraw the plea was one which ought to be granted, and that as no warrant or information was produced shewing that proceedings had been commenced within twelve months, the objection was fatal. Beg. V. Casbolt, 21 L. T. 263. d. Indictment. Averment of Place.] —An indictment on 57 Geo. 3, c. 90, charging a party with having en- tered ikto a forest, chase, &c., with mtent to destroy game, and being found armed m the night, must, in some way or other, have particu- larized the place. B^x v. ii'^^^y- R- ^ ^- ^- *^- '^\ an indictment under 9 Geo 4, o. 69, s. 9, it is sufficient to charge entering, &c., certain land .581 CKIMINAL LA.W—Poa<:Mtig, dc. 582 in the occupation of A., without specifying whether it was inclosed or not. Sex v. Andrews, 2 M. & Kob. 37 : S. P., Beg. v. Morris, 5 Cox, C. C. 205. Or to name any particular, close ; it is suflBcient to say, " land in the occupation of B. or C." as the fact may be. Eeg. v. Uezzell, T. & M. 598 ; 2 Den. C. 0. 27i ; 5 Cox, C. C. 188 ; 3 C. & K. 150 ; 20 L. J., M. C. 192 ; 15 Jur. 434. But " a certain coTer in the parish of A. " is too general a description to sustain an indict- ment for poaching. Rex v. Crich, 5 C. & P. 508. An indictment for night poaching stated the offence to have been committed in a wood, called " the Old Walk, of, and belonging to, and then in the occupation of James, Earl of W. ; " and it was proved that the occupation was correctly stated, but that the name of the wood was Long Walk, and that it had never been called Old Walk : — Held, a variance. Rex v. Owen, Car. C. L. 309 ; 1 M. C. 0. 118, To whom Iiand belongs.] — It is sufficient to allege that the land is land " of and belonging to J. W. D.," without stating it to be in the occu- pation of J. W. D. Reg. v. Riley, B C. & K. 116. Assaulting Gamekeeper.] — An indictment for assaulting a gamekeeper with a. weapon, stated that the defendants were in certain land of J. R., Earl of B., by night, armed with guns, for the purpose of destroying game, and that they were " then and there in the said land by night, as aforesaid, by one W. K., the servant of the said J. R., Earl of B., then and there having lawful authority to seize and apprehend the said [defen- dants] found," and that the defendants with the guns assaulted and offered violence to W. R. : — Held, that the indictment was bad, as it did not sufficiently shew that the defendants, when found by W. R., were committing any offence against the 9 Geo. 4, c. 64. Reg. v. Curnoclt, 9 C. & P. 730. By Night.] — Where an indictment alleged that A., B., C, D., to the number of three and more together, did by night unlawfully enter divers closes there situate, and being in the occupation of B., and were there and then in the said closes, aimed with guns for the purpose of destroying game :— Held, that it did not contain a sufficient averment that the defendants were by night in the closes for the purpose of destroying game. Dames v. Rex (in error"), 10 B. & 0. 89 ; 5 M. & R. 78. Being Armed.] — In an indictment for night poaching, it is advisable to insert a distinct aver- ,ment that the defendants were armed when they entered and were on the land, in addition to the usual allegation, " being then and there by night as aforesaid armed." Rex v. Wills, 7 C. & P. 811. A count for assaulting a gamekeeper alleged that the defendants, with other persons, to the number of three or more, entered by night a certain close with guns and other offensive -weapons, for the purpose of taking and destroy- ing game, and then proceeded to allege that the ■defendants being then and there in the said land were found by one H. S., the servant of B. W. W., and there with the said guns assaulted and beat the said H. S. :— Held, that the count was de- fective for not alleging that the defendants were in the close armed with g^ns, &c., according to the language of s. 9 of 9 Geo. 4, c. 69. Reg. v. May, 5 Cox, C. C. 176. An indictment charged A., B. and six ' others, " that they, being respectively armed with guns and other offensive weapons, entered." A. and B. were each proved to have been armed with a gun, the other six with bludgeons. Objection, that the averment, " other offensive weapons " (not specifying what), made the arming of the other six only constructive, which was not suf- ficient to bring them within the statute : — Held good. Reg. v. Oood/ellow, 1 Den. C. C. 81 ; 1 C. & K. 724. Previous Convictions.] — ^An indictment under 9 Geo. 4, c. 69, s. 1, that on the 20th of Decem- ber, 1854, C. was convicted for that he, within the space of six calendar months last past, by night, after the expiration of the first hour after sun- set, and before the beginning of the first hour before sunrise, did, by night, then and, there un- lawfully enter a close with a gun, for the pur- pose of then and there taking and destroying game, and that he was then sentenced to be im- prisoned lor the period of three calendar months ; that afterwards, to wit, on the 27th of November, A.D. 1858, he was duly convicted, for that he, within six calendar months next before, &c., to wit, on the 24th of November, 1858, in the night of the same day, by night, unlavrf uUy did enter, and be in and upon certain inclosed land, with certain instruments, for the purpose of killing, taking and destroying game thereon, this being his second offence, and was then adjudged to be imprisoned for six calendar months — is good, as it sufficiently shews upon the face of it, that two previous convictions of offences within the terms of the act had taken place. Cureton v. Reg. (in error-), 1 B. & S. 208 ; 8 Cox, C. C. 481 ; 30 L. J., M. C. 149 ; 9 W. E. 665. Joinder of Counts.] — A count for night poach- ing may be joined with a count for assaulting a gamekeeper authorized to apprehend, and with counts for assaulting a gamekeeper in the execu- tion of his duty, and for a common assault. Rex V. Fimicane, 5 C, & P. 551. Amendment at Trial.] — A variance between the allegation of occupation of land in an in- dictment for night poaching, and the proof of the occupation, will, if not such as to have mis- led, be amended at the trial. Reg. v. Sutton, 13 Cox, C. C. 648. Abandonment of Counts — Effect of.] — ^A 'first count charged the prisoners under 9 Geo. 4, c. 69, s. 2, with being found on land at night armed with a gun for the purpose of taking game, by A. and B., who had lawful authorityto apprehend them, and that they, being about to apprehend them, the prisoners with a weapon assaulted ahd wounded them f a second count charged an un- lawful wounding ; and the third and fourth counts charged a common assault. The counsel for the prosecution abandoned the last three counts, and elected to stand on the first count. The jury returned a verdict of guilty of ni^ht poaching and a common assault. tJpon a ques- tion raised, whether the prisoners could be con- victed of a common assault upon the first count : — Held, that the prosecuting counsel having with- Digitized by Microsoft® 583 CEIMINAL 'LAW— Poaching, doc. 584 drawn the counts for common assault from the ing away the game and nf =.h=m. .,. a t SJ'fkTiL T'^f52"°* *°''^-*-*--^- if *he ientTth:S\lftntrVad"b; Meg. T. Z?ay, 22 L. T. 452. keepers while in the pursuit of game, ll ^ Previous ConviotionB.]-On an indictment for night poaching, having been twice summarily convicted, the convictions produced contained no allegation that the defendant had entered at night :— Held, insufficient evidence of a pre- vious conviction, neg. y. Memj, 2 Cox, G. 0. t. Oonvlctlons and Commitments. Conviction — Form.]— A conviction under 9 Geo. 4,c. 69, s. 1, must allege that the defendants by night, were in certain land for the purpose of taking game in such land ; it not being suflSoient to follow the words of the statute. Fletcher v. Calthorp, 1 New Sess. Gas. 529 ; 8 Q. B. 880 • 14 L. J., Q. B. 49 ; 9 Jur. 205. Previous Conviotions— Evidence.] — See supra. Form and Contents.] — A conviction under 9 Geo. 4, c. 69, s. 1, stating, that on the 20th of December, 1854, C. was convicted, for that he, within the space of six calendar months last past, by night, after the expiration of the first hour after sunset, and before the beginning of the first hour before sunrise, did, by night, then and there unlawfully enter a close with a gun, for the purpose of then and there taking and destroying game, and that he was then sentenced to be imprisoned for the period of three calendar months ; that afterwards, to wit, on the 27th of -November, A.D. 1858, he was duly convicted, for that he, within six calendar months next before, &c., to wit, on the 24th of November, 1858, in the night of the same day, by night, unlawfully did enter and be in and upon certain inclosed land, with certain instru- ments, for the purpose of killing, taking and destroying game thereon, this being his second offence, and was then adjudged to be imprisoned for six calendar months, is good, as it sufficiently shews upon the face of it, that two previous convictions of offences within the terms of the act had taken place. Cureton v. Reg. {in error), 1 B. & S. 208 ; 8 Cox, C. C. 481 ; 30 L. J., M. C. 149 ; 9 W. B. 665. Commitment.] — A warrant of commitment, reciting an order of sessions confirming a con- viction under 9 Geo. 4, c. 69, s. 1, ordering the prisoners, at the expiration of their term of im- prisonment, to find sureties not to offend again, instead of not so to offend again, is iU. Bey- nolds, Mx parte, 13 L. J., M. G. 65 ; 8 Jur. 192. The court will presume that the commitment contains a true recital of the conviction ; there- fore, where the certiorari is taken away, and the prosecutor seeks, under s. 7, to avail him- self of the conviction to cure a defect in the commitment, the prisoner is not boimd, nor is it his duty to bring the conviction before the court. lb. g. Informations. What sufacient to give Jurisdiction.]— An in- fomatiou under 9 Geo. 4, c. 69, s. 1, for earing land for the purpose of taking game, is sufficient to give the justices before whom it is laid ]uri3- e. Zividenoe. Authority to Apprehend.]- On an indictment for wounding with intent to prevent lawful ap- prehension, it was proved that the prisoners were found poaching in the night, armed, in a preserve which had belonged to the Earl of L., and then was in possession of the earl's trustees. The person trying to apprehend was a wa,tcher employed by the head keeper, the latter having been appointed by the earl some twenty years before, and paid by his agent down to the time of the trial, but the head keeper had never had any direct communication with the trustees : — Held, sufficient proof of an authority to appre- hend. Meg. v. Fieldmg, 2 C. & K. 621. Without Permission of Owner.] — Where A. was indicted for night poaching on the land of the prosecutor, which laud was in the occupation of a tenant : — Held, that it was not necessary, in order to support the indictment, to shew by evidence that A. was there without the per- mission of the tenant, or of the prosecutor, if the right to take game upon the land had been reserved to him. Reg. v. Wood, Dears. & B. C. C. 1 ; 25 L. J., M. C. % ; 2 Jur., N. S. 478. Being in Close with intention of taking Game.] — Two were charged with being by night, and armed, in a, close for the purpose therein of destroying game. It was proved that they passed through the close without doing any- thing in it, and that after being lost sight of for two hours they were found three miles off with game in their possession : — Held, that there was evidence that they were in that particular close for the purpose of taking game, and that if persons went out with a general intention of taking game, that was sufficient evidence of an intent to take game in every field through which they passed, in which game might be expected to be found. Reg. v. Higgs, 10 Cox, C. C. 527. Intent to take Game inferred.]^ An indict- ment under 9 Geo. 4, c. 69, charged, that the prisoners "were in the Great Ground on the 11th February, armed, with intent, then and there, to take game." The evidence shewed that the prisoners were all seen, for the first time, in the Great Ground, employed in taking down two nets ; after this was done they picked up some dead hares, which were lying on the ground near the nets, and hanging them on long sticks over their shoulders, walked homewards with them. It also appeared that they had dogs with them in the Great Ground : — Held, that the questions for the jury were, first, whether they were in the Great Ground with the intent to take game at that time, and that such intent might be inferred from the presence of the nets and dogs, though they might have taken the hares elsewhere. Reg. v. Twrner, 3 Cox, C. C. 304. Being Armed..]— Held, also, that the allegation that they were armed could not be sustained, unless the jury should be of opinion that they took the sticks for the double purpose of carry- Digitized by Microsoft® 585 CEIMINAL hAW— Poaching, dc. diction to hear the charge, although it does not allege that the entry was for the purpose of taking game there. S^g. v. Western, l.L. E., C. C. 122 ; 37 L. J., M. C. 81 ; 18 L. T. 299 ; 16 W. B. 730 ; 11 Cox, C. C. 93, 2. In Day-time. a. The Offence. Statute.]— By 1 & 2 Will, i, c. 32, ss. 30, 31, it is a^penal offence to trespass in the day-time upon lands in search of game, punishable hy a fine on conviction before a justice of peace ; and all such trespassers may be required to quit tJie land, and to tell their uamss and places of abode, and in case of refusal may be arrested. These provisions, however, do not apply to persons hii/nting or coursing, or claiming or exercising a right of free warren, nor to gamelieepers ; nor do they preclude or prevent any person from proceeding by way of action to recover damages for trespasses, except tltat when proceedings have been talien under the act, no action is maintain- able for the same trespass. What eame.]— The 1 & 2 Will, i, e. 32, s. 30, tvhich imposes a penalty for trespass in search or pursuit of game, means in search or pursuit of live game. Kenyan v. Hart, 6 B. & S. 249 ; 34 L. J., M. C. 87 ; 11 Jur., N. S. 602 ; 11 L. T. 733 ; 13 W. E. 406. Reservation of Game to Landlord.] — An agree- ment under which a tenant held contained a stipulation that he would not destroy any game, and would endeavour to preserve all game bred and heing on the farm. He was convicted under 1 & 2 Will. 4, c. 32, s. 12, that he being the occupier of land, the right of killing the game on such land being reserved to his landlord, did unlawfully kill upon such land game : — Held, that the stipulation in the agreement could not be construed as a reservation of game to the landlord, and that the conviction ought to be quashed. Coleman v. Batliurst, 6 L. E., Q. B. 366 ; 40 L. J., M. C. 131 ; 24 L. T. 426 ; 19 W. E. 848. What amounts to a Trespass.] — To constitute the. offence of trespassing upon land in search or pursuit of game, under 1 & 2 Will. 4, c. 32, s. 30, there must be a bodily entering or being of the person upon the land upon which the trespass is alleged to have taken place, and there may be a trespass within the act, though, at the time, the person is upon a highway. Reg. v. Pratt, Dears. C. C. 502 ; 3 C. L. E. 686 ; 4 El. & Bl. 860 ; 24 L. J., M. C. 113 ; 1 Jur., N. S. 681. Firing at game from a highway is a trespass in pursuit of game. Mayhew v. Wardley, 14 C. B., N. S. 550 ; 8 L. T. 504. A. being upon his own land (or land upon which he was privileged to shoot), fired at and killed a pheasant in the land of B., and went upon B.'s land (without leave), and picked it up : — Held, a trespass in search or pursuit of game, the whole being one continuous act. . Osbond v. Meadows, 12 C. B., N. S. 10 ; 31 L. J., M. C. 238 ; 8 Jur., K. S. 1079 ; 6 L. T. 290 ; 10 W. K. 537. A., standing on his own land, a pheasant rose up on it, and flew to the close of B. A. fired a gun, and struck it while over that close, where- upon the bird'^ell dead, and A. entered and picked it up : — Held, that this was not' a trespass in 586 search or pursuit of game within 1 & 2 Will. 4, c. 32, s. 30, unless the facts were such as to shew that the firing at the bjrd, the entry on the Close of B., and the picking up of the bird, all formed part of one continuous transaction. Kenyan v. Hart, 6 B. & S. 249 ; 34 L. J., M. C. 87 ; 11 Jur., N. S. 602 ; 11 L. T. 733 ; 13 W. E. 406. By Servants of Tenant.] — ^A tenant of land, the right of sporting over which was reserved to the landlord, employed persons, as his servants, to kill rabbits on the land : — Held, that the servants were not liable, for having acted in that employment, to be convicted under 1 & 2 Will. 4, c. 32, 6. 30, for a trespass in pursuit of conies. . Spioer v. Barnard, 1 El. & El. 874 : 28 L. J., M. C. 176 ; 5 Jur., N. S. 961 ; 7 W. E. 467 ; S. P., Padwich v. King, 7 0. B., N. S. 88 ; 29 L. J., C. P. 42 ; 6 Jur., N. S. 274. What Parties Liable to Conviction.] — In sup- port of an information against A. for aiding and abetting B. to commit the offence of trespass in pursuit of game, there was evidence that A. drove B. in a conveyance along a turnpike road for a lawful purpose ; that the conveyance was after- wards stopped, when B. got out and entered a field and shot a hare, which he gave to A. on returning to the conveyance, and then A. drove along the road : — Held, that there was evidence on which the justices might find A. guilty of the offence so charged. Stacey v. IVhitehurst, 18 C. B., N. S. 344 ; 34 L. J., M. C. 94 : 11 L. T. 710 ; 13 W. E. 384. Where two persons are jointly engaged in the unlavrful act, they may be severally convicted thereof. Mayhew y. Wardley, 14 C. B., N. S. 550 ; 8 L. T. 504. Leave and Licence.] — The leave and licence of the occupier, to be an answer to such complaint, must precede the act of trespass. Morden v. Porter, 7 C. B., N. S. 641 ; 29 L. J., M. C. 213 ; 1 L. T. 403 ; 6 W. E. 262. A landlord, who on letting a farm verbally has reserved the game to himself, has thereby a suf- ficient authority to give leave to a person to kill game on such farm, to prevent any such person from being n. trespasser thereon in pursuit of game within s. 30 of 1 & 2 Will. 4, c. 32. JTones V. Williams, 46 L. J., M. C. 270 ; 36 L. T. 559, On Sunday.] — ^A. was convicted for that he, on the 15th of August (being Sunday), did use snares for the purpose of killing game. He set the snares on the 13th and 14th of August, and on the 15th the snares were seen set ready to catch game, and two dead grouse were found caught -in snares: — Held, that a snare was an engine or an instrument within 1 & 2 Will. 4, c. 32, s. 3, and that putting down a snare on a day before Sunday, for the purpose of killing game, and keeping it set on Sunday, was using an engine or an instrument on Sunday. Allen V. Tlwmpsan, 5 L. E., Q. B. 336 ; 39 L. J., M. C. 102 ; 22 L. T. 472 ; 18 W. E. 1196. b. luformationi and Complaint. By whom laid.] — An information for tres- passing in pursuit or search of game may, under 1 & 2 Will. 4, c. 32, ri. 30, be laid by a common informer, or a person who has no interest in the land trespassed upon. Middleton v, Oale, 8 A. Digitized by Microsoft® 587 CRIMINAL LAW 1 W., W. & H. 352 6 E. 155 ; 3 N. & P. 372 ; Jur. 819. A complaint of trespass in pursuit of game under 1 & 2 Will, i, c. 32, s. 30, need not be made by a person having an interest in the land Murden v. Porter, 7 C. B., N. S. 641 : 29 L J M. C. 213 ; 1 L. T. 403 ; 6 W. R. 262 ' Under 6 & 7 Will. 4, o. 65, s. 9, an information under 1 & 2 Will. 4, c. 32, if laid by a pei-sonuot deposing, on oath, to the matter of the charge must distinctly shew that the charge was deposed to by some other credible witness on oath Beg V. Sootton, 5 Q. B. 493 ; D. & M. 501 ; 1 New Sess. Gas. 27 ; 13 L. J., Q. B. 58. Trial of Prisoners Separately — Discretion.] — At petty sessions an information was laid against two persons charging that they did use a gun and kill two pheasants contrary to 1 & 2 Will. 4, c. 32, s. 3 ; each claimed to be tried separately in order to call the other as a witness ; the justices refused, and heard the charg6 against both together, and convicted them, and a convic- tion was drawn up separately against each of them, imposing a penalty of 31. :— Held, that it was in the discretion of the justices whether they would hear the charge separately or not ; that, as the penalty was imposed upon every person acting in contravention of the statute, each was sepa- rately liable to the whole penalty, and that separate convictions were right. JRcg. v. Idttle- child, Meg. v. Beslop, 6 L. R., Q. B. 293 ; 40 L. J., M. C. 137 ; 24 L. T. 233 ; 19 W. K. 748. c. Apprehension of Offenders. When justified.] — To justify the apprehension of a person under 1 & 2 Will. 4, c. 32, s. 31, he must have been required to quit the land, and to tell his name ; and the wilfully continuing or returning upon the land, to justify an apprehen- sion, must be upon the same land, and for the purpose of pursuing game there. Sex v. Long, 7 C. & P. 314. To justify the apprehension of an offender under 1 & 2 Will. 4, u. 32, s. 31, it is only necessary that he should have been made to understand, by the person authorized under that section, that he is required to tell his christian name, surname, and place of abode, and that he should have refused to comply with such requisition. It is not neces- sary that he should have been required both to quit the land and also to tell his name. Reg. v. Prestney, 3 Cox, C. C. 505. A warrant for neglecting to appear to a sum- mons for trespass in search of coneys, under 1 & 2 Will. 4, c. 32, s. 30, was issued against C, directed to all the peace officers in the county. A peace officer in the county met C. and said he apprehended him under this warrant, but the warrant was not in his possession at the time. 0. resisted, and, having severely injured the officer, escaped, but afterwards surrendered him- self. The justices fined him Ws. for the tres- pass, and sentenced him to six months' hard labour for assaulting the officer in the execution of his office : — Held, that the arrest under the circumstances would not have been in the execution of the constable's office, and that the conviction for assault must be quashed. Codd V. Cabe, 1 Ex. D. 352 ; 45 L. J., M. C. 101 ; 34 L. T. 453 ; 13 Cox, C. C. 202. Action against two for assaulting the plaintiff, and tearing his clothes. A plea stated, that -Poaching, dc. 588 Hff w=, / <=°'??^'tt'°g those trespasses the plain- S J^LvT"^ ?y ^^^ defendants^n the lands of Li^/fV .n ^T"' ^'''^"^t his licence and agamst his will, and that the plaintiff had in his recentirkm^''''w^''='' ^^^^^^-^ *° "^^'^^ snrv^^/.f ^l Whereupon one defendant, as seivant of and by command of S., demanded the haie, which the plaintiff refused to deliver ; that thesaid defendant demanded the hare froi the plaintiff, and because he refused to deliver it, and kept it in his possession, both defendants, as such servants, and by such command, in order to take the same for the use of S., seized the plain- titt, and took it from him according to 1 & 2 Will. 4 c. 32 s. 36. Another plea stated, that ]ust before the trespasses, the plaintiff had in his possession a dead hare belonging to S. with- out his leave and licence, wherefore the de- tendants did, as his servants, and by his com- mand, demand the same from the plaintiff which he refused to deliver, and which he detained, whereupon the defendants, as such servants, seized the plaintiff (concluding as in the former plea) :— Held, that the first plea was bad, for not sufficiently shewing when "the second demand was made, or that it was made on the land of S. ; and that the second plea was also bad, for not stating that the defendants gently laid their hands on the plaintiff in order to take the game, and that because he resisted, they necessarily committed the trespasses com- plained of, doing as little damage, and using as little violence to the plaintiff as they could on that occasion. Wisdom v. Sodson, 3 Tyr. 811. Belief that Person had Authority.]— In an action for assault and taking away the plaintiff's game certificate and gun, it appeared, that after the plaintiff had given his name and place of abode, the defendant pushed him out of the field into a public road, and then took away his gun. The defendant alleged that he had acted under 1 & 2 Will. 4, c. 32, s. 31, and was entitled to notice of action : — Held, that the judge was right in leaving it to the jury whether defendant acted on the belief that he had authority under 1 & 2 Will. 4, c. 32, and whether he had reasonable ground for that belief. Cox V. Beid, 13 Q. B. 558 ; 18 L. J., Q. B. 216 ; 13 Jur. 563. d. Ousting: Jurisdiction of Justices. Adjournment asked to Produce Evidence of Authority.] — On the hearing of an information for trespassing in pursuit of game, it was stated by the parties that they had authority from the owner of the land ; but being not prepared to prove that fact, they asked for an adjournment : — Semble, that this was a claim of right on a matter which would be a defence to an action ; and therefore, under the proviso in s. 30 of 1 & 2 Will. 4, c. 32, the justices ought not to have proceeded to convict. Beg. v. Cridland, 7 El. & Bl. 853 ; 27 L. J., M. C. 28 ; 3 Jur., N. S. 1213. B. was charged with trespass in pursuit of game, under 1 & 2 Will. 4, c. 32, s. 30, and was proved to have shot game on glebe land over which the rector of the parish had always exer- cised the privilege of sporting. The defence of B. was that he was game watcher, employed by three gentlemen who were proved to rent shoot- ing from the lord of the manor, and that the Digitized by Microsoft® 589 CRIMINAL 1. AW— Poaching, Jtc. 590 lord claimed the shooting over part of the glebe under an inolosure act. He proved that his employers ordered him to go upon this land, but he produced no evidence, although an adjourn- ment was offered for that purpose, that the land upon which the alleged trespass was committed was included in the lands over which his em- ployers' shooting extended, nor in the disputed part of the glebe. The magistrate decided that he had no bona fide claim of right to shoot on this particular land, and convicted him of the trespass : — Held, that, under the circumstances, the magistrate was justified in convicting. JBirnie v. Marshall, 35 L.'T. 373. Bona fide Question of Title.] — ^A question of title bona fide raised in the course of proceed- ings, on an information, before justices, for tres- passing in pursuit of game, operates to oust the jurisdiction of the justices, and their proper course is to dismiss the charge. Legg v. Pardee, 9 C. B., N. S.289 ; 30 L. J., C. P. 108 ; 7 Jar., N. S. 499 ; 3 L. T. 371 ; 9 W. R. 234. The bona fides of the claim is for the justices to determine. IT). M. laid an information against A. for tres- passing in pursuit of game, under 1 & 2 Will. 4, c. 32 (Game Act), s. 30. At the hearing he gave evidence that the lords of the manor had, in 1815, granted the right of shooting, down to the present time, and that he was then renting the shooting of them. On A.'s part it was alleged that he had a lease from the lords of the manor of the lands said to be trespassed upon, dated 1859, in which there was no reservation of a right to thi3 game, and that the alleged trespass was committed in the assertion of his right to the game. The justices having convicted A. : — Held, that under the circumstances, the claim of right having been bona fide made, the jurisdiction of the justices was ousted. Adams v. Masters, 24 L. T. 502. The tenant of a farm under a lease which reserved the game to the lessor, but did not ex- pressly say that it did so exclusively, shot three hares in the presence of the keeper to assert his right. He set up this claim of right on the hearing of an information against him before the justices, and alleged that it ousted their juris- diction. They found that the claim was not bonS, fide, because he had a copy of the lease, and con- victed him : — Held, that this finding as to the bona fides was not conclusive, because there was no evidence that his claim was made mala fide; and that as he asserted his claim of right the magistrates had no jurisdiction to hear the in- formation. Zovesy v. Stallard, 30 L. T. 792. A trespasser in search of game set up as a de- fence, under 1 & 2 Will. 4, c. 32, s. 30, the leave and licence of the occupier under a parol lease. The occupier denied that the game was reserved; evidence was given' to show that it was : — Held, that the defence was not bonS, fide, and, there- fore, the jurisdiction of the justices was not ousted. Meg. v. CriicJdow, 26 W. E. 681. Semble, that if there is any evidence to shew that the game is reserved, it becomes a question of fact tobe decided by the justices. Zb. Where a party made a claim of right to shoot over lands as lord of a manor, and gave in evidence in support of such right, certain docu- ments of title and an inclosure act, but the justices convicted him on the ground that he did not bona fide believe, when he committed the trespass, that he had any such right as that' claimed by him ; the court quashed the convic- tion on the ground that there was evidence • of the bona fides of the claim set up. Reg. v. Derii/- shire Justices, 11 W. B. 780. Title alleged must be of Party himself, not of Third Person.] — Where proceedings for trespass- ing on land in pursuit of game are taken before justices against a person who raises a question of title, he must allege such title to be in himself, and not in a third person ; and it is the province of the justices to determine whether or not such claim has a reasonable foundation. Comwell v. Sanders, 3 B. & S. 206 ; 32 L. J., M. 0. 6 ; 9 Jur., N. S. 540.; 7 L. T. 356 ; 11 W. R. 87. Mere Assertion.] — ^A person charged with trespassing in pursuit of game in the day-time on land in the occupation of a tenant to A., set up a claim of right to shoot over the land, on the ground that he and every one who chose had always shot there till some recent acts of inter- ruption, and declared his readiness to try the right with A. : — Held, that the mere assertion of such a general right in himself and every one else, though he really believed it, without shew- ing any such claim of right as would be a defence to an action of trespass, did not oust the jurisdiction of the magistrates to convict. Leatt V. Vine, BO L. J., M. C. 207 ; 8 L. T. 581. Mere Belief of Title.] — It is not sufiicient to oust the jurisdiction of the justices in regard to a charge of trespass in pursuit of game under 1 & 2 Will. 4, c. 32, that there is an honest claim of right, if such claim is absurd and impossible in point of law. The question is whether a reason- able claim of right is involved, and not one of mens rea, inasmuch as the statute is not a mere criminal statute, but is intended for the protec- tion of the peculiar rights of persons entitled to shoot game. Watliins v. Major, 10 L. R., C. P. 662 ; 44 L. J., M. C. 164 ; 33 L. T. 352 ; 24 W. E. 164. An information was preferred against the ap- pellant for killing a rabbit, contrary to 1 & 2 Will, 4, c. 32, s. 30. At the hearing it was proved that E. claimed to be lord of the manor, and a witness stated that the manor had belonged to two persons, who were predecessors in title to E. A deputation was also produced, which appeared to have been duly inroUed by the clerk of the peace of the county, by which T; was appointed gamekeeper for and within the manor. The wit- ness also stated that he had known the common for forty years, and had always believed it ito be part of the manor, and that E. had allowed him to shoot over the common. The appellant went by direction of his father on to the common and there shot a rabbit. The father had previously acquired a lease of some land near the common, and had built a house on it. He claimed in re- spect of this land, as ' one of the commoners, a right of killing rabbits on the common, but no evidence was adduced that any of the com- moners had ever claimed or exercised a right of killing rabbits on the common. The claim to kill rabbits was made by the appellant and his father bona fide, and the justices having con- victed the appellant : — Held, first, that there was evidence that the manor existed, that the com- mon was within it, and that B. was the lord of it. Ih. Digitized by Microsoft® 591 CEIMINAL "LKW— Poaching, dc Held, secondly, that as the appellant had given no sufficient evidence of a right justifying Mm in killing the rabbit, he was properly con- victed, although he bona fide believed himself to be entitled to shoot the rabbit. lb. The mere belief of a person, however bonS, fide, in the existence of the right asserted, is insuf- ficient, unless accompanied by some colour for theclauA, to oust the jurisdiction of the justices. Coriiwcll V. Sanders, 3 B. & S. 206 ; 32 L. J., M. C. C ; 9 Jur., N. S. 5i0 ; 7 L. T. 336 ; H W. R. 87. Beasonable Claim of Eight.] — A person being summoned before justices for trespassing in pur- suit of game upon waste and common land in the occupation of the lord of the manor, denied such •occupation, alleging the j)roprietorship of the land to be in third parties. There was some evidence in support of the claim of the lord, but the evidence preponderated considerably in favour of the title as set up by the party tres- passing. The justices having convicted him : — Held, that the court would not impugn their decision. lb. An information was laid against K. for a tres- pass in pui-suit of game. At the heariug, he gave in evidence a lease, dated ITSJi, for ninety-nine years, of the land upon which the trespass was alleged to have been committed,to a party through whom he claimed, the lessor being the party through whom the informant claimed the right to the game. The lease contained the following Tcservation to the lessor : " and also liberty to hawk, hunt, set and fowl in and upon the demised premises during the term hereinafter granted." K. having set up his title through the lessee to take game upon the land, and so dis- puted the right of the justices to adjudicate, they held that the claim of right was not suffi- cient to oust their jurisdiction, and convicted him :— Held, that the objection being made bona fide, it was a reasonable one, and that the juris- diction of the justices was ousted. Reg. v. JCayley, 10 L. T. 339. e. Evidence. Competency of Witnesses.]— An information before justices under 1 & 2 Will. 4. c. 32, s. 23, for using an engine for the purpose of takmg game without the authority of a certificate, is a criminal proceeding in which the par^ is charged with the commission of an ottence punishable on summaiy conviction, withm lite 15 Vict. c. 99, s. 3 ; and therefore the party charged is not competent or compellable to give evidence for or against himself. CatteLL v. ire- son, 1 El. & Bl. 91 ; 27 L. J., M. C. 167 ; 4 Jur., N. S. 560. Production of Deed giving Bight of Shooting.] -A landowner, by deed, granted the right ot shooting to G. over land, of which B. afterwards became occupier. Upon an infoi-mation against B. for entering and being in the day-time upon land in search of and in pursuit of game (the land being that in his own occupation) trOe- posed that he had the exclusive right of shooting Sver the same, and that he had given no autho- rity to B. to shoot, but the deed was not put m evidence. The justices having convicted :--Held, that the conviction, unsupported by the pro- Digitized by Microsoft® 592 duction of the deed, was wrong. Sarlrr v. Davh, 34 L. J., M. C. 140 ; 11 Jur., N. S. 651. Parol Evidence of what Party said before Magistrate.]— Parol evidence of what a party says before a magistrate, on the hearing of a case of trespass, under 1 & 2 Will. 4, c. 32, s. 30, is admissible, although, in fact, what he said wa,s taken down ; as this is not a case in which it is the magistrate's duty to take down what is said before him. Buhiiisun v. Vaiinhton, 8 C. & P. 252. Right exercised for Seven Years.]— Evidence that a party has exercised the right of killing game for seven years upon land is primS, facie evidence of the right under 1 & 2 Will. 4, c. 32, s. 36, which makes it lawful for any person having the right of killing the game upon any land, to seize game recently killed, found in the possession of any person upon such land in pursuit of game. Men. v. Wall, 2 Cox, C. C. 288. Trespass with Dogs where Hares seen.] — Ta sustain a charge of trespass in pursuit of game, brought under the 27 & 28 Vict. u. 67, the only evidence given on behalf of the complainants to prove the commission of the offence was, that the defendant, with two greyhounds, was trespassing on lands of the complainants where hares had been frequently seen, and that he went away on being called on to stop by a caretaker of the complainants. The caretaker deposed that he believed the defendant was beating for hares : — Held, that there was no evidence that the de- fendant had committed an offence under the statute. Ein/jston (^Countess') v. O'Neill, 6 L. R., Ir. 101 ; 14 Cox, C. C. 466. f. Convictions. Form and Validity.] — In a conviction for a trespass in the daytime, under 1 & 2 Will. 4, c. 32, s. 30, the words " enter and be " constitute only one offence. Bex v. IL-llor, 2 D. P. 0. 173. The place of committing the trespass may be described in the conviction as certain land, without giving it a name, or setting it out with abuttals. lb. As, by s. 45, the conviction itseU cannot be re- moved out of the inferior court, a verified copy may be used to ascertain whether the conviction is valid. lb. ■, , o „ After a conviction by two justices under \H.i. Will. 4, c. 32, s. 30, and before any formal con- viction had been drawn up, one of such justices changed his mind, and together with a third justice who had not heard the case, but without the concurrence of the other justice who had convicted, reversed such conviction :— Held, that such reversal was irregular, but that as no con- viction had been drawn up there was no good conviction existing, and the whole proceednig was a miscarriage. Jones v. Williaiii.i, it, L. J., M. 0. 270 ; 36 L. T. 559, Imposition and Payment of Penalties.]— By 1 & 2 Will. 4, c. 32, s. 37, every penalty for any offence against that act is to be paid to some one of the olerseers of the poor, or to some other officer (as the convicting justice or justices may direct) of the parish in which the offence shall 593 CEIMINAL LAW— Poaching, d-c. 594 have been committed ; to be by such overseer or officer paid over to the use of the general county- rate ; but by 5 & 6 "Will. 4, c. 20, s.21, reciting the former act, it is enacted, that one moiety of all such penalties shall go and be paid to the person vfho shall inform and prosecute for the same, and the other moiety only shall go and be paid to such overseer or officer, and be by him applied in manner before directed : — Held, that a conviction for an offence against the former act, which directed the whole penalty to be paid " to W. J., one of the overseers of the poor of the parish, &c., to be by him applied according to the directions of the statute in such case made and provided," is bad. Griffith v. Harries, 2 M. & W. 335 ; M. & H. 8 ; 1 Jur. 57. A conviction for trespassing in search of game in the daytime, under 1 & 2 Will. 4, c. 32, s. 30, included four persons, and adjudicated that " each of them, the said J. C, J. B., W. "W., and J. S., ao making default, shall be imprisoned for one month, unless the said several sums, and the costs and charges of conveying each of them, the said J. C, J. B., W. W., and J. S., so making default, to gaol, shall be sooner paid :" — Held, that it made each to be imprisoned until the costs of conveying all to gaol had been paid, and therefore was bad, inasmuch as the 11 & 12 Vict. c. 43, s. 23, only made each liable for the costs of conveying him to gaol. Berj.y. Cridland, 7 El. & Bl. 853 ; 3 Jur., N. S. 1213. A conviction for killing a pheasant contrary to s. 3 of the 1 & 2 Will. 4, c. 32, following the form given in schedule (I. 2) to 11 & 12 Vict. c. 43, adjudged the offender to forfeit and pay a penalty, " to be paid and applied according to law." By 1 & 2 Will. 4, c. 82, s. 37, and by 5 & 6 Will. 4, c. 20, s. 21, the penalty is directed to be paid, one half to the inf omier, and one half to some one of the overseers of the poor, or to some other officer (as the convicting justice or justices may direct) of the parish in which the offence shall have been committed : — Held, that the con- viction was sufficient, by virtue of 11 & 12 Vict. c. 43, ss. 17, 32, being in the form given by the schedule to that act referred to in s. 17, though it did not in terms distribute the penalty, nor name the informer or the overseer to whom the penalty was to be paid. Ueg. v. Hyde, 7 El. & Bl. 859, n ; 21 L. J., M. C. 94 ; 16 Jur. 337. A conviction under 1 & 2 Will. 4, o. 32, s. 3, adjudged the defendant to pay a fine of 5.s., " to be paid and applied according to law," and in default of payment to be imprisoned for two months : — Held, that the justices had no juris- diction to order the defendant to be imprisoned, as the imprisonment was conditional on the non- payment of the penalty, and they had not, by the conviction, directed the manner in which the penalty should be paid, as required by 5 & 6 Will 4, c. 20, s. 21. Hi/de, JEx parte, 15 Jur. 803. Quashing — No Notice of Objection.] — A party summarily convicted appealed under 1 & 2 Will. 4, c. 32, giving notice of several objections on the merits. By the conviction, when returned to the sessions, it appeared that the party was adjudged to pay the penalty forthwith, and that nothing was said of imprisonment in case of de- fault. The sessions quashed the conviction on this ground, stating in their order that they quashed it for want of form. The objection was pot taken in the notice of appeal, nor did it ap- pear that the appellant, when he gave the notice, had means of knowing how the conviction would be framed : — Held, that, assuming the conviction to be defective in substance, the sessions had no power to quash it on this objection, no notice of it having been given. TXex v. Boulthee, 4 A. & E. 498 ; 6 N. & M. 26 ; 1 H. & W. 713. Barring Actions.] — A. ordered and authorized B. to sport over the lands of C, which he did. D., by the assent of C, laid an information before a magistrate against B. for the trespass under 1 & 2 Will. 4, c. 32, s. 30. The magistrate dismissed the complaint : — Held, in an action by 0. against A. and B. for this trespass, that the pro- ceedings before the magistrate were a bar to the action both as to A. and B., under s. 46 ; and that to be a bar, it was not necessary that the magistrate should convict of the trespass, it being sufficient if he adjudicated between the parties. RoUnson v. VawjMon, 8 C. & P. 242. 8. UisTiAWFUL Possession of Game. Evidence.] — A common carrier between B. and E. was met by a police constable coming along the turnpike road to R. with his horeeand cart. The constable, suspecting that he had been un- lawfully on land in pursuit of game, asked him if he had any game in his cart, to which he replied that he had only a few rabbits. The constable then searched the cart, and found in a basket, beneath the rabbits, a pheasant, nine partridges, (three of which had been shot, and six netted), and two hares (one of which had been shot, and the other trapped). The game was wet, and had been recently killed ; and the boots of the carrier (who fainted when the game was discovered) were dirty, although the road was dry. The justices who convicted him found that " no evidence was given on the one hand to shew that the game was unlavrfuUy obtained, or on the other hand to shew that it was lawfully ob- tained : " — Held, that the foregoing circumstances did not constitute sufficient evidence on which he could be convicted of having obtained game by unlawfully going on land in search or pui-suit of game within 25 & 26 Vict. c. 114, s. 2. Jones V. Dicier, 22 L. T. 95. Two men were seen together by a policeman on the 16th of December on a highway, about half -past nine P.M. One had a net under his arm for catching hares. Nothing else was found on either of them ; but they had a lurcher with thenr. The policeman had heard a dog yelping as if in chase of a hare or rabbit a little time before these men came along the road. The night was damp; and the net was wettish. They were both con- victed under 25 & 26 Vict. c. 114, s. 2 :— Held, that there was evidence to support the convic- tion : for that it was not necessary that they should have caught any game : it was sufficient if they had used the net for the purpose, though unsuccessfully, of which there was evidence. JenUn v. King, or Reg. v. Cnrnwall Justices, 7 L. E., Q. B. 478 ; 41 L. J., M. C. 145 ; 26 L. T. 428 ; 20 W. R. 669. Jurisdiction.] — In order to give jurisdiction to magistrates to convict of an offence under 25 & 26 Vict. c. 114, s. 2, it is necessary that the game or instruments for killing or taking game should be seized and detained on the highway. Tvrner Digitized by Microsoft® 595 CRIMINAL liA.'W—Pnze-Fights. 696 T. Morgan, 10 L. E., 0. P. 587 ; 44 L. J., M. C. 161 ; 33 L. T. 172 ; 23 W. E. 659. A man, whilst going in a cart along a highway, was required to stop by a constable. He drove off without obeying the order to stop, and shortly afterwards delivered to G. several rabbits, of which the constable subsequently took posses- sion : — Held, that, as the rabbits were not seized by the constable whilst they were in his posses- sion upon the highway, he could not be convicted under25&26 Vict. c. 114, s. 2. lb. i. Haees and Eabbits. statutes.]— By 24 & 25 Vict. c. 96, s. 17, w!io- soever shall nnlawfuU ij ami wUfully, buticci'ii the expiyation nfthcfirst hour after sunaet and the beginning of the hint hour before sunrise, talte or hill any hare or rabbit in any warren or ground lawfully used, for the breeding or heeping of hares or rabbits, whether the same be inclosed or not, shall be guilty of a misdemeanor ; And ivhosoecer shall unlawfully and wilfully, between the beginning of the last hour before sunrise and the expiration ofthejirst hour after sunset, talte or hill any hare or rabbit in any such warren or ground!, or shall at any time set or use therein any snare or engine for the taking of hares or rabbits, shall, on conviction thereof, before a justice of the peace, forfeit and pay such s^im of money, not eveeeding 51., as to the juctiee shall seem meet ; prodded that nothing in this section contained shall affect any person taking or killing in tlie day-time any rabbits on any sea bank or rii-er bank in the county of Lincoln, so far as th-e tide shall extend, or within one furlong of such bank. (^With the exception of the substitution of defined hours for "night- tim.e" and ^'day-time," similar to former piro- vision, 7 & 8 Geo. 4, c. 29, s. 30.) By 43 & 44 Vict. c. 47 (The Ground Game Act, l^iW), provision is made for the better jfoteetion of occupiers of land against injury to their crops from ground game. Taking — ^What is.] — Taking a rabbit in a wire was sufScient to constitute an ofEence within 5 Geo. 3, c. 14, s. 6, though the rabbit was not killed, and though the party never took it away. Rex V. Glover, K. & E. C. C. 269. In what Place.] — Destroying rabbits ia the night-time, in a rick-yard in which they were kept, was not within 7 & 8 Geo. 4, c. 29, s. 30. Hex V. Garratt, 6 C. & P. 369. The Subject of Larceny. ~\—See ante, Lakceny. XXXI. POISONING. 1. Placing Poison in Plantations. 27 & 28 Vict. c. 115, amends the 26 & 27 Vict c. 113, and prohibits the placing of poisimed flesh and poisonms matters in iilantations, fields and open places. 2. MUEDEK BY. — Sec ante, Muedee, &c. 3. Administering Poison with Intent to MUEDEB.— See ante, Muedee, &c. XXXII. PEIZE-FIGHTS. Prize-Fight Expected— Duty of Magistrates.] —Where a prize-iight is expected, the magis- trates ought to cause the intended combatants to be brought before them, and compel them to enter into securities to keep the peace till the assizes or sessions ; and if they refuse to enter into such securities, to commit them. Rex v. Billingham, 2 C. & P. 234. Whether Presence at Prize-Fight constitutes an Assault.] — Eersons who are present at a prize-fight and who have gone thither with the purpose of seeing the pereona strike each other, are aU principals in the breach of the peace, and indictable for an assault, as well as the actual combatants, and it is not at all material which of the combatants struck the first blow. Rex v. Perkins, 4 C. & P. 537. All prize-fights are illegal, and all persons en- gaged in them are punishable by law. Reg. v. Brow7i, Car. & M. 314. Two men fought with each other in a ring, formed by ropes supported by posts, in the presence of a large crowd. Amongst that crowd were the prisoners. It did not appear that the prisoners took any active part in the man- agement of the fight, or that they said or did anything. They were tried and convictel of assault as being principals in the second degree. The jury were directed that prize-fights are illegal, and that all persons who go to a prize- fight to see the combatants strike each other and who are present when they do so, are guilty in law of an assault, and that if the persons charged were not casually passing by, but stayed at the place, they encouraged the fight by their'presence, although they did not do or say anything. Upon this direction the jury found the prisoners guilty ; but added, that they did so in consequence of such direction of law, as they found that the prisoners did not aid or abet : — Held, by Deu- man, J., Huddleston, B., Manisty, Hawkins, Lopes, Stephen, Cave, and North, JJ., (Lord Coleridge, C. J., Pollock, B., and Mathew, J., dissenting,) that the above direction was not correct, that mere voluntary presence at a fight does not as a matter of law necessarily render persons so present guilty of an assault as aiding and abetting in such fight, and that the convic- tion could not be sustained. Reg. v. Coney, 8 Q B. D. 534 ; 51 L. J., M. C. 66 ; 46 L. T. 307 ; 30 W. B. 678 ; 46 J. P. 404 ; 15 Cox, C. C. 46. Held, by Lord Coleridge, C. J., Pollock, B., and Mathew, J., that the conviction could be sustained, that the legal inference to be drawn from mere presence, as a voluntary spectator, at a prize-fight is, in the absence of other evidence to rebut such inference, that the person so pre- sent is encouraging, aiding, and abetting such fight, and consequently guilty of assault, lb. Held, by the whole court, that a prize-fight is illegal, and that all persons aiding and abettmg therein are guilty of assault, and that the con- sent of the persons actually engaged m fighting to the interchange of blows does not afford any answer to the criminal charge of assault, lb. Semble, that mere presence of a person, un- explained, at a prize-fight affords some evidence for the consideration of a jury of an aiding or abetting in such fight. /*. Whether a 4. To Peocueb Aboktion.— /St'fi ante, MUEDEE, &c. Digitized by Microsoft® Prize-Jight or Sparring Match, X 2 597 CEIMINAL LAW — Eailiuays and Telegraphs. — The Bpeotators of a spafring match are not participes ' criminis, so that their evidence, touching what occurred at the match, requires corroboration. Beg. v. Young, 10 Cox, C. C. 371. There is nothing unlawful in sparring, unless, perhaps, the men fight on until tliey are so weak that a dangerous fall is like to he the result of the continuance of tlie game. Therefore, except in the latter case, death caused by an injury re- ceived dulring a sparring match does not amount to manslaughter. lb. Divers persons assembled in a room, en- trance money being paid, to witness a fight between two persons. The combatants fought ill a ring with gloves, each being attended by a second, who acted in the same way as at prize- fights. The combatants fought for about forty minutes with great ferocity, and severely punished each other. The police interfered and arrested the defendants, who were among the spectators. Upon the trial of an indictment against them for unlawfully assembling together for the pur- pose of a prize-fight, the chairman directed the jury that, if it was a mere exhibition of skill in sparring, it was not illegal ; but if the parties met intending to fight till one gave in from ex- haustion or injury received, it was a breach of the law and a prize-fight, whether the combatants fought in gloves or not, and left it to the jury to say whether it was a prize-fight or not : — Held, that the jury was properly directed. Beg. v. Orton, 39 L. T. 292. XXXIII. RAILWAYS AND TELEGRAPHS. 1. 'Endayigcring Safety of Persons on Bail- ways. " 2. Olstructing Engines or Carriages, 599. 3. Injuring Telegraphs, 600. 1. EifDANGERING SAFETY OF PESSONS ON Railways. Btatute.]— By 21 & 23 Vict. c. 100, s. 32, wlio- soever shall unlaufully and maliciously put or throw upon or across any railway any wood, stone or other matter or thing, or shall unlaii- fully and maliciously tahe up, remove or displace any rail, slce2)er or other matter or thing, belong- ing to any o-ailway, or shall unlawfully and maliciously turn, move or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously malte or shew, - hide or remove any signal or light upon or near to any railway, or shall unlaufully and ma- liciously do or cause to lie done any other matter or thing, with intent, in any of the cases afore- said, to endanger the safety of any rierson tra-oelling or icing upon such railway, shall he guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be hept in penal servitude for life, or for any term not less than Jive years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding tivo years, with or without liard labour, and, if a male under tlie age of sixteen years, with or without whipping. ^Former provision, 14 & 15 Vict c. 19, s. 6.) By s. 33, lohosoever shall unlaufully and maliciously throw or cause to fall or strike at, against, into or upon any engine, teiuler, carriage or truch used upon any railway, any wood, stone or other matter or thing, with intent to injure or 598 endanger the safety of any person being in or ujjon such engine, tender, carriage or truck, or in or upon any other engine, tender, carriage or truck of armj train of which such Jirst-msntioned engine, tender, carriage or truck shall form part, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be hept in penal servitude for life, or for any term not less than jive years (27 & 28 Vict, c. 47), or to be imprisoned for any term not ex- ceeding two years, with or without hard labours (^Former provision, 14 & 15 Vict. c. 19, s. 7.) Throwing Stones at Engines or Carriages.] — A person throwing a stone at engines or carriages using a railway, might be indicted under 3 & 4 Vict. c. 97, s. 15, for doing an act to endanger the safety of persons conveyed on the railway ; and the indictment might contain a count at common law for throwing the stone at the carriages." Beg. v. JBowray, 10 Jur. 211. To constitute a felony under 14 & 15 Vict. c. 19, s. 7, it was necessary that the stone or other thing used should be thrown against and strike an engine, tender, carriage or truck, having a person or persons in or upon it ; and, therefore, although a stone may be thrown at a train with intent to injure persons being therein, yet, if it strikes a carriage or tender not having any person in or upon it at the time, the felony is not proved. Bog. V. Court, 6 Cox, C. C. 202. On an indictment under 14 & 15 Vict. t. 19, s. 7, for maliciously throwing stones into a rail- way carriage, with intent to endanger the safety of any person in it, there must be evidence of an intent to do some grievous bodily harm, such as would support an indictment for wounding a particular person with that intent ; and, if it appears that the prisoner's intention was only to commit a common assault oil some person in the carriage, he must be acquitted. Beg. v. BooJte, 1 E. & F. 107. On an indictment for wilfully and maliciously casting anything upon a railway carriage or truck, either with intent to injure it or to endanger the safety of persons in the train ; there may be a case for the jury, although the train is a goods train, and there was no person on the particular truck, but there must be proof of the intent to endanger the safety of pei-sons in it. , Beg. y. Sanderson, 1 P. & F. 37. Evidence.] — On an indictment under 3 & 4 Vict. c. 97, s. 15, for unlawfully and wilfully doing anything to endanger the safety of persons conveyed in or upon any railway, it was un- necessary to allege or prove that the railway was constructed or ■worked under the powers of an act of parliament. Beg. v. Bowray, 10 Jur. 211. By Unlawful Act, Omission or Neglect.] — By 24 & 25 Vict. c. 100, s. 34, whosoever, by any un- lawful act, or by any luilful omission or neglect, shall endanger or cause to be endangered the safety of any person conveyed or being in or upon a railway, or shall aid or assist tlwrein, shall be guilty of a misdemeanor, and being con- victed thereof shall be liable, at the discretion of the court, to be imprisoned for any term not ex- ceeding two years, with or without hard labour. ^Former provision, 3 & 4 Vict. c. 97, s. 15. j Two boys went upon premises of a railway company and began playing with a heavy cart, which was near the line. Having started the Digitized by Microsoft® 699 CEIMINAL LAW- cart, it ran down the embankment by its own impetus. One boy tried to divert its course ; the other cried to him, "Let it go." The cart ran on without pushing, until it passed through a hedge and a fence of posts and rails, and over a ditch on to the railway ; it rested so close to the railway lines as to obstruct any carriages passing upon them. The boys did not attempt to remove it :— Held, that as the first act of moving the cart was a trespass, and there- fore an unlawful act, and as the jury found that the natural consequence of it was that the cart ran through the hedge, and so on to the railway, the boys might be properly convicted under 24 & 25 Vict. c. 100, s. 34. Hen. v. Mona- ghan, 11 Cox, G. C. 608 ; 23 L. T. 168. The neglect of the driver and stoker of a rail- way engine to keep a good look out for signals, according to the rules and regulations of the railway company, the consequence of which neglect is, that a collision occui-s, and the safety of passengers is endangered, was not an offence within 3 & 4 Vict. c. 97, s. 15. Reg. v. Pavdeii- ton, 6 Cox, C. C. 247. 2. Obstbucting Exginbs OB Caeeiages. statute.]— By 24 & 25 Vict. c. 97, s. 35, lolioso- cvcr sliall unlawfulhj and maliciously put, place, cast or throw vjion or acros/t any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously talie up, re- move or displace any rail, sleeper, or other matter or thing helonging to any railway, or shall unlawfully and maliciously turn, move or divert any points or other machinery helonging to any railway, or shall unlawfully and maliciously make or shew, hide or remove, any s'ignal or light upon or near to any railway, or shall unlaw- fully and maliciously do or cause to lie done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, vpxct, overthrow, injure or destroy any engine, tender, carriage, or truck using suck railway, shall he guilty of ^felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept ■in penal servitude for life, or for any term not less than five years (27 & 28 Vict.c. 47), or to be imprisoned for any term not exceeding two years, imth or without hard labour, and, if a male under the age of sixteen years, loith or without whipping. (^Former provisions, 3 & 4 Vict. c. 97, s. 15, and 14 & 15 Vict. o. 19, v. 6.) By s. 36, whosoever, by any unlaiiful act, or by any loilful omission or neglect, shall obstruct or cause to be obstructed any engine or carriage using any railway, or sliall aid or assist therein, shall be guilty of a misdemeanor, and being con- victed thereof shall be liable, at the discretion oftlie court, to be imprisoned for any term not exceeding two years, with or without hard labour. (Former provision, 3 & 4 Vict. c. 97, s. 15.) Maliciously.]— The prisoners placed a stone upon a line of railway, so as to cause an obstruc- tion to any carriages that might be travelling thereon : — Held, that if this was done mis- chievously, and with an intention to obstruct the carriages of the company, the juiy would be justified in finding that it was done maliciously. Beg. V. Upton, 5 Cox, C. C. 298. Raihoays and Telegraphs. 600 Upon an information before justices on behalf of a railway company, for an offence against its wi '^corporation, in placing stones and rub- bish on the railway, and thereby obstructing the tree passage of the same, evidence that the act was done by certain persons employed by the defendant to repair a wall between the railway and his premises adjoining; and that on one occasion the defendant himself, who was stand- ing by, nodded his head, and directed the work- man to go on, is sufficient to warrant the justices Act done by Servants of tl^tme'^hmcfSsSm in convicting the defendant. Roberts Y.Preston 9 C. B., N. S. 208. What is an Obstruction.]— A man unlawfully altered some railway signals at a railway station. The alteration caused a train, which would have passed the station without slackening speed, to come nearly to a stand. Another train going in the same direction, and on the same rails, was due at the station in half an hour :— Held, that he had obstructed a train within the meaning of 24 & 25 Vict. c. 97, s. 36. Reg. v. Hadfield, 1 L. K., C. C. 253 ; 39 L. J., M. C. 131 : 22 L. T. 664 ; 18 W. E. 955 ; 11 Cox, C. C. 574. A man, who was not a servant of a railway company, stood on a railway between the two lines of rails, at a point between two stations. As a train was approaching he held up hie arms in the mode used by inspectors of the lino when desirous of stopping a train between two stations. This, as he intended that it should, caused the driver to shut off steam and diminish the speed, and led to a delay of four minutes : — Held, that he had obstructed a train within the meaning of 24 & 25 Vict. c. 97. s. 36. Reg. v. Hardy, 1 L. K., C. C. 278 ; 40 L. J., M. C. 62 ; 23 L. T. 785 ; 19 W. R. 359 ; l\ Cox, 0. C. 656. A party was liable to be indicted under 3 & 4 Vict. c. 97, s. 15, if he designedly placed on a railway substances having a tendency to produce obstruction to the carriages, though he might not have done the act expressly with that object. Reg. V. Molroyd, 2 M. & Eob. 339. B. placed a truck across a railway line, in such a manner that if a carriage or engine had come along the line.it would have been obstructed, and the safety of passengers, who might have been in any such carriage, would have been endangered. The railway had not opened for passenger traffic, and no carriage or engine was in fact obstructed : — Held, that he was guilty of a misdemeanor, under 3 & 4 Vict. c. 97, s. 15. Reg. V. Bradford, Bell, C. C. 268 ; 8 Cox, C. C. 309 ; 29 L. J., M. C. 171 ; 6 Jur.^-N. S. 1102 ; 2 L. T. 392 : 8 W. R. 531. 3. iNjnEING Tblegeaphs. statute.]— By 24 & 25 Vict. c. 97, s. 37, ichoso- i-vcr shall unlawfully and maliciously cut, break, throw down, destroy, injure, or remove any bat- tery, machinery, u'ire, cable, post, or other matter or thing tvhatsocver, being part , What are Unlawful Assemblies.] — Any as- sembly of persons attended with circumstances calculated to excite alarm, is an unlavrf ul assem- bly. Reg. V. Neale, 9 C. & P. 431. If parties assemble together for a purpose, which, if executed, would make them riotous ; but, having assembled, they do nothing, and separate without carrying their purpose into effect, this is an unlawful assembly. Rex v. BiH,5 C. &P. 154. A meeting called to adopt preparatory mea^ sures for holding a national convention, is an illegal meeting. Reg. v. Fursey, 6 C. & P. 81. Although a man may arm himself and his friends for the defence of the possession of his house against such as threaten to make an un- lavrful entry, he cannot lawfully do the same in defence of his close. Rex v. Rangor (^Bishop'), 1 Russ. C. & M. 388. If there is such an assembly that there would have been a riot if the parties had carried their purpose into effect, this is within 1 Geo. 1, stat. 2, c. 1, s. 1 ; and whether there was a cessation or not, is a question for the jury. Rex v. Wooleoeh, 5 C. & P. 516. Any meeting assembled under such circum- stances as, according to the opinion of rational and firm men, are likely to produce danger to the tranquillity and peace of the neighbourhood, is an unlawful assembly; and, in vievnng this question, the jury should take into their con- sideration the hour at which the parties meet, and the language used by the persons assembled, and by those who addressed them, and then con- sider whether fiiTa and rational men, having their families and property there, would have reasonable ground to fear a breach of the peace ; as the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. Reg. v. Vincent, 9 C. & P. 91. An assembly of great numbers of persons, which, from its general appearance and accom- panying circumstances, is calculated to excite terror, alarm, and consternation, is generally criminal and unlawful. Rex v. Sunt, 1 Russ. C. & M. 388. See Rex v. Hunt, 3 B. & A. 566. If persons assemble to obstruct the officers of the law, all so assembling are guilty of an un- lawful assembly, whether a riot takes place or not. Reg. v. McNaughten, 14 Cox, C. C. 576. Whether Presence is Essential.] — On an indict- ment for a riot, persons are not liable merely on account of their having been present and among the mob, even although they had the power of preventing it, unless they by word or act helped, incited or encouraged it. Reg. v. Athitison, 11 Cox, C. C. 330. All those who assemble themselves together with an intent even to commit a trespass, the execution whereof causes a felony to be com- mitted, and continue together abetting one another till they have actually put their design into execution, and also all those who are pre- sent when a felony is committed, and abet the doing of it, are principals in the felony. Reg. v. Howell, 9 C. & P. 437. If persons are assembled together to the number of three or more, and speeches are made to those persons to excite and inflame them, with a view to incite them to acts of violence, and if that same meeting is so connected in point of circum- stances with a subsequent riot, that you cannot Digitized by Microsoft® 603 CRIMINAL IjAW— Riots and Unlawful AssemhUcs. reasonably sever the latter from the incitement that was used, those who incited are guilty of the riot, although they are not present when it occurs. Beg. V. Sharpe, 3 Cox, C. C. 228. And all persons who join an assembly of this kind, disregarding its probable efEect, and the filarm and consternation that arc likely to ensue, and all who give countenance and support to it, are criminal parties. Ecif v. Hunt, 1 Kuss. G. & M. 388. No Infention of Carrying out Purpose Unlaw- fully.] — The appellants assembled with others for a lawful purpose, and with no intention of carrying it out unlawfully, but with the tnow- ledge that their assembly would be opposed, and with good reason to suppose that a breach of the peace would be committed by those who opposed it : — Held, that they could not Ije rightly con- victed.of an unlavri;ul assembly. Beatty v. Gill- lanla, 9 Q. B. D. 308 ; 51 L. J., M. C. 117 ; 47 L. T. 194 ; 31 W. E. 275 ; 46 J. P. 789 ; 15 Cox, C. C. 138. Indictment under Statute — Misdemeanor at Common Law.] — Two men were convicted upon an indictment which aven-ed that they " unlaw- fully and riotously did assemble, and unlawfully, riotously, and with force, demolish and pull down the house of W., and pull down and scatter a rick of hay of W. :" — Held, that, upon the hypo- thesis that they had demolished the house, not feloniously, but in the assertion of a supposed right, the indictment could be sustained as for a misdemeanor at common law ; that is, for a riot, with a statement of the demolition of the house as matter of aggravation. Reg. v. Casey, 8 Ir. R., C. L. 408. Afiray.] — ^An indictment for an affray which does not aver that the affray took place in a public street or highway is bad, and, upon error brought, will be quashed after verdict. Reg. v. O'Xeill, 6 Ir. R., C. L. 1. Illegal Training and Drilling.] — A count in an indictment, under 60 Geo. 3 & 1 Geo. 4, c. 1, the 1st section of which prohibits assemblies _ of persons for the purpose of unlawfully practising military exercise, and then goes on to impose a penalty on all persons who shall train or drill any other persons, or who shall be trained or drilled, is not bad for duplicity, though it charges the offence which is prohibited, and the offence for which a penalty is imposed. Reg. v. Hunt, 3 Cox, C. C. 215. See Gogarty v. Reg., 3 Cox, C. C. 306. 2. Duties of the Magistkaoy. Generally.]— A magistrate called upon to sup- press a riot is required by law to do all he knows to be in his power that can reasonably be expected from a man of honesty and of ordinary prudence, firmness and activity, under the circumstances. Mere honesty of intention is no defence, it he fails in his duty. R-cni v. Finney, 3 B. & Ad. 946 ; 5 C. & P. 254. Nor will it be a defence that he acted upon the best professional advice that could be obtained, on legal and militaiy points, if his conduct has been faulty in point of law. li. If, on a riot taking place, a magistrate neither 604 strains nor apprehends the rioters, nor gives any order to fire on them, nor makes any use of a militaiy force under his command, this is piimg, facie evidence of a criminal neglect of duty in him ; and it is no answer to the charge for him to say that he was afraid, unless his fear arose from suoli danger as would affect a firm man ; and if, rather than apprehend the rioters, his solo care was for himself, this is also neglect. Rex v. Kouiett, 5 C. & P. 282, n. Not bound to head Constables.] — In suppress- ing a riot, he is not bound to head the special constables, or to arrange and marshal them ; this is the duty of the chief constables. Rex v. Finney, 3 B. & Ad. 946 ; 6 C. & P. 254. Calling out Special Constables.] — Magistrates are not criminally answerable for not having called out special constables, and compelled them to act pursuant to 1 A: 2 Will. 4, c. 41, unless it is proved that information was laid before them, on oath, of a riot having occurred or being expected. Jh. Calling out Posse Comitatus.] — A magistrate is not chargeable with neglect of duty for not having called out the posse comitatus in case of a riot, if he has given the king's subjects reason- able and timely warning to come to his assist- ance. Ih. Calling' out Soldiers.] — ^A magistrate who calls upon soldiers to attack a mob and suppress a riot is not bound to go with them ; it is enough if he gives them his authority. Ih. A magistrate may assemble all the king's sub- jects to quell a riot, and may call in the soldiers, . who are subjects, and may act as such ; but this should be done with great caution. Rex v. Kcn- nett, a C. .t P. 282, n. Mode of Dispersing Assembly.]— It is not only lawful for magistrates to dispei-se an unlawful assembly, even when no riot has occurred ; but if they do not do so, and are guilty of criminal negligence in not putting down any unlawful assembly, they are liable to be prosecuted for a breach of their duty. Reg. v. Xeale, 9 C. & P. The mode of dispersing an milawf al assembly may be very different according to the circum- stances attending it in each particular case ; and an unlawful assembly may be so far verging to- wards a riot that it may be the bounden duty ot the magistrates to take immediate steps to dis- perse the assembly; and there may be cases where the magistrates will be bound to use force to dis- perse an unlawful assembly. /*. At the time of a riot, a magistrate may repel force by force, before the reading of the procla- mation from the Riot Act. Rex v. Kxinnett, 5 0. i. T> 282 n A magistrate is not justified in forcibly dis- persing a meeting upon the ground merely that he believes, and has reasonable and probable o-rounds for believing, that the meeting was held with an unlawful intent, unless the meeting be in itself unlawful ; and a plea justifymg an assault, upon the ground that it was oommitted by a magistrate in the dispersion of a meeting must either allege as a fact that the meeting was .a. .i.-p™,„.»o; ^ '^s^^sfy^^g^iii' - ■"'• *-■ - "■" "• - CRIMINAL LAW — Riots and Unlaivful Assemblies. 605 lawfalness can be inferred, O'Kdly v. Iltirrey, 10 L. E., Ir. 285. In case of a riot all magistrates, constables and even private individuals, are justified in dispers- ing tiie offenders ; and if tliey cannot otherwise succeed in doing so, they may use force. lii'g. v. JPursey, 6 C. & P. 81. 3. Aiding and Assisting the Constabu- LAEY. Hefusing to Assist.] — To support an indict- ment against a person for refusing to aid and assist a constable in the execution of his duty in quelling a riot, it is necessary to prove — first, that the constable saw a breach of the peace committed; secondly, that there was a reasonable necessity for calling on the defendant for his assistance ; and thirdly, that when duly called upon to assist the constable, the defendant, with- out any physical impossibility, or lawful excuse, refused to do so ; and in such a case it is no ground ofi defence that from the number of rioters the /single aid of the defendant would not have been of any use. Scff. v. Srown, Car. & M. 314. Extent of Protection.] — A person charged to aid a constable, and who does so, is protected eundo, morando et redeundo. Rog. v. Pkclps, Car. & M. 180. 4. Indictment. Form of.] — If an indictment on 1 Geo. 1, stat. 2, c. 5, s. 1, for remaining assembled one hour after proclamation, in setting out the proclama- tion omits the words " of the reign of," which "were contained in the proclamation read by the magistrate — this is a variance (but amendable under 14 & 15 Vict. e. 100, s. 24). Bex v. Woolcoclt, 5 C. & P. 516. Twelve persons were indicted for a riot and assaulting J. W. The indictment did not con- clude in terrorcm populi. Several of the defendants had been convicted, and, at an ensuing assize, at which the remaining defen- dants were tried, there was evidence that they had joined in the riot, but there was no proof of any assault, except the words "po. se," and " guilty," written on the indictment, over the names of the convicted defendants : — Held, that this was no proof of an assault as against the present defendants, and that they could not be convicted of the riot only, as the indictment did not conclude in terrorem populi. Rex v. Hnglhes, 4 C. & P. 373. But see 14 & 15 Vict. c. 100, s. 24. If persons are charged with a riot, and cutting down fences, and the indictment does not con- clude in terrorem populi, they cannot on that indictment bo convicted of a riot, but may be convicted of an -unlawful assembly. Rev v. Coj; 4 C. & P. 538. An indictment on 1 Geo. 1, stat. 2, c. 5, s. 1, for remaining assembled one hour after proclama- tion made, need not charge the original riot to have been in terrorem populi. Rex v. James, 5 C. & P. 153. Two Counts — Findirg of Grand Jury.] — An indictment containing two counts, one for a riot, and the other for an assault, found by the grand jury, a true bill as to the assault and ignoramus 606 Rex V. Meldhoiise, Cowp. as to the riot, is good. 325. Abatement by Death.] — If four are indicted for a riot, and two die before trial, and two are found guilty, judgment will not be arrested. Re.e V. Scott, 3 Buix 1262 ; 1 W. Bl. 350. 5. Evidence. Presence,] — On an indictment for a riot, the parties charged must be proved to Have been present before the fact of the riot can be given in evidence. Kieholson's case, 1 Lewin, C. C. 300. But it has since*been held that the prosecutor is entitled to prove the acts of any of the rioters before he connects the others with the riot. Reg. V. Cooper, 1 Russ. C. & M. 405. 6. Injuries to Peopeety by Eiotees. iSee L. C. J. TindaVs Charge on the Bristol Special Commhsion in 1832, 5 C. & P. 265, n.) Statute.]— By 24 & 25 Vict. c. 97, s. 11, if any persons, riotously and tnimiUnously assembled together to the disturbance of the p-uUie peace,, shall unlawfully and with force demolish, or pull down or destroy, or begin to demolish, pull down or destroy, any church, chapel, meeting-house or other place of dhine worship, or any house, stable, coachhouse, outhouse, ivarchouse, office, shop, mill, malthousi; hop-oast, bam, granary, shed, howl or fold, or any building or erection used in farming land, or in carrying on any trade or manufacture or any branch thereof, or any building, other than such as are in this section before mentioned, belonging to the Queen, or to any county, riding, division, city, borough, poor-law union, jmrish or place, or belonging to any university, or college or hall of any unirer- sity, or to any inn of court, or devoted m- dedicated to public use or ornament, or erected or maintained by public subscription or contri- bution, or any machinery whether fixed or movable, prepared for or enq>loyed in any manufacture or in any branch thereof, or any steam-engine or other engine for sinhing, worhing, ventilating or draining any mine, or any staith, building or erection used in conducting the business of any mine, or any bridge, waggon-way or trunk for conveying minerals from, any mine, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the couH, to be hept in penal servitude for life, or for any term not less tJuin Jive, years (27 & 28 Vict. c. 47), (>/■ to be im^ prisoned for any term not exceeding two years, with or without hard -labour, and loith or with- out solitary confinement. (Former enactment,. 7 & 8 Geo. 4, c. 30, s. 8.) Bj s, 12, if ally per.wns, riotously and tumul- tuously assembled together to the disturbance of the public peace, shall unlawfully and with force injure or damage any such church, chapel,, meeting-house, place of divine worship/, house, stable, coachhouse, outhouse, warehouse, office, shop, mill, malthousc, hop-oast, ham, graiiary, shed, hovel, fold, building, erection, machinery, engine, staith, bridge, ivaggon-way or trunh, as is in the last preceding section m^intioned, every such offender shall be guilty of a misdemeanor^ Digitized by Microsoft® 607 CRIMINAL JuAW— Riots and Unlawful Assemblies. and, Icing condctcd thereof, sJiall U liaUe, at the disc n-tionof the cinirt,to hc'ltept in penal servitude fur any term not exceeding seven and not less than five years (27 & 28 Vict. c. 47), or to lie imprisoned for any term not exceeding tioo years, with or without hard labour : provided, that if, upon the trial of any person for any felony in the last preceding section mentioned, the jury shall not be satisfied that such person is guilty thereof but shall be satisfied that he ii guilty of any offence in this section mentioned, then the jury may find him. guilty thereof , and lie may be 2ninished accordingly. Beginning to Demolish House— What is.]— It is not a beginning to demolish a house within 7 & 8 Geo. -t, c. 30, s. 8, nnless the jury is satisfied that the ultimate object of the rioters was to de- molish the house, and that, if they had carried their intention into full effect, they would, in point of fact, have demolished it. Hex v. Thomas, 1 C. & P. 237. An indictment for feloniously beginning to demolish a house, cannot be supported unless the persons committing the outrage had an intention of destroying the house ; and, therefore, Avhere considerable damage was done to a house by a mob, who did this with an intention of seizing a person who had taken refuge in the house : — Held, to be not within the statute. Bex v. Price, 5 C. & P. 510. Every man has a right to work for the best price he can get, but if others choose to work for less than the usual prices, the law will not per- mit that violence should be committed towards them, or towards those by whom they are em- ployed, or those with whom they are connected. Where a party of coal-whippers, having a feeling of ill-will towards a coal-lumper, who paid less than the usual wages, created a mob, and riot- ously went to the house where he kept his pay- table, and cried out that they would murder him, and began to throw stones, and broke win- dows, and partitions, and part of a wall, and continued after his escape throwing stones at the house, till they were compelled to desist by the threats of the police : — Held, that they might be convicted of beginning to demolish under 7 & 8 Geo. i, c. 30, s. 8, though their principal object was to injure the lumper ; provided it was also their object to demolish the house, either on account of its being used by him or by his men, and though they had not any ill-wiU against the owner of the house personally. Hex v. JBatt, 6 C. & P. 329. A. and others were indicted for feloniously demolishing the house of B. It was proved that A. and a mob of pei-sons assembled at H. ; A. there addressed the mob in violent language, and led them in a direction towards a police-office about a mile from H., some of the mob from time to time leaving, and others joining. At the police-oiEoe the mob broke the windows, and then went and attacked the house of B., and set it on fire, A. not being present at the attack on the house or at the fire :— Held, that on this state of facts A. ought not to be convicted of the demolition, as it did not sufficiently appear what the original design of the mob at H. was, nor whether any of the mob, who were at H., were the persons who demolished B.'s house. Meg. v. Howell, 9 C. & P. 437. If rioters attack a. house, and have begun to demolish it, but leave ofi of their own accord. Digitized by Microsoft® 608 after having gone a certain length, and before the act of demolition is- completed, this is evi- dence from which a jury might infer that they did not intend to demolish the house ; but if the mob was prevented from going on by the inter- ference of the police, or any other force, that would be evidence to shew that they were com- pelled to desist from that which they had de- signed, and it ,would be for the jury to infer that they had begun to demolish within 7 & 8 Geo. 4, 0. 80, s. 8. lb. Destroying movable shop-shutters is not a beginning to demolish within that statute, as they are not part of the freehold. /*. If a part of the object of rioters is to demolish a house, it makes no difilerence that they also acted with another object such as to injure a person who had taken refuge there. lb. On an indictment under 7 & 8 Geo. 4, c. 30, s. 8, for riotously beginning to demolish and de- molishing a dwelling-house, total demolition is not necessary, though the parties were not inter- rupted. If the house is destroyed as a dwelling- house, it is enough. Reg. v. Phillips, 2 M. C. C. 252; S. C.,nom. Reg. y.Langford, Cai-. & M. 602. Four men, members of, and connected with the family of, the owner of the cottage, with great violence, and to his great terror, drove him from it, and pulled it down all but the chimney: — Held, sufiieient to satisfy the statute, though no other persons were within reach of the alarm ;. they having no bonS, fide claim of right, but intending to injure the owner. lb. If persons riotously assemble and demolish a house, really believing that it is the property of one of them, and act bonS, fide in the assertion of a supposed right, this will not be a felonious demolition of the house within 7 & 8 Geo. 4, c. 30, s. 8, even though there was a riot. lb. Demolition by Tire.]— If rioters destroy a house by fire, this is a felonious demolition of it within 7 & 8 Geo. 4, c. 30, s. 8, and the person guilty of -such an ofiience may be convicted on an indictment founded on that enactment, and need not be indicted for arson. Reg. v. Harris, Car & M. 661. 8. P., Reg. v. Christian, 12 L. J., M. C. 26. , . If rioters destroy a house by fire, that is as much a demolition as if any other mode of de- struction were used. Reg. v. Howell, 9 G. & P. 437. Eiotously— What is.]— The 7 & 8 Geo. 4, c. 30, s. 8, not having given any definition of what shall be a riot within the meaning of that enact- ment, the common-law definition of a riot must be resorted to, and in such a case, if any one of her Majesty's subjects is terrified, this is a sufii- eient terror and alarm to substantiate that part of the charge of riot. Reg. v. PhiUips, i M. C. C. 252 ; S. C, nom. Reg. v. Langford, Car. & M. 602. Presence not Necessary.]— If a house is de- molished by rioters by means of fire, one of the rioters, who is present while thefire is burning, mav be convicted for the felonious demolition unler 7 & 8 Geo. 4, c. 30, s. 8, although he is not proved to have been present when the house was originally set on fii-e. Beg. v. Simpson, Car. &, M. 669. 609 Question for Jury.] — If, in a case of feloniously demolishing a house by rioters, it appears that some of the prisoners set fire to the house itself, and that others carried fumitixre out of the house and burnt it in a fire made on a gravel- walk on the outside of the house, it will be for the jury to say whether the latter were not encouraging and taking part in a general design of destroying the house and furniture; and if so, the jury ought to convict them. Il<'g. v. Harris, Caa-. & M. 661. Depositions — Application of Prisoner for Copy.] — A prisoner had been committed on a charge of high treason, and afterwards the grand jury returned a true bill against him, with others, for feloniously demolishing a house, under 7 & 8 Geo. 4, c. 30, s. 8. He pleaded to that indict- ment, and wished to be tried after the other -prisoners, who were indicted with him for feloni- ously demolishing the house, on the ground that he had had no copy of any depositions as to that charge. But this was not allowed, as the prose- cution might have been commenced without going before any magistrate, and then there would have been no depositions at all. Reg. v. Simpson, Car. & M. 669. XXXVI. ROBBERY. 1. The Offence. 2. Gayotting, 613. 3. Indictment, 613. 4. Etiricnre, 614. o. Trial, 614. 6. Assault with Intent to IloTj — Violence, 616. 7. Punishment of Whijiping, 617. 1. The Offexce. Statute.]— By 24 & 25 Viet. c. 96, s. 40, loho- .focver shall rol> any person, of shall steal any chattel, motley, or valnahle security from the person of another, shall he guilty of felony, and being convicted, thereof shall be liable, at the discretion of the court, to be kept in penjil servitude for any term not exceeding fourteen years, and not less than fire years (27_& 28 Vict. c. 47), or to be imprisoned for any term not e.reeeding tteo years, with or icithovt hard labour, and with or tcithout solitary confine- ment. (Former provision, 7 Will. 4 & 1 A^ct. c. 87, s. 5.) Taking — What is.] — If a robber takes a purse of money from a person and restores it to him immediately, saying, " If you value your purse take it back and give me the contents," but is apprehended before the money is delivered to him, yet the crime is completed. Rex v. Peat, 1 Leach, C. C. 228 ; 2 Bast, P. C. 557. Carrying away — ^What is.] — To remove an ear-ring from the curls of a lady's hair, where it had accidentally been fixed, is a sufiicient cariying away. Rex v. Lapier, 1 Leach, C. C. 320 ; 2 Bast, P. C. 557, 708. Bodily Fear — No Threats.] — Taking money from a woman at the time of au attempt to commit a rape amounts to robbery, although there was no demand of money made by the CKIMINAL luKSN—Rohhery. 610 prisoner, and it was clearly his original intent only to commit a rape. Rex v. MacWiam, 2 East, P. C. 711. Where money was given to one of the mob during the riots in London, in 1780, upon knock- ing at the prosecutor's, door in a menacing manner : — Held, that it was robbery. Rex v. Tai)li7i, 2 East, P. C. 712. ■ In Case of Threats.]— Where the prisoners threatened to bring a mob from Birmingham (then in a state of riot and disturbance), and burn the prosecutor's house if he did not give them money, and he did so under fear of that threat : — Held, a robbery. Rex v. Astley, 2 East, P. C. 729 ; Ilex v. Brown, 2 East, P. C. 731. So it was held in the case of a threat to tear down corn, and level the house. Rex v. Simons, 2 East, P. 0. 731. If a person by force or threats compels another to give him goods, and by way of colour obliges him to take, or if he oSers, less than the value, it is robbery. Rex v. Simons, 2 East, P. C. 712 ; S. P., Rfx V. Spencer, 2 East, P. C. 712. Threat of Legal Imprisonment.] — Where persons under pretence of au auction got a woman into a house, and compelled her, by threats of carrying her before a magistrate and to prison for not paying for a lot pretended to have been bid for by her, to pay them one shilling through fear of prison, and for the purpose of obtaining her liberation, but without any fear of any other personal violence : — Held, not robbery, but only duress. Rex v. Wood, 2 East, P. 0. 732. See now 24 & 25 Vict. c. 96, s. 45. To obtain money by a threat to send for a con- stable, and take the party before a magistrate, and thence to prison, is not robbery ; for the threat of legal imprisonment ought not so to alarm any mind as to induce the person to part with his property. Ilex v. Knewland, 2 Leach, C. C. 721 ; 2 East, P. C. 732. Force — What is sufficient to constitute Eobbery.] — Suddenly snatching a bundle from the hands of a boy as the prisoner ran past him, is only larceny, as there was not a sufficient degree of force and terror to constitute robbery. lUx V. J/aeavlay, 1 Leach, C. C. 287 ; S. P., Rex V. Robins, 1 Leach, C. 0. 290, n. But snatching an article from a man will con- stitute robbery, if it is so attached to his person or clothes as to afEord resistance. Rex v. Mason, K. & B. C. C. 419. To force an ear-ring from the ear of a lady, with a felonious intent to steal it, is a sufficient degree of violence to constitute robbery. Rex V. Lapier, 1 Leach, C. C. 320 ; 2 East, P. C. 557, 708. To snatch a diamond pin from the head-dress of a lady, with such force as to remove it with part of the hair from the place in which it was fixed, is a sufficient violence to constitute robbery. Rex V. Moore, 1 Leach, C. C. 335. Snatching property from the hand of another is not sufficient force to constitute highway rob- bery. Rex V. Baher, 1 Leach, C. 0. 290 ; 2 East, P. C. 702. To constitute the crime of highway robbery, the force used must be force with intent to overpower the party, and prevent his resistance ; and if the force used is not with that intent, but only to get Digitized by Microsoft® 611 CRIMINAL LAW— Robbery. possession of the property of the party attacked, it is not highway robbery. }tf,x v. Gnosil, 1 C. & P. 504. A. asked B. what o'clock it was, and B. took out his watch to tell him, holding his watch loosely in both his hands. A. caught hold of the ribbon and key attached to the watch and snatched it from B., and made ofE with it : — Held, no robbeiy, but a stealing from the person. lieg. V. mighes, 2 C. & K. 214. Excessive Force by Officers.] — If a bailiff handcuffs a prisoner, under pretence of carrying him to prison with greater safety, and by means of this violence extorts money, he is guilty of robbery. Rex v. Gmooigne, 1 Leach, G. C. 280 ; 2 East, P. C. 709. Threat to Charge with Unnatural Crime.] — If the property is not taken by violence, nor parted with through fear, it is no robbery ; though there was sufficient legal and reasonable ground for fear, as upon a threat to charge one with an unnatural crime. Hex v. Heans, 2 East, P. C. 734 ; 2 Leach, C. C. 616. The crime of robbery may be committed by obtaining money from a man, by threatening to charge him with having been guilty of sodomitical practices. Rex v. Jones, 1 Leach, C. C. 139. To obtain money from a person against his will, by threatening to carry him before a magistrate, and to accuse him of unnatural practices, amounts to robbery, though no actual or personal violence is used. Rex v. Donnally, 1 Leach, C. C. 193 ; 2 East, P. C. 713, 783. It is equally a robbery to extort money from a peraon, by threatening to accuse him of an un- natural crime, whether the party so threatened has been guilty of such crime or not. Rex v. Gardner, 1 C. & P. 479. If a man obtains property from another by ac- cusing him of having been guilty of an unnatural crime, it will amount to robbeiy, although the party was under no apprehension of personal danger, and felt no other fear than that of losing his character. Re.r v. HUiltman, 1 Leach, C. C. 278 ; 2 East, P. C. 728. Semble, it is still robbery to extort money by threatening a charge of sodomy. Reg. v. Straii- (jer, 2 M. C. C. 261. Obtaining monSy by threatening to charge a man with an unnatural crime, and cany him before a magistrate, is robbeiy, if there is any constraint upon his person. Rex v. Cannon, K. & K. C. C. 146. Threat must be immediately before Thing Taken.]— To constitute robbery by taking money fi-om another upon a threat of charging him with an unnatural crime, the money must be taken immediately upon the threat made, and not after the parties have separated, and there has been time for the prosecutor to deliberate and procure assistance. Rex v. Jaeksoii, 1 Bast, P. C. Ad. xxi. ; 1 Leach, C. C. 193, n. ; 2 Leach, C. C. 618, n. Threat to Accuse Husband of Indecent Assault. ] — Obtaining money from a woman by threatening to accuse her husband of an indecent assault is not robbery. Rex v. Edwards, 5 C. & P. 518 ; S. a, nom. Rex v. Edward, 1 M. & Bob. 2o7. Fear of Losing Character "^ Place.]---Where Digitized by Microsoft® 612 money was obtained by calling a man a sodomite and threatounig him, but the money was parted with by the prosecutor, not so much from fear of losmg his character as from fear of losing his place :— Held, that it was sufficient to constitute a robbery. Rex v. Elmstead, 2 Euss. C. & M. 128. The parting with money or goods, through fear of loss of character and service, upon a charge of sodomitical practices, is sufficient to constitute robbery, altliough the party has no fear of being taken into custody, nor any dread of punishment. Rex v. Egerton, B. & E. C. 0. 375. Demand of Property bon^ fide Made.]— A. had set wires in which game was caught ; B., a gamekeeper, found them and took them, with the game caught in them, for the use of the lord of the manor : A. demanded them with menaces, and B. gave them up. The jury found that A. acted under a bona flde impression that the wires and game were his property : — Held, that it was no robbery. Rex v. Ilall, 3 C. & P. 409. Taking out of Prosecutor's Possession.] — A. and B. were walking together, B. carrying A.'s bundle, when C. and D. came up and assaulted A. : B. threw down the bundle, and ran to the assistance of A., when C. took it up and made off with it. C. and D. were indicted for robbery, A. being the prosecutor : — Held, that they could not be convicted of the robbeiy, but only of simple larceny, as the thing stolen was not in the personal custody of A. Rex v. l<'alloios, 5 C. & P. 508. Sed quEere. See Reg. v. Thompson, L. & G. 225 ; 32 L. J., M. C. 53. What Property the subject of Robbery.]— A. was attacked by robbers, who, after using very great violence towards him, toolc from him a piece of paper, on which was written a memo- randum respecting some money that a person owed him : — Held, robbery. Rex v. Ringley, 5 C. & P. 602. Parties — Common Intent.] — If a gang of poachers attack a gamekeeper and leave him senseless on the ground, and one of them returns and steals his money :— Held, that one only can be convicted of the robbery, as it was not in pursuance of any common intent. Rex v. Haw- kins, 3 0. & P. 392. Property parted with so as to Prosecute.] — Parting with property upon the charge of an unnatural crime will not make the taking a robbery, if it is parted with, not from the fear of loss of character, but for the purpose of prose- cuting. Rex V. Fuller, E. & E. C. C. 408. Force must be Used with Intent to Rob.]— In order to constitute the offence of robbery, not only force must be employed by the party charged therewith, but it is necessary to shew that that force was used with the intent to accomplish the robbeiy. Reg. v. Edwards, 1 Cox, G. G. 62. When it appeared that a wound had been acci- dentally inflicted on the hand of the prosecutrix: —Held, that an indictment for robbeiy was not sustainable. 11). . , ,, ^s. a i,;„ A creditor having violently assaulted his debtor, and so forced him to give him a cheque in part payment, and having then again assaulted him, in order to force him to give him money in .payment of the debt :-Held, that as there was 613 CKIMINAL TuAW—Eobhen/. 614 no felonious intent, ho could not properly be convicted of robbery. Hef/. v. llcmmlnrjs, i F. & V. 50. 2. Gaeotting. statute.]— By 24: & 2:. Vict. c. 100, s. 21, wlio- socver shall, hij any means whatsocecr, attemjit to cliolic, suffocate of strangle any other person, or shall, hy any means eideidatcd to chohe, suffocate or stranr/le, attempt to render any other 2)crsoii insensible, ttneonsciuus or incajJablc of resistance, luith intent in any of such cases thereby to enable himself or any other j'crson to commit, or ivith intent in any of such cases thereby to asxixt any other //erson in committing, any indictable offence, shall be guilty of felony, and being eonrieted thereof shall be liable, at the discretion of the court, to be hept in 2>enul servitude for life, or for any term not less than five years (27 & 28 Vict. c. iT), or to be impr.i- sonedfor any term not c.rceeding two years, loith or toithout hard labour. 3. IA'DICTMEXT. offensive Weapon.] — An indictment for a highway robbery must state that the assault was feloniously made with an offensive weapon. Bee V. Pelfryman, 2 Leach, C. C. 563 ; 2 East, P. C. 783, Violently.] — An indictment for robbery need not have the word " violently ; " but it must •ippear upon the whole statement that violence was used, lie.e v. Smith, 2 East, P. C. 784. Whose Property — Master or Servant.] — A servant was sent out by his master to receive money from his master's customers, and having received the monfiy, he was robbed of it on his way home. Semble, that an indictment for this robbeiy, in which the money was laid to be the property of his master, could not be suppoi'ted, as the money had never been in the possession of the master, lieg. v. liudieli, 8 C. & P. 237. And when, in such a case, the objection was taken during the trial, the judge directed the jury to be discharged, and a new indictment to be sent to the gi-and jury, containing a count laying the property in the servant. /*. Prosecutrix Harried before Indictment Pound.] — An indictment for a robbery on an unmarried woman in her maiden name is good, although she marries before the indictment is found. Hex v. Turner, 1 Leach, C. C. 536. Who may be Convicted.] — A. and B. were in- dicted for the offence of robbery. The jury found that A. took the property of the prosecutor from him by violence, and that B. was present during part of the time, and that he was a party, with A., to a design to bring the prosecutor to the place where he was robbed by A., and to ob- tain i^roperty from him on a false charge of an unnatural crime, but that he was not aiding or assisting in, or privy to the taking of, the pro- perty from the prosecutor by violence : — Held, that, in order to convict B., the indictment should have been framed on 7 "Will, i & 1 Vict. c. 87, s. 4 ; and that he could not, since the passing of the statute, under the circumstances of the case, be convicted on an indictment charg- ing the offence of robbery. Reg. v. Taunton, 9 0. & P. 309 ; 2 M. C. C. 118. "Where several are indicted for robbery, it is not necessary to aver that they were together, but where one only of the party is indicted, it ought to be averred that he committed the offence " together with others." liaffety's case, 2 Lewin, C. C. 271. See Reg. v. Ramsdcn, \ Cox, C. C. 37. Eohbery from Two Persons at Same Time.] — ■ An indictment for robbery, which charges the prisonera with having assaulted G. P. and H. P., and stolen 2s. from G. P. and la. from H. P., is correct, if the robbing of G. P. and H. 1\ was all one act ; and, if it were so, the .counsel for the prosecution will not be put to elect. Reg, V. aiddins. Car. & M. 634. 4. Evidence. What Admissible.] — On an indictment for robbery, the declaration in articulo mortis of the party robbed is not admissible in evidence. Re,K V. Lloyd, 4 C. & P. 233. Other Cases.] — A. and B., when riding in a gig together, were robbed at the same time, A. of his money, B. of his watch, and violence used towards both. There was an indictment for the robbing of A., and another indictment for the robbing of B. : — Held, that, on the trial of the first indictment, evidence might be given of the fact of the loss of the watch by B., and that it was found on one of the prisoners, but that no evidence ought to be given of any violence offered to B. by the robbers. Rex v. Rooncy, 7 C. & P. 517. ^ If persons who had formed part of a mob ob- tained money from a party by advising him to give money to the mob, and are indicted for this as a robbery, the prosecutor, to shew that this was not bon^ fide advice, may give evidence of demands of money made by the same mob at other places, before or afterwards in the course of the same day, if any of the prisoners were present on those occasions. Rex v. Winhworth. 4 C. i: P. 444. That Property in Prosecutor's Possession.] — - In a case of robbery from th^person, where the property alleged to have been stolen has not been seen or known to be safe immediately be- fore the robbeiy, if there is any evidence on the subject, it is for the jury to say whether the property really was in a position to be stolen as alleged. Reg. v. Willdns, 10 Cox, C. C. 368. Sufficiency — Footmarks.] — Evidence of foot- marks is, per se, insufficient evidence on which to convict of a robbery. Reg. v. Britton, 1 P. & V. 354. 5. Tkial. Verdict— Powers of Jury.]— By 24 & 25 Viet. c. 96, s. 41, if, ujjon the trial of any person upon any indictment for robbery, it shall appear to the jury upon the evidence that the defendant did not commit the crime of robbery, hit that he did com/mit an assault with intent to rob, the defendant shall not, by 7'cason thereof, be entitled to be aee[uittcd, but the Jury shall be at liberty to return as their verdict that the de- fendant is guilty of an assault loith intent to Digitized by Microsoft® 615 rol ; and thercajyon such difetithint shall he liaUe to le imnhhed in thesame manni-fas ■iflto had hem concicted vpon an indictment foi- feloniously assaulting with intent to roh ; and no2>emm so tried as is herein lastlij nieniioned xhall be liable to he afterwards prosecuted for an assault with intent to commit the rohheryfor which he was so tried. (Former provision 14 k. 15 Vict. 0. 100, s. 11.) Before this Eaactment.]— The following de- cisions toolc place under 7 Will. 4 & 1 Vict. c. 85, s. 11, which was repealed by 14 & 15 Vict c. 100, s. 10 :, and by that section it was enactedj that on the trial of an indictment for robbery, the jury may conrict of an assault with intent to roh, and, on conriction, the prisoner is liable to the same jmnishment as upon an indictment for feloniously assaulting with intent to roh. Independent Assault unconnected with Bobbery.]— A., B. and 0. were indicted for havinc robbed and beaten D. A. knocked D. down, and it was imputed that B. and C. stole the property from his pockets :— Held, that if B. and C. stole the property, and A. did not participate in the robbery, A. could not be convicted of an assault, as the assault committed by him was an indepen- dent assault unconnected with the robbery ; but that, if the jury thought that D. was not robbed by any of the prisoners, bat had been assaulted by all of them, they might find all guilty of the assault. Reg. v. Barnett, 2 C. & K. 594 ; 3 Cox, C. C. 432. When Sustainable.]— An indictment for robbery charged that A. and B. together assaulted C, and robbed him of his watch. At the trial C. did not appear, and there was no evidence of the felony, but a witness saw C. on the ground on the night in question, and several persons round him abusing him, and this witness saw A. strike C. The jury convicted A. of an assault, but said that they were not satisfied that A. had any intent to rob C. : — Held, that the conviction was right. Reg. v. Birch, 2 C. & K. 193 ; 1 Den. C. C. 185. The prisoners were indicted for robbery ; the jury acquitted them of the robbery, but found that the prisoners were guilty of assaulting and ■beating the prosecutor with intent to rob him : — Held, that the jury were not justified in find- ing this verdict, and that the judgment must be arrested, as the assaults contemplated by 7 Will. 4 & 1 Vict. c. 85, s. 11, were misdemeanors, and as the jury had found the prisoners guilty of a felony, which was not in the indictment. lieg. V. Reid, T. & M. 431 ; 2 Den. C. 0. 88 ; 4 Cox, C. C. 104 ; 20 L. J., M. C. 67 ; 15 Jur. 181. Burglariously breaking and entering a dwell- ing-house, with intent to commit a rape, was not a crime which included an assault ; and therefore, in an indictment for such a burglary, the prisoner could not be convicted of an assault. Req. V. Wathins, Car. & M. 264 ; 2 M. C. C. 217. S. P., Beg. V. Crumpton, Car. & M. 597. If on an indictment for a robbery with violence the robbery was not proved, the prisoner could not be found guilty of the assault only, under 7 WiU. 4 & 1 Vict. c. 85, s. 11, unless it appeared that such assault was committed in the progress of something, which, when completed, would be, and with intent to commit, a felony. Reg. v. •Greenwood, 2 C. & K. 339. CRIMINAL J.AW— Robbery. ichosoc 616 Assault with Intent to Rob-Violence. Statute. ]_By 24 & 25 Vict. c. 96, s. 42 f„ ,..i,Zi nT "''%"}* a-ny person, with intent ■i ed thereof shall {save and e.rccpt in the cases lohere a greater pumsliment is provided hy this act) bchahle, at the discretion of the court, to be licpt in penal serritmde for the term of tin- years (27 & 28 Vict. .-. 47), or to be imprhLd for any term not crcccding two years, loith or witlmut hard labour, rind with or without soli- tary confinement. (^Former provision, 7 & 8 Geo. 4, u. 29, s. 6 ; 7 Will. 4 & 1 Vict. c. 87, s. 6.) By s. 43, whosoetrr shall, being armed with any ofiensice loeapon or instrument, roh or as- sault with intent to roh, any person, or shall together with one or more other person or per- sons, rob, or assault with intent to roh, any per- son, or shall roh any person, and at the time of or immediately before or immediately after such robbery, .shall wound, heat, strilte, or use any other personal riolence to any person, shall be guilty of felony, and being conrictcd thereof shall he liable, at tlio discretion of the court, to he hept in penal sercitude for life, or for amj term not less than fire years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding tiro years, with or ivithout hard labour, and with or ivithout solitary confinement. (^Former provision, 7 Will. 4 & 1 Vict. c. 87, d. 3.) What may be Stolen.] — A. was decoyed into a house and chained down to a seat, and com- pelled to write an order for the payment of money and an order for the delivery of deeds. The paper on which he 'wrote remained in his hand half-an-hour, but he was chained all the time : — Held, that this was not aii assault with intent to rob within 7 & 8 Geo. 4, c. 29, s. 6. Re.v V. Edwards, 6 C. & P. 521. Assault on Person intended to be Bobbed.] — It must be proved that the assault was made on the person intended to be robbed. Ri:v v. Thomas, 1 Leach, C. C. 330 ; 1 East, P. C. 417. And see ne.r V. Trusty, 1 East, P. G. 418. Therefore an assault on a post boy, with intent to rob the traveller, is not sufficient. Ih. Demand and Assault.] — There must be a de- mand of money or other property, as well as an assault, to constitute the offence. Rex v. Par- fait, 1 Leach, C. C. 19 ; 1 Bast, P. C. 416. What kind of Threats.] — A. and B., on a con- certed plan to obtain money from C, threatened to accuse him of an indecent exposure of his person, and A. (B. being present) seized C. by the collar, and A. and C. went to a station- house, and there A. made the threatened charge : —Held, that, on these facts, A. and B. might be convicted of an assault with intent to rob C, although the threats used did not come within the terms of 7 & 8 Geo. 4, c. 29, ss. 7, 9, or of 7 Will. 4 & 1 Vict. 0. 87, s. 4. Beg. v. Stringer, 1 C. & K. 188 ; 2 M. C. C. 261. Bona fide Claim of Eight.]— A., at C. fair, came up to B., the prosecutor's father (being a stranger to him), and gave him eleven sovereigns to buy him a horse, and B. put them into his pocket. B. refused to give the eleven sovereigns back, and A. and the prisoner, who was in his- Digitized by Microsoft® 617 CEIMINAL LAW—Sedition. 618 company, assaulted him, but could not get the money from him. On the next day the prisoner asked B. for the eleven sovereigns ; and, at L. fair on a subsequent day, the prisoner, having seen the prosecutor receive seven sovereigns, de- manded the eleven sovereigns of him, and then knocked him down, and tried to get the seven sovereigns out of his pocket : — Held, that there was such a semblance of a claim of right, that this was not an assault with an intent to rob. Msg. V. Soden, 1 C. & K. 395. Indictment.] — An indictment for an assault with intent to rob, which charges that the prisoner in and upon E. B. feloniously did make an assault, "with intent the moneys, goods and chattels of K. B., from the peraon and against the will of E. B., then and there feloniously and violently to rob, steal, take and carry away, against the form of the statute," is good. Heg. T. Huxley, Car. & M. 596. Joinder of Counts.] — A. was indicted in one count for feloniously assaulting the prose- cutor with intent to steal his moneys and goods, and in another count for the misdemeanor of attempting to steal the same moneys and goods. He was found guilty on the first count ; where- upon his counsel moved in arrest of judgment, on the ground that the indictment was bad, by reason of a misjoinder of counts : — Held, that the objection was unfounded, and that A. was properly convicted. Reg. v. Ferrjtison, Dears. C. C. 427 ; 2i L. J., M. C. 61 ; 1 Jur., N. S. 73. Verdict — Powers of Jury.] — An indictment charged that A. B., in and upon C. D., felo- niously did make an assault, and him the said C. D. in bodily fear and danger of his life did put, and two pieces of current silver coin, from the person and against the will of the said C. D. feloniously and violently did rob, steal, take and carry away; and that A. B. immediately before, at the time of and immediately, after such robbery, as aforesaid, did feloniously beat and strike and use other personal violence to said C. D. contra formam statuti. The jury found A. B. guilty of beating and assaulting C. D., with intent to rob him '. — Held, that, as the offence of assaulting with intent to rob was not expressly stated in the indictment, the prisoner, at common law, could not be con- victed ; and, secondly, as an assault with intent to rob was made felony by statute, the jury was not at liberty, under 7 Will. 4 & 1 Vict. c. 85, s. 11, to find the prisoner guilty of that felg- nious assault. Reij. v. Roid, 4 Cox, C. C. 104 ; 2 Den. C. C. 89 ; T. & M. 431 ; 20 L. J., M. 0. 67 ; ,15 Jur. 181. Where prisoners were indicted for robbery under aggravated circumstances, it was compe- tent for the jury, under 14 & 15 Vict. c. 100, s. 11, to find the prisoners guilty of an aggra- vated assault with intent to rob, the assault following the nature of the robbery charged ; and prisoners found guilty of such aggravated assaults were liable to transportation, under 7 Will. 4 & 1 Vict. 0. 87, ss. 3, 10. Rag. v. Mitohell, 3 C. & K. 181 ; 2 Den. C. C. 468 ; 5 Cox, 0. 0. 541 ; 21 L. J., M. 0. 135 ; 16 Jur. 506. 8ee also cases ante, col. 615. 7. Punishment of Whipping. Statute.]— By 26 & 27 Vict. u. 44, s. 1, wliere any person is convicted of a crime under s. 43 of 24 & 25 Vict. c. 96, or under s. 21 of 24 & 25 Vict. c. 100, the coui't iefore whom lie is con- victed may, in addition to th-e punishment awarded h/ the said sections, or any part there- of, direet tliat the offender, if a male, he once or twice or thrice privately wh/pj^ed, subject to tile following provisions : (i), that in tJie case of an offender whose age does not exceed sixteen years, the numicr of stroltes at each such whipping do not exceed twenty-five, and tjui instrument used shall he a hirch rod; (2), that in the case of any otlier male offender, tJie nmnher of stroluis do not exceed fifty at each such whipping 4 (3), that in each case the court in its sentence shall specify the number of strohes to he inflicted and the instalment to he wsed : provided, that in no case shall such whipping tahe place after the expira- tion of six mmAlis from the pasung of the sen- tence ; provided also, that every such whipping, to he inflicted on any person sentenced to penal servitude, sliall he inflicted on him before he shall he removed to a convict prison, loith a view to his undergoing his sentence of penal servitude. XXXVII. SANITAEY LAWS, See Health— Fisher's "Digest." XXXVIII. SEDITION-. Indictment.] — An indictment for sedition alleged " that the ' defendant, amongst other words and matter, uttered the vyords and matter following," and then set out several sentences as. though they had been uttered continuously. The evidence shewed that they had not been so uttered, but that the sentences had been selected from different parts of the speech, other matter intervening between them : — Held, that there was no variance, and that if any portions of tlie speech omitted, varied, or controlled the sense oi; those parts that were set out, the onus was upon the defendant to shew it. Req. v. Orowe, 3 Cox, G. C. 123. Where an indictment contained counts for sedition, attending a seditious meeting and a riot, the court refused to quash the indictment, or compel the counsel for the prosecution to elect, although the judgment on the last count might be dMerent from that upon the othere. Reg. V. Fussell, 3 Cox, 0. C. 291. The words set out in an indictment for sedi- tion were these, " if the Queen neglects to recog- nize the people, then the people must neglect to recognize the Queen." It was proved that the word " forget " was used in both instances, and not " neglect : "—Held, to be a fatal variance as. far as that sentence was concerned, and that the- passage must be struck out. Ih. Pleading to, after Demurrer.]— A pri- soner indicted under 11 & 12 Vict. c. 12, may, after demurring to the indictment, if his de- murrer is overruled, plead over to the felony. Reg. V. Duffy, 4 Cox, C. C. 24. But see Beg. v. Hendy, 4 Cox, C. C. 243, and 'Reg. v. Faderman, 4 Cox, C. C. 385. XXXIX. SEPULTUEE— DESECEATION OF. Bemoving Dead Bodies for Purpose of Dissec- tion.] — Taking up dead bodies, even though for Digitized by Microsoft® 619 CEIMINAL IjAW— Sodomy and Bestiality. the purpose of dissection, is an indictable offence, lleg. v. Lynn, 2 T. R. 733 : 1 Leach, C. C. 497. Selling the dead body of a person capitally convicted for dissection, where dissection was no part of the sentence, was a misdemeanor at com- mon law ; and in order to support an indictment for such offence, it was not necessary that there should be •direct evidence that the defendant sold the body for lucre and gain, and for the purpose of being dissected. Bex v. Cuncl'mli, D & R. N. P. C. 13. Taking Body with Intent to Sell.]— It is an indictable offence against decency to take a person's dead body with intent to sell or dispose of it for gain and profit. Rcc v. Gilles, R. & R. C. C. 336, n. 1). And see Rex v. Duffin, R. & R. C. C. 365. Master of ■Workhouse Selling Bodies — No Bequest by Relations.] — A master of a work- house, after shewing the bodies of deceased paupers in coffins to their relatives, caused the relatives to follow other coffins to the graves, and the appearance of a funeral to be gone through. The relatives had not required that the bodies should be inten-ed without anatomical examination, according to 2 & 3 Will. 4, o. 75, s. 7. The master of the workhouse then sent the bodies to Guy's Hospital for dissection, and re- ceived therefor sums of money in proj)ortion to the number of bodies sent. After dissection the bodies were bui-ied. The jury found that the master of the workhouse had caused the appear- ance of funerals to be gone through, with a view to prevent the relatives requiring the bodies to be interred without anatomical examination : — Held, that an indictment charging the master of the workhouse, in one count, with selling the bodies, in another with taking away the bodies for gain to delay the burial with intent to have them dissected, and in a third with intent to sell and dispose of them, could not be sus- tained, as the master of the workhouse had lawful possession of the bodies within 2 & 3 "Will. 4, c. 75, s. 7, and the relatives had made no request that the bodies should be interred without ana- tomical examination. Reg. v. Frist, 8 Cox, C. C. 18 ; Dears. & B. C. C. oi ; 27 L. J., M. C. 64 ; 4 Jur., N. S. 541. Bemoval of Corpse from Burying Ground, ■whether Consecrated or not.] — It is a mis- demeanor at common law to remove, without law- ful authority, a corpse from a grave in a bury- ing-ground belonging to a congregation of Pro- testant dissenters, and it is no defence to such a charge that the motive of the person removing the body was pious and laudable. Reg. v. Sliarpe, Dears. C. C. 160 ; 7 Cox, C. C. 214 ; 26 L. J., M. C. 47 ; 3 Jur., N. S. 192. The defendant was indicted for unlawfully, wilfully, and indecently digging open graves in a burial-gi-ound, and taking and removing parts of the bodies of persons buried therein, and interfering with and offering indignities to the remains of the said bodies. The evidence shewed that the defendant employed persons to excavate for building operations the burial- ground attached to a Nonconformist place_ of worship, which had been disused as a burial- ground for some time ; and the jury found that, in the course of the excavations, bones that 620 formed parts of human remains, and of the same huma,n skeleton, were dug up, but that they were not disturbed in an improper and indecent manner :— Held, that. the defendant was guilty of a misdemeanor at common law. ~ Jacobson, 14 Cox, C. C. 522. Reg. XL. SODOMY AND BESTIALITY. Statute.]— By 24 & 25 Vict. c. 100, s. 61, loJio- aueirr sliall be concicteil of tlw abominable crime of buggery, CO mm ittecL either with mankind or u'ith any animal, shall be liable, at the cliserc- tion of the court, to be kept in penal scrcitutlr for life, or for any term, not less than ten years. {Former provision, 9 Goo. 4, c. 15, s. 15.) Attempt to Commit.]— By s. 62, whosoever shall attemx>t to commit the said abominable crime, or shall be guilty of any assault loith intent to commit the same, or of any indecent assault iipon any male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be lupt in pendl servitude for any term not exceeding ten years, and not less than jive years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding tioo years, with or without hard labour. What is.] — By s. 63, whenever, upon the trial, it may be necessary to prove carnal hnowledge, it shall not be necessary to prove the actual emission of seed in order to constitute a carnal linoioledgc, but the carnal hnowledge shall be deemed complete uxion proof of penetration only. (^Previous provision, 9 Geo. 4, c. 31, s. 18.) Proof of injectio seminis, as well as penetra- tion, was essential on an indictment for sodomy. Rc.r V. Duffin, 1 East, P. C. 437 ; R. & R. C. C. 365. But since 9 Geo. 4, c. 31, s. IS, the crime is complete, if the jury is satisfied that penetration took place. Re,v v. Reehspear, 1 M. C. C. 342 ; Rex V. Co-ins, 6 C. & P. 351. To constitute the offence of sodomy, the act must be in that part where sodomy is usually committed ; for the act in a child's mouth docs not constitute the offence. Rev v. Jacobs, R. & R. C. C. 331. An unnatural connexion with an animal of the fowl kind was not sodomy, before 9 Geo. 4, c. 31, s. 15, a fowl not coming under the term "beast : " [the words of the 9 Geo. 4, c. 31, s. 15, were " any animal"] : and it was agreed clearly not to be sodomy when the fowl was so small that its private parts would not admit those of a man, and were torn in the attempt. Rex 'f. Mulreaty, 1 Russ. C. & M.-938. Indictment.] — An indictment for bestiality, which describes the animal as a certam animal called a bitch, is sufficiently certam, although the females of foxes and some other animals are called bitches, as well as the female of the dog. Rea. V. Allen, 1 C. & K. 495. , . ,, , ., Indictment against two, charging that i;hey, being persons of wicked and unnatural dispo- sitions did, in an open arid a public place un- lawfullv meet together, with the intent of committing with each other, openly, lewdly, and^ndecently in that public 'place, divers Digitized by Microsoft® 621 CEIMINAL 'LAW— Suicides and Self-Maiming. 622 nasty, wicked, filthy, lewd, beastly, unnatural, and sodomitical practices, and then and there unlawfully, wickedly, openly, lewdly, and in- decently did commit with each other, in the sight and view of divers of the liege subjects, in the said public place there passing, divers such practices as aforesaid, is bad, in arrest of judgment, for want of a real certainty. Seff. v. Jlowed, 2 G. & D. 518 ; 3 Q. B. 180 ; 6 Jur. 396. Who Guilty of.] — Where an adult and -a boy of twelve years of age commLt -sai- rfrmatural offence, the adult being the pathic may be con- victed. Beff. V. AUc7i, 1 Den. C. C. 364 ; T. & M. 5.5 ; 2 C. & K. 869 ; 3 Cox, C. C. 270 ; 18 L. J., M. C. 72 ; 13 Jur. 108. Crime committed long before Complaint made.] — ^Where a long period of time, nearly two years, lias elapsed from the time of committing the offence of bestiality before complaint is made to the justices, the case will not be peitnitted to go to the jury. Meg. v. Roi/ns, 1 Cox, C. C. lli. Evidence.] — It is not allowable to shew that the prisoner has a general disposition, or a natural inclination to commit the same kind of offence as that charged against him. Me.)! v. Cole, 1 Russ. C. & M. 939. A married woman who consents to her hus- band's committing an unnatural offence with her, is an accomplice in the felony, and, as such, her evidence requires confirmation, although consent or non-consent is quite immaterial to the offence. Reff. v. Jrllyman, 8 C. & P. 604. Verdict of Jury.] — On an indictment against a prisoner charging him with the capital offence of bestiality, the jury could not find him guilty of an assault under 7 Will. 4 & 1 Vict. c. 85, s. 11 ; but if they acquitted him of the capital charge he might be detained in custody, and indicted for a misdemeanor, in attempting to commit a felony. RcfJ. v. Eaton, 8 0. & P. 417. XLI. SUICIDES AND SELF-MAIMING. Attempt to Commit Suicide.] — An attempt to commit suicide is a misdemeanor at common law. Bc(j. V. Doody, 6 Cox, C. C. 463. Eifect of Drunkenness.] — The question for the jury is, whether the prisoner had a mind capable of contemplating the act charged, and whether he did, in fact, intend to take away his life. n. The mere fact of drunlcenness is no excuse for the crime ; but it is a material fact for the jury to consider, before coming to the conclusion that the prisoner really intended to destroy his life. 111. Where Triable.] — Suicide is not murder ■within 24 & 25 Vict. c. 100, ss. 11—15, and there- fore attempting to commit suicide is a misde- meanor triable at quarter sessions. Req. v. Burgeas, L. & C. 258 ; 9 Cox, C. C. 247 ; 32 li. J., M. C. 55 ; 7 L. T. 472 ; 11 W. R. 96. TJnsatisfactory Verdict.] — Indictment for murder. Defence, that the deceased committed suicide. Verdict guilty, the jury adding that they believed the act was committed without premeditation. The judge refused to receive such a verdict, and directed the juiy to say guilty or not guilty. Reg. v. Maluncij, 9 Cox, C. C. 6. Maiming.] — ^A party who maims himself, or procures another to do it for him, so that he pjrnay be better enabled to beg, or to prevent l.^^mseLf from being pressed for a soldier, is liable to fine or imprisonment at common law. Rex V. Wright, 1 East, P. C. 396. So is the party by whom it is effected at the other's desire. It>. XLII. THREATS AND MENACES, OBTAIN- ING MONEY, &C., Br. 1. Demanding Money, ^v., with Menaces. 2. Threatening to Aeense of Crime, or Obtain- ing hy Violenee, 626. 3. Letters Threatening to Burn or Destroy, 628. 4. Letters Threatening to Murder, 629. 5. Threatening to Sue for Penalties, 630. 6. Tlireatening to PvMish Defamatory Matter, 630 7. Indictment, 631 . 8. Trial and Beidenee, 631. 1. Demanding Money or Valuables with Menaces. By Letter.]— By 24 & 25 Vict. c. 96, s. 44, whosoercr shall .send, delircr, or iifter, or di- rectlg or indirectly cause to ie rcceired, Jauiir- ing the contents thereof, any letter or writing, demanding of any person, with meiiaees, and without any reasonable or proiahle cause, any property, chattel, money, xahbaNc security, or other valuaMe thing, shall he guilty of felony, and hcing conrieted thereof shall he liahle, at the discretion of the court, to he hept in penal servitude for life, or for any term not less than fire years (27 & 28 Vict. c. 47), or to be impri- soned for any term not exceeding two years, with or tcitJtout hard labour, and with or without solitary confinement, and, if a male under the age of si.rtecn years, with or without whipping. (^Former protision, 7 & 8 Geo. 4, c. 29, s. 8.) In other Cases.] — By s. 45, whosoever shall, with menaces or by force, demand aiiy 2>i'operty, chattel, motley, valuMhle security, or other valu- able thing of any jierson, with intent to steal the same, shall be guilty of felony, and being con- rieted thereof shall he liable, at the discretion of the court, to be hept inpe)ml servitude for the term of fire years (27 & 28 Viot. c. 47), or to he imprisoned for any term not exceeding two years, with or without hard labour, and with or irith- out solitary confinement. (_Prrriotis provision, 7 Will. 4 & 1 Vict. c. 87, ss. 7, 12.) Menaces or Threats.] — By s. 49, it shall he im- material whether the nwnaces or threats he of violence, injury, or accusation, to be caused or made by the offender, or by any other person. Letter demanding Money — Threats.] — A letter written to the prosecutors in the following terms: " Gentlemen, You say that B. O. N. will accede to the terms proposed, and send part of the Digitized by Microsoft® 623 CRIMINAL LA\\~Threats, dec. money to any place that may be named. I must have sufficient means at my disposal, or all will bo lost. I am fully assured that 20,OOOZ. will not cover the horrid catastrophe, which would not only stop your bank for a time, but perhaps tor ever, as the books would be all destroyed. The match, the most dreadful and last resource has been contemplated by the cracksman or captain of this most horrid gang, which I fervently pray to be relieved from." The letter then, after pointing out a certain pipe, behind which the money was to be deposited, proceeded, '• If, therefore, you will send a man you can con- fide in, and lodge under that pipe 250 sovereigns unseen by mortal eye, I swear by Almighty God, most solemnly, that the evil to which I have alluded shall be averted. Let the money be lodged to-morrow, Saturday morning, by half- past eleven, but not one moment sooner, and all shall be well with you ; but if I am at all deceived, in any possible way, all must fall upon yourselves :" was a letter demanding money, with menaces, within 7 & 8 Geo. 4, c. 29, s. 8, although the writer did not hold out any threat that he himself would do any mischief. Reg. v Smith, 1 Cox, C. C. 42 ; T. & M. 214 ; 1 Den. C. C. 510 ; 2 C. & K. 882 ; 19 L. J., M. C. 80 ; 14 Jur. 92. The doctrine that the threat held out must be such as would be likely to intimidate a firm man, and not merely a person of a timid disposition, must be taken to refer to the nature of the threat, and not to the nerves of the party to whom it is addressed. lb. In a threatening letter, the threat must be direct and plain. Bex v. Girdwood, 1 Leach, C. C. 142 ; 2 East, P. C. 1120. An anonymous letter stated, that the writer had overheard certain persons agree together to do an injury to the person or property of the prosecutor, to whom the letter was sent ; and that if thirty sovereigns were laid in a particular place, the writer would give such information as would frustrate the attempt : — Held, that this was not a threatening letter within 7 & 8 Geo. 4, c. 29, s. 8, although it appeared that the letter was a mere device to defraud the prosecutor of thirty sovereigns. iJc* v. PicJiford, 4 C. & P. 227. Upon an indictment for sending a letter de- manding money, with menaces, and without reasonable or probable Ciuise, it appeared that the prisoner, who had been in the prosecutor's employ as traveller, had afterwards set up in business for himself, married, and become the father of children. There was no evidence of the prosecutor having indulged in the slightest familiarity with the prisoner's wife, or of the prisoner having at any time any ground to sus- pect that such had been the case, and the prose- cutor denied it ; but the prisoner sent to him letters imputing to the prosecutor adultery with his wife, that he was the father of one of his children, stating that many a man would have sent a bullet through him, and that he was to re- fund 44?. The judge left to the jury whether the meaning of the letters was to demand a sum of money, and to menace him with adultery, or to send the child to the prosecutor's house ; and whether there was any reasonable or probable cause for the demand of the money, or for any of ^^.^... ^ ; — ,,„'«._. f„ii„ within the the charges, on all of which questions they found expected to resist, and therefore falls wat^n the against the prisoner, and found him guUty :- word " menaces ' used m the statute. Meg. . Held, that the letters implied a threat either of | Miard, 1 tox, O. o, z^. Digitized by Microsoft® 624 bodily violence, or to charge the prosecutor with adultery, or to send the child to his house, and that the conviction was right. Reg.y. Chalmers, 16 L. T. 863 ; 15 W. E. 773. A threatening letter referring, in the terms of It, to such circumstances as were plainly in- tended to denote who the writer was, and making a demand of a sum of money in controversy between him, and the prosecutor, which the latter had received, and which the former had before insisted should be accounted for to him, was not a threatening letter within 9 Geo. 1, c. 22, or 27 Geo, 2, c. 15, although the writer did not subscribe his name. Ren v. Hem inn. 2 East, P. C. 1116 ; 1 Leaoh, C. C. 445, n. Question for Jury and not for Court.] It is for the jury and not for the court to deter- mine whether or not the letter is a threatening one within the statute, and the judge will not withdraw it from their consideration, unless bv no possible construction can it be held to in- volve a threat. Reg. v. Carruthers, 1 Cox, G. 0. 138. "Writer might be Discovered.]— It is no answer to a charge of sending threatening letters, that the contents would lead the party to suspect who wrote the letter, unless it is shewn that the prisoner did not mean to conceal himself. Rex V. Wagstaff, K. & K. C. C. 398. letter — What is.] — A letter, signed by two initials, as K. B., was a letter without a name subscribed thereto within 9 Geo. 1, c. 22. Meg. V. Robinson, 2 Leach, 0. C. 749 ; 2 East, P. C. 1110. Sending Letter — What Sufficient.] — To bring the offence of sending a threatening letter within 27 Geo. 2, c. 15, the letter must have be'en sent to the person threatened, and it must have been so stated in the indictment. Rex v. Paddle, K, & E. C. C. 484. But it seems, that sending the letter to A., in order that he may deliver it to B., is a sending to B., if the letter was delivered by A. to B. Il>. It a letter threatening to burn the premises of A., but directed to B,, is left at a gate on a public highway, with the intention that it should reach as well A. as B,, that was a sending to A. within 4 Geo, 4, c, 54, s, 3, Reg. v. Grimwade, 1 Cox, C. C. 85 ; 1 Den, C, C, 30 ; 1 C, & K, 592. On an indictment on 27 Geo. 2, c. 15, for send- ing a threatening letter, the dropping a letter in a man's way, in order that he might pick it up, was a sending of it. Rex v. Wagstaff, E. & E. C. G. 398. The sending was within this statute, although the party saw the prisoner drop the letter, if the prisoner did not suppose the party knew him, and intended he should not. /*. Demanding Money with Threats or Menaces. ] — Threatening to expose a clergyman who had had criminal intercourse with a woman in a house of ill fame, in his own church and village, to his own bishop, to all the other bishops, and to the Archbishop of Canterbuiy, and also to publish his shame in the newspapers, is such a threat as a man of ordinary firmness cannot be 625 CRIMINAL 1,AW— Threats, &e. 626 Where a person demanded a shilling from the prosecutor, and, on being ref usedf became very abusive, and threatened to burn up the prose- cutor, and then proceeded to make an attempt to set fire to a stack of his : — Held, that he was liable to be indicted for demanding money by menaces, under 7 Will. 4 & 1 Vict. c. 87, s. 7. Reg. V. Taylor, 1 F. & F. 511. To constitute the offence of demanding money with menaces, under 24 & 25 Vict. c. 96, s. 45, the menace or threat mnst be of a character to produce in a reasonable man some degree of alarm or bodily fear, and such alarm must be of a nature and extent to unsettle the mind upon which it operates, and take away that free voluntary action which constitutes consent. Beg. T. Walton, 9 Cox, C. C. 268 ; L. & C. 288 ; .S2 L. J., M. C. 79 ; 9 Jur., N. S. 259 ; 7 L. T. 754 ; 11 W. B. 348. A threat to imprison a man upon a fictitious charge is a menace within 24 & 25 Vict. c. 96, s. 45. Beg. v. Bobertson, 10 Cox, C. C. 9 ; L. & C. 483 ; 34 L. J., M. C. 35 ; 11 Jnr., N. S. 96 ; 11 L. T. 386 ; 13 W. E. 101. A conviction under that section is good, al- though the money has been actually obtained. JJ. A prisoner was convicted for demanding money with menaces, with intent to steal the same. The prosecutor,, having spoken to a female in the street, at night, the prisoner, a policeman, came up, and told him he had been talking to a prostitute, and that he must go with him to Bridewell, and that he, the prosecutor, was under a penalty of U. and costs, for talking to a prostitute in the streets ; but if he would give him hs. he might go about his business. The prosecutor thereupon gave him 4«. Qd. : — Held, that the conviction was right. Ih. Without Beasonable and Probable Cause.] — The words, " without any reasonable or probable cause," in 7 & 8 Geo. 4, c. 29, s. 8, concerning sending threatening letters, apply to the money demanded, and not to the accusation threatened to be made. Beg. v. Hamilton, 1 C. & K. 212. The words, " without any reasonable and pro- bable cause," in 7 & 8 Geo. 4, c. 29, s. 8, must be taken to apply to the state of the prisoner's mind at the time of making the demand ; and the jury must look at all the circumstances for the purpose of deciding whether at that time the prisoner bon^ fide believed that she or he had reasonable cause. Beg. v. Miard, 1 Cox, C C. 22. Valuable Security— What is.]— Husband and wife were indicted under 24 & 25 Vict. c. 96, s. 48, for having by threats of violence and restraint induced the prosecutor to write and affix Ms name to the following document : — "London, July 19th, 1875. I hereby agree to pay you WOl. on the 27th inst., to prevent any action against me : " — Held, that this document was not a promissory note, but was an agreement to pay money upon a valid consideration which could be sued upon, and was therefore a valu- able security. Beg. v. John, 13 Cox, C. C 100. To constitute a valuable security within the statute an instrument need not be negotiable lb. 2. Theeatening to Accuse of Chimb, ob Obtaining by Violence. By letter.]— By 24 & 25 Vict. c. 96, s. 46, whosoei-er shall send, deliver or utter, or directly or indirectly cause to be received, hnounng the contents thereof, any letter or writiru/ accusing or threatening to accuse any other person of an/y crime punishable by law with death or penal servitude for not less than seven years, or of any assault with intent to commit any rape, or of any attempt or endearov r to commit any rape, or of any infamous crime as hereinafter defined, with a view or intent, in any of sueh cases, to extort or gain by means of such letter or writing any property, clmttel, money, valuable security or other valuable thing from any person, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of tJie court, tb be liept in penal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47),fl»' to be imprisoned for any tcrmnot exceed- ing two years, with or withont hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping ; And the abominable crime of buggery, com- mitted either with mankind or with beast, and every assault witJo intent to commit the said abominable crime, and every attempt or endea- vour to commit the said abominable crime, and every solicitation, persuasion, promise or threat offered or made to any person whereby to move or induce such person to commit or permit tlie said abominable crime, shall, be deemed to be an infamous crime within the meaning of this acti (^Former provisions, 7 & 8 Geo. 4, c. 29, s. 8, and 10 & 11 Vict. c. 66, s. 1.) In other Cases.] — By s. 47, whosoever accuse, or threaten to accuse, either the person to whom such accusation or threat shall be made or any other person, of any of the infamous or other crimes lastly hereinbefore mentioned, with the view or hitent, in any of the cases last afore- said, to extort or gain from such person so accused or threatened to be accused, or from any other person, any property, chattel, money, valu- able security, or other valuable thing, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be hept in penal servitude for life, or for any term not less tlianfive years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labour, and, if a male under the age of .^xteen years, with or without whipping. ^Previous provision, 10 & 11 Vict. c. 66, s. 2.) Inducing Person by Violence or Threats to Execute Deeds, &c., with Intent to Defraud.] — By s. 48, lohosoever, with intent to defraud or injure any other person, shall, by any unlawful violence to or restraint of, or threat of violence to or restraint of, the person of another, or by accusing or threatening to accuse any person of any treason, felony, or infamous crime as herein- before defined, compel or induce any person to execute, malic, accept, iiidorsc, alter or destroy, the lohole or any part of any valuable security, or to write, impress or affix his name or tile name of any other person, or of any. company, firm or co-partnership, or the seal of any body corporate, company or society, upon or to any Digitized by Microsoft® 627 CEIMINAL LAW— Threats, dc. paper oi- parchment, in order that the same may be afterwards made or converted into, or used or dealt with as a valuable seeurity, shall be ijuilty of felony, and being convicted tliereof -shall be liable, at the discretion of the court, to be liept in penal servitude for life, or for any term not less than fire years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceed- ing two years, with or without hard labour, and with or without solitary confinement. By s. 49, it shall be immaterial whether the metiaces or threats hereinbefore mentioned be of violence, injury or accusation, to be caused or made by the offender, or by any other person. Guilt or Innocence Immaterial.]— On the trial of an indictment for threatening to accuse of an infamous crime in order to extort money, tlie guilt or innocence of the party threatening is quite immaterial. Reg. v. Oi-achnell, 10 Cox, C. C. 408. Whether the crime of which the prisoner was accused by the prosecutor was actually com- mitted is not material in this, that the prisoner is equally guilty if he intended by such accusa- tion to extort money. Ren. v. Richards, 11 Cox, C. C. 43. But it is material in considering the question whether, under the circumstances of the case, the intention of the prisoner was to extort money, or merely to compound a felony. lb. Libellous Matter.] — On an indictment for threatening to publish certain matter with intent to extort money, it is not necessary that the matter should be libellous. Reg. v. Coghlan, 4 F. & F. 316. Intent may be Implied or Inferred.] — An intent to extort money may be implied from the circumstances, and does not require an express demand of money. lb. But,, if it appears that the object is to compel the delivery of accounts of moneys honestly be- lieved to be due and owing, there is no evidence of the intent, lb. A prisoner was indicted under 7 & 8 Geo. 4, o. 29, s. 8, in a first count, for feloniously accusing A. of a certain infamous crime, that is to say, of having made to the prisoner a certain solicitation, -whereby to move and induce the prisoner to commit with him, the crime of sodomy, with a view to extort and gain money from him ; second count, charging the same ofEence some- ivhat differently :— Held, that the evidence was not sufficient to prove the intent laid. Reg. v. Middleditch, 1 Den. C. C. 92. Where a prisoner is indicted for feloniously sending a letter, threatening to accuse of an infamous crime, with intent to extort money, •both the threat and the intent may be inferred, even against the declaration of the prisoner at the time, and in the absence of express proof, from the letter itself, from his previous and con- temporaneous, and even from his subsequent con- duct and expressions to third parties. Reg. v. Menage, 3 F. & F. 310. Threat to Accuse.]— The threatening to accuse, under 7 & 8 Geo. 4, c. 29, s. 8, need not be a threat to accuse before a judicial tribunal ; ,a threat to charge before any third person enough. Rex v. Robinson, 2 M. & Bob, Lewin, C. C. 273. IS 14; 2 628 Sending a letter threatening to accuse the prosecutor of having made overtures to the prisoner to commit sodomy with him, did not threaten to charge such an infamous crime as to be within 4 Geo. 4, c. 54, s. 3. Rex v. Siek- man, 1 M. C. C. 34. Where it was proved that a prisoner, to obtain moneys, said to the prosecutor, " If you do not assist me, I will say you took indecent liberties with me some time ago :" — Held, not sufficient to sustain a count which charged that he threatened to accuse the prosecutor of having attempted and endeavoured to commit with him the abominable crime. Reg. v. Jforton, 8 C. & P. 671. An indictment on 30 Geo. 2, c. 24, for sending a threatening letter, intended to extort and gain money, could not be supported by shewing a, letter threatening to accuse the prosecutor of an unnatural crime, if he did not give up a certain bill drawn by the prisoner, of which the pro- secutor was the holder. Rex v. Major, 2 East, P. C. 1118 : 2 Leach, C. C. 772. A person threatening A.'s father that he would accuse A. of, having committed an abominable ofEence upon a mare for the purpose of putting off the mare, and forcing the father, under teiror of the threatened charge, to buy and pay for her at the prisoner's price, is guilty of threatening to accuse with intent to extort money, within 24 & 25 Vict. c. 96, s. 47. Reg. v. Redman, 1 L. E., C. C. 12 ; 35 L. J., M. C. 83 ; 11 Jur., N. S. 960 ; 13 L. T. 303 ; 14 W. R. 56 ; 10 Cox, C. C. 159. Question for Jury.] — The prisoner was proved to have made the accusation in these words, " I charge this man with indecently assaulting me :" — Held, that it was a question for the jury — taking into consideration the prisoner's conduct throughout the transaction — whether by those words he did not mean to allege that the pro- secutor had solicited him to the commission of an unnatural ofEence. Reg. v. Cooper, 3 Cox, C. C. 547. Where the charge made by the prisoners was one specifically of an indecent assault : — Held, that it was for the jury to take into their con- sideration ■ not only the charge itself, but the conduct of the prisoners generally, for the pur- pose of deciding what was the nature of the accusation they intended to prefer. Reg. v. Braynell, 3 Cox, C. C. 402. 3. Lbttbes Thebatening to Buen oe Desteoy. statute. J— By 24 & 25 Vict. c. 97, s. 50, whosoever sliall send,deliver or utter,or directly orindirectly cause to be reecii}ed,hnoiving the contents thereof, any letter or writing threaieimig to burn or de- stroy any house, barn or other buihling, or any rich or stack of grain, hay or straiv, or other agricultural produce, or any grain, hay or straw or other agricultural produce, in or under any building, or any ship or vrssi'l, or to hill, maim or wound any cattle, shall be guilty of felony, and, being convicted thereof, shall be liable, tit the discretion of the court, to be, hept in penal servitude for any term not exceeding ten years and not less than five years (27 &28 Vict. c. 47), or to be imprisoned for any term- not exceeding^ two years, with or without hard labour, and Digitized by Microsoft® wither without solitary confinement, and, if a y 2 629 CEIMINAL 'LAW— Threats, &c. 630 mall- under the age of sixtee7i yearn, with or with (lilt wliipping. (^Former provitinns 4 Geo. 4. c. 54, s. 3, and 10 & 11 Vict. c. 66, s. 1.) What Property.] — Sending a letter threatemng to burn standing com, was not an offence within 4 Geo. 4, c. 54, s. 3. Ueg.^'. Hill, 5 Cox, C. C. 233. Whose House.] — An indictment on 4 Geo. 4, c. 54, s. 3, charging that the prisoner sent a letter to T. L., threatening to bum the house of J. B., was bad — as the threat must be to the owner of the property ; and if the letter was sent to T. L. with intent that it should reach J. E., and did reach him, it should have been charged in the indictment as sent to J. E. Seg. t. Janeg, 2 C. & K. 398 ; 1 Den. C. C. 218 ; 1 Cox, C. C. 67. An indictment for sending a threatening letter stated that one E. had lately built and completed a house ; and then charged that the prisoner feloniously sent to one L. a certain letter, threatening to burn the house so built by the said E. Upon objection taken that the indict- ment ought to hare charged a sending to E. : — Held, that the indictment was bad on that ground. It)-g. v. Jones, 2 Cox, C. C. 434. A conviction on 27 Geo. 2, c. 15, for sending a letter to the prosecutor, threatening " to set fire to his mill, and likewise to do all the public injury they were able to him, in all his farms and seteres," was wrong, when the prosecutor had not then any mill to which the threat of burning would apply (having parted with it three years before) ; and the threat as to the farm, &:c., not necessarily implying a bm-ning. Hex v. Jepson, 2 East, P. C. 1115. Sending a letter to A. threatening to bum a house of which he was owner, but let by him to, and occupied by, a tenant, was not an offence within i Geo. 4, c. 54, 3. 3. JRi'g. v. SiiriHdge, 2 M. & Eob. 296. Indictment for sending a threatening letter under 4 Geo. 4, c. 54, s. 3. First count charged G. with sending to E., and threatening to burn E.'s houses. It was proved that E. had only a reversionai7 interest in these houses. Qnasre, whether G. could be convicted on that count. JReg. V. Grimwadc, \ Den. C. C. 30 ; 1 C. & K. 592 ; 1 Cox, C. C. 85. 4. Letters Threatening to Murder. Statute.]— By 24 & 25 Vict. c. 100, s. 16, wlw- xiicrrr sliall nial'iHovsly xrnd. (Irlircy or litter, or diriTtlij or indirectly cavse to be rcceired, Itnoic- ■ing the rontcnts thereof, any letter or writini/ threatening to hill or murder any 2>er.ion, .ihall lie gvilty of felony, and ieing convicted thereof, ■ihall he liable, at the discretion of the cmirt, to lie hcpt in penal serrititde for any term not «■- reeding tm years, and not le.s-s than Jirr years (27 & 28 Vict. c. 47), or to be imprisoned for any trrm not exceeding two years, ivith or without hard labour, and with or without solitary con- finement, and, if a male under the age of sixteen i/riirx, tcith or without whipping. (^Former jjro- ■risions. 4 Geo. 4, c. 54. s. 3, and 10 & 11 Vict c {■.6, s. 1.) ludiotment.]— A letter signed, "lam your cut- throat," and stating, that if the person to whom it was sent had his deserts, he would not live the week out ; and that the writer would be with him shortly, and if he made light of it. the writer would make light of him and his, so plainly conveys a threat to kill and murder, as to render it unnecessary to insert either innuendoes or prefatory allegations in the indictment to explain its "meaning. Rex v. Boucher. 4 C. & P. 562. Uttering — ^What is.] — The intentionally put- ting a threatening letter in a place where it is likely to be seen and read by the party to whom it is directed, or to be found by some other person, and which is in fact so found and conveyed to the party, was an uttering of the letter within 10 & 11 Vict. c. 66. ^. 1. Reg. v. Jones. 5 Cox, C. C. 226. 5. Threatening to Sue foe Penalties. When Indictment Sustainable.] — Threatening by letter, or otherwise, to put in motion a prose- cution by a public officer, to recover penalties for selling Fryer's Balsam without a stamp (which by 42 Geo. 3, u. 36, was prohibited to be vended without a stamped label), for the purpose of obtaining money to stay the prosecution, is not such a threat as a firm and prudent man may not be expected to resist, and therefore is not in itself an indictable offence at common law, although it is alleged that the money was obtained ; no refer- ence being made to any statute which prohibits such attempt. Rex v. Smttherton, 6 East, 126 ; 2 Smith, 305. But it seems that such an offence is indictable upon 18 Eliz. c. 5, s. 4. for regulating common informers, which prohibits the taking of money, without consent of court, under colour of process, or without process, from any person upon pre- tence of any offence against a penal law. lb. But no indictment for any attempt to commit such a statutable misdemeanor can be sustained as a misdemeanor at common law, without at least bringing the offence intended within, and laying it to be against, the statute. lb. Though if the party so threatened had been alleged to be guilty " of the offence imputed within the statute imposing the duty and creating the penalty, such an attempt to com- pound and stifle a public prosecution for the sake of private lucre, in fraud of the revenue, and against the policy of the statute, which gives the penalty as auxiliary to the revenue, and in furtherance of public justice for example's sake, mi|;ht also, upon general principles, have been deemed a sufficient ground to susta,in the indict- ment at common law. lb. 6. Threatening to Publish Defamatory Matter. Statute.]— By 6 & 7 Vict. c. 96, s. 3, if any person shall publish, or threaten to publish. any libel upon any other person, or shall directly or indirectly threatni to print or publish, or shall directly or indirectly projwsc to abstain from printing or publishing, or shall directly or indirectly offer to prercnt the printing or publishing of any matter or thing tmioliing any other person, with intent to extort any money or security for money, or any raluable thing from such or any other per.wn, or with intent to induce any person to confer or procure for any person any appointment or office of profit or trust, every s^ich\ offender, on being convicted thereof . shall be liable to be impiisoned, %oith or Digitized by Microsoft® 631 CRIMINAL luAW— Threats, dc. without hard labour, in the common gaol or house of correction for any term not exceeding three years: provided always, that nothing herein contained shall in any manner alter or affect any law noiv (1843) in force in respect of the sending or delicery of threatening letters or lori^' — Evidence.] — Counts under this section, charging the defendants with unlawfully offering to pre- vent_ the publishing, and with threatening to publish certain matters touching the prosecutor, with intent to extort money, are not supported by evidence, that they attempted to obtain the money by leading the prosecutor to believe that an information would be laid against him by one G., for an ofEence relating to the post-horse duties, and that they had the means of preventing the proceedings and would prevent it on being paid a sum of money, lleg. v. Yates, 6 Cox, C. C. 4il. 7. Indictment. Persons Indictable.] — Where a wife wrote a threatening letter, and the husband carried it to the party threatened : — Held, that the husband, though privy to the writing, was not within 9 Geo. 1, c. 22, and 27 Geo. 2, c. 15, nor could the wife alone be convicted unless she wrote and sent it without the husband who delivered it being privy to the contents. Rex v. Hammond, 2 East, P. C. 1119 ; 1 Leach, C. C. 444. Form, of.] — ^An indictment charging that a prisoner " did feloniously and maliciously, with intent to extort money, charge and accuse A. with having committed the homble and detest- able crime, and feloniously, &c., menace and threaten to prosecute the said A.," was not good under 4 Geo. 4, c. 54, s. 3. Rex v. Aigood, 2 C. & P. 436. By whom Offence committed.] — An indictment on i Geo. 4, c. 54, s. 5, for demanding money, must have distinctly shewn by whom it was demanded. Rex v. DuaJdey, 1 M. C. C. 90. Who Threatened.] — And an indictment on the same statute by threatening to accuse, &c., must have positively shewn who was threatened. lb. To whom Security belonged.] — On an indict- ment for threatening to accuse of an infamous crime, with intent to extort aVertain security for money, it is not necessary to aver to whom the ■security belonged. Reg. v. Tiddemaii, 4 Cox, C. C. 387. Letter to he Set out.]— An indictment for sending a threatening letter must set out the letter. Rex v. Lloyd, 2 East, P. C. 1122 ; S. P., Reg. V. Hunter, 2 Leach, C. C. 631. 8. Trial and Evidence. Practice— Venue.]— The ofEence of sending a threatening letter may be laid in the county where it is delivered by the post to the pro- secutor. Rex V. Esser, 2 East, P. C. 1125 ; S. P., Rex V. Girdwood, 2 Bast, P. C. 1120 ; 1 Leach, C. 0. 142. Inspection of Letter.]— If a party is .indicted for sending a threatening letter, the Digitized by Microsoft® 632 court will, on motion of the prisoner's oounpel, as soon, as the bill is found, order that the letter be deposited with the officer of the court, that the prisoner's witnesses may inspect it. Rex v. Harrw, 6 C. & P. 105. Evidence— To shew Guilt of Prosecutor,]— The prosecutor may be cross-examined with a view to shew that he is really guilty of the ofCeuce imputed to him, yet no evidence will be allowed to be given, even in cross-examination, by another witness, to prove that the prosecutor is really guilty. Reg. v. Crachnell, 10 Cox, C. C. 408. Knowledge of Contents of letter.]— The bare delivery of a letter containing threats, though sealed, is evidence of a knowledge of its contents. Rcr v. Girdwood, 1 Leach, C. C. 142 ; 2 East, P. C. 1120. Proof of several letters.] — Indictment, with three counts for three separate letters. It was proposed to prove the sending of all three : — ^Held, that evidence of one only was admissible. Reg. V. Ward, 10 Cox, C. C. 42. Of sending Letter.] — Affixing a threaten- ing letter on a gate in a public highway, is some evidence to go to the jury of a sending thereof. Reg, V. Williams, 1 Cox, C. C. 16. A prisoner was indicted for sending a threaten- ing letter. The only evidence against him was his own statement, that he should never have written it but for W. G. : — Held, not snflicient. Rex V. Howe, 7 C. & P. 268. Letter improperly Addressed.] — When there is no person in existence of the precise name which the letter bears as its address, it is a question for the jury whether the party into whose hands it falls was really the one for whom it was intended. Reg. erpetual hj 57 Geo. 3, o. 6) ; 5 ^' 6 Vict. c. 51 ; 11 4' 12 Viet. c. 12. 25 Udw. 3, St. 5, c. 2, xoas extended to Ireland iy Poyning's Act, 10 Hen. 7, a. 10, iut 36 Geo. 3, c. 7, or 57 Geo. 3, v. 6, did not extend to Ire- land. See O'Brien v. Reg., 3 Cox, C. C. 360 ; 2 H. L. Cas. 465 ; hit now extended to Ireland iy 11 ^ 12 Vict. c. 12, *. 2. Overt Acts — Discharging Fistol at Sove- reign.] — If in an indictment for treason it is stated as an overt act, that the prisoner dis- charged at the sovereign a pistol, loaded with powder and a certain bullet, and thereby made a direct attempt upon the life of the sovereign ; the jury must be satisfied that the pistol was a loaded pistol : that is, there was something in it beyond the powder and wadding ; but it seems it is not necessary for them to be satisfied that it was actually loaded with that which is generally known by the name of a bullet. Beg. v. Oxford, 9 C. & P. 525. See 5 & 6 Vict. c. 51, s. 2. Levying War.] — To constitute the trea- son of levying war against her Majesty within the realm, there must be an insurrection, there must be force accompanying that insurrection, and it must be for an object of a general nature ; and if a person acts as a leader of an armed body, who enters a town, and their object is neither to take the town nor attack the military, but merely to make a demonstration to the magistracy of the strength of their party, either to procure the liberation of certain prisoners convicted of some political offences, or to procure for those pri soners some mitigation of their punishment, this,- though an aggravated misdemeanor, is not high treason. Beg. v. Frost, 9 C. & P. 129. Joining or Continuing with Bebels.] — An apprehension, though ever so well grounded, of having property wasted or destroyed, or of suffering any other mischief not endangering the person, will afford no excuse for joining or con- tinuing with rebels. Bex v. M- Growther, 1 Bast, P. C. 71. But it is otherwise if the party joins from fear of death or by compulsion. Bex v. Gordon, 1 East, P. C. 71. Piracy.] — An overt act of piracy only may shew a traitorous intent against the king, in treason for adhering to the king's enemies, if the indictment alleges the intent to be to seize the ships of the king as well as his subjects. Bean V. Mans, 1 East, P. C. 80 ; 2 East, P. C. 798. Adhering to King's Enemies.] — Indict- ment for high treason in compassing the king's death and adheriflg to his enemies. Overt act, conspiring with others to send intelligence to the enemy concerning the disposition of the king's subjects in case of an invasion. Any in- telligence sent to the enemy in order to serve them in shaping their attack or defence, though the purport of it may be to dissuade them from an invasion, is high treason. Bex v. Sto?ie, 6 T. R. 527 ; 1 East, P. C. 79, 99. Though the intelligence is intercepted. Bex V. Hensey, 2 Ld. Ken. 366 ; 1 Burr. 642. To compel Eepeal of Law.]— It is high treason to attempt, by intimidation and violence, to compel the repeal of a law. Bex v. Gordon (Lord George^, 2 Dougl. 590. By whom Committed — Foreigner Besident in England.] — It will be treason in a foreigner resident here, or who is himself abroad, if his family resides here, to aid even his own country- Digitized by Microsoft® 635 CEIMINAL -LA^— Treason and Treason-Felony. men m acts or purposes of hostility, whether his own sovereign is at enmity or peace with ours, for it is a breach of the local allegiance due from him. Rex v. Delamotte, I East, P. 0. 53. b. Indictment, Plractice, and Evidence. 1 Edto. 6, r. 12, «. 22 ; 5 <^' 6 35 Men. 8, c. 2 ; Bdw. 6, c. 11, s. \2;\^-2P. 4- J{. c. 10, si. 7 and 8 ; 7 <5- 8 Will, i, r.^i■,^ Anne, e. 21, «. 5 ; 6 Geo. 3, c. 53, «. 3 ; 30 Geo. 3, c. 48 ; 39 * 40 Geo. 3, c. 93 ; 54 Geo. 3, c. 146 ; (i Geo. i, 0. 50, s. 21 ; 5 .5- 6 Viet. e. 51, i. 1. Indictment.] — Semble, that counts charging a party with high treason in "compassing, &c., the maim and wounding" of his majesty, and with "compassing, &c., the wounding" of his majesty, are bad. Mc.v v. Collim, 5 C. & P. 305. Copy of Indietment.]— An allegation that the prisoner indicted for high treason has not had a ■ true copy of the indictment is not matter for a plea, but only a ground for an application for a postponement of the trial. Reg. y. JBnrke, 10 Cox, C. C. 519. The copy of the indictment furnished to the prisoner need not contain a copy of the indorse- ment of the finding of the grand jury in order to satisfy the statute. li. A pereon indicted for high treason is entitled undei 7 Anne, c. 21, s. 14, to a copy of the indictment ten days before his arraignment. Rex V. Gordon (_Lord George'), 2 Dougl. 591. List of Witnesses.] — ^A person indicted for high treason is entitled, under 7 Anne, c. 21, s. 14, to a list of the witnesses for the crown ten days before his arraignment. Re.v v. Gordon (Lord George), 2 Dougl. 591. On a trial for high treason, it was objected, after the jury had been charged with the prisoner, but before the first witness was ex- amined, that the jirisoner had no list of witnesses delivered to him. The indictment was found on the 11th of December ; on the 12th of December a copy of it and of the panel of the jurors in- tended to be returned by the sheriflE, were delivered to the prisoner ; and on the 17th of December the list of witnesses was delivered to him. The prisoner was arraigned on the 81st of December. The objection to the delivery of the list of witnesses was, that the copy of the indict- ment and the list of jurors and witnesses should have been all delivered at the same time simul et semel : — Held, that the doliveiy of the list of witnesses was not a good delivery in point of law, but that the objection to the delivery of the list of witnesses was not made in due time ; and that, if the objection had been made in due time, the effect of it would have been a postponement of the trial, in order to give time for a proper delivery of the list. Rn/. v. Frost, 9 C. & P. 163 ; 2 M. C. C. 140 ; 4 Jur. 53. Description of Witnesses in Lists.] — Any ob- jection to the description of the witness in the list of witnesses must be taken on the voir dire, and comes too late after the witness is sworn in chief. Reg. v. Frost, 9 C. & P. 183 ; 2 M. C. C. 140 ; 4 Jur. 53. The list may properly describe a party as lately of such a place. Re.)^ v. Watson, 2 Stark. 116. Digitized by Microsoft® 636 But if, upon the examination of the witness upon the voir dire, it appears that he has had a difierent and later place of residence, the descrip- tion will not be sulficient. Ih. A witness was described in the list of witnesses ^^ XT ■ ' 2^ ^'^^ P^"''^ °^ ^- ^-^ in the borough of H., m the county of M., labourer." N. was a place with 6,000 inhabitants, and formed only a part of the parish of S. W., which was a large parish, extending beyond the borough of N. :— Held, sufficient, and that it was neither a misde- scription nor too general. Reg. v. Frost, 9 C. & A witness was described in the list of witnesses as "of Cross-y-Cyloy, in the parish of L." The witness stated, that he lived near Cross-y-Clog (which means Cross of the Cock), and that there were twt) public-houses, each so called ; and that ' his house was between them, and sixty yards from each. It was also proved, that there was a cluster of houses at this place, and that a witness had directed invoices to one of them, as Cross-y- Clog : — Held, that the witness was not properly described. Reg. v. Ih-ost, 9 C. & P. 150. A witness was described in the list of wit- nesses as " M. J., of P., in the parish of St. W., in the county of M., sometimes abiding at the house of his son, J. J., in the parish of B., in the said county." The witness occupied a house at P., in the parish of St. W., in which his wife re- sided, he going to work with his son, and return- ing to his house at P. about three days in every two months. The son's house was in the parish of M., and not in the parish of B. : — Held, that if the witness had been described as of P., in the parish of St. W., that would have been suffi- cient ; but that, as the latter part of the descrip- tion was incorrect, it vitiated the whole. Reg. V. Frost, 9 C. & P. 152. Juries and Challenges.] — If a true bill is found against a person for high treason, the judge will, on the application of the counsel for the crown, order the sheriff to furnish the solicitor to the treasury with a list of the persons to be summoned on the JU17, that a copy of it may be delivered to the prisoner. Rex v. Collins, 5 C. & P. 305. A person indicted for high treason is entitled under 7 Anne, c. 21, s. 14, to a list of the jury- men who are to be returned on the panel ten days before his arraignment. Rex v. Gordon (Jjord George), 2 Dougl. 591. Where the prisoner's counsel asked that the names of the jurors should be taken from a ballot- box, instead of being called over in the.order in which they stood in the panel, which was alpha- betical, and this proposition was acquiesced in by the attorney-general, the court allowed the names of the jurors to be taken from a ballot- box ; but if the attorney-general had objected, the court would not have granted the applica- tion. Reg. V. Frost, 9 C. & P. 136. Amendment of Panels.]— The juiy panel, in cases of treason, may be amended by correcting mistakes and inserting a description of the pro- fessions of the jurors. Rex v. Hardy, 1 East, P. C. 113. Evidence 1— As to evidence of treason, see Rex V. Hone Toohe, 1 East, P. C. 60, 69; 2 Leach, C. C. 823. 637 CRIMINAL LAW — Treason and Treason-Felony. To prove Conspiracy.] — In a case of high treason or conspiracy, the prosecutor may either prove the conspiracy which renders the acts of the co-conspirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspiracy ; therefore, in a case of high treason, where it appeared that a party had met, which was joined by the prisoner on the next day, the counsel for the prosecution was allowed to ask what directions one of the party gave on the day of their meeting, as to where they were to go, and for what purpose. Iteg. v. I'rost, 9 C. & P. 149. In high treason, the overt act of one is the ovsrt act of all ; and therefore a common design must, in such cases, precede the proof of indi- vidual acts. Seg, v. Brittain, 3 Cox, C. C. 77. Onus of Proof.] — The prisoner is not bound of necessity to shew what was the object or meaning of the acts done by him. The offence must be made out by those who make the charge. Reg. V. Frost, 9 C. & P. 129. What Admissible.] — A letter sent by one of the conspirators, in pursuance of the common design, with a view of reaching the enemy, is evidence against all engaged in the same con- spiracy. Hex V. Stone, 6 T. E. 527 ; 1 East, P. C. 79, 99. A paper found in the possession of one of the conspirators, containing intelligence proved to have been collected by the prisoner, which paper was in the handwriting of the prisoner's clerk, is evidence against the prisoner. Aliter, of a paper in the same handwriting not appearing to have any connexion with the prisoner. lb. An alien was indicted for high treason, in com- passing to depose the Queen, and in levying war against the Queen. The material overt acts of compassing to depose the Queen were — 1st, con- spiring at Dublin, to raise rebellion and levy war within the realm, and 2ndly, levying war within the realm at various places. There was evidence that he was a member of the directing body of a treasonable conspiracy, having for its object the overthrow of the Queen's government, and the establishment of a republic in Ireland. There was also evidence that he l\ad planned an attack upon the castle of Chester, in England, for the purpose of seizing arms there, and conveying them to Ireland, with the view of raising an insurrection there. Evidence was also given that the directing body had, in February, 1867, given orders for a rising in Ireland. On the 23rd February, 1867, he was arrested while attempting to land iu Dublin. On the 5th March. 1867, he being in custody, an insurrectionary movement, the result of the commands of the directing body of the conspiracy, broke out in several places in Ireland, and various acts of war were committed : — Held, that those acts of war were receivable against him on the indictment in England. Rea. V. M'Cafferty, 1 Ir. E., C. L. 363 ; 10 Cox, C. C. 603 ; 15 W. E. 1022. Number of Witnesses.]— The rule as to the necessity of having two witnesses, in cases of high treason, considered and discussed. lb. If one overt act is proved by one witness in the county in which the trial is had, which gives the grand jury jurisdiction to inquire, another overt act of the same species of treason, proved by another witness in a different county, will make 638 two witnesses within 7 & 8 Will. 3, c. 3. Rex v. JelUas, 1 East, P. C. 130. A conviction of high treason may be upon the evidence of one witness only, in all oases where there is no corruption of blood. Rex v. Oaluuiaii, 1 Leach, C. C. 42 ; 1 East, P. C. 129. In Eeply.] — Evidence had been given for the prosecution, that an armed party had attacked the W. hotel, in which the magistrates and troops were stationed. To shew that the intention of the party was not treasonable, but was merely to procure the release of certain prisoners, a witness was called to prove, that, on the party arriving at the hotel gate, they were asked by a special constable what they wanted, when one of them answered, " Surrenaer up your prisoner's." It was proposed to call evidence in reply, that that was not said at the hotel gate : — Held, that this was properly evidence in reply. R™. v. Frost, 9 C. &P. 1.59. Trial — Beading over Indictment.] — In charg- ing a jury with a prisoner, it is not necessary to read the whole of the indictment at length to the jury, unless the prisoner or his counsel wish it ; it is sufficient for the clerk of the crown to state the subject of it. Reg. v. Frost, 9 C. & P. 138. Prisoner Addressing Jury.]— The prisoner has a right to address the jury, in addition to the speeches of his counsel. Rex v. Collins, 5 C. & P. 305. Beply when Evidence in Beply allowed.] — Where the crown gave evidence in reply, the witness in reply was called before the second counsel for the prisoner addressed the jury, and the leading counsel for the prisoner commented on the evidence in reply, also before the second counsel for the prisoner addressed the iury. ife-n V. Frost, 9 C. & P. 160. Bestoration of Honey and Documents.] The court will not order that money taken fi-om a prisoner charged with high treason be restored to him, unless it is made to appear to the court that the money forms no part of the proof against him. Reg. v. Frost, 9 C. & P. 132. ^ The court will not order that papers taken from his house shall be restored to him ; neither will they order that he shall be furnished with copies of them. Reg. v. Frost, 9 C. & P. 133. Counsel.]— The only counsel who are recognized by the court, are the two counsel who are assigned by the court, and the court will not take notice of any assistant counsel. Rea v Frost, 9 C. & P. 135. " ' Counsel may be assigned for a prisoner charged with high treason, upon an application made to the clerk of the crown, during an adjoui-nment of the commissioners, between the finding of the indictment and the arraignment, or the prisoner will be allowed, if he wishes it, to delay namino- his counsel till he is brought up to be tried. lb. ^^Copies of Depositions.]- Prisoners will be allowed copies of the depositions against them, on the terms prescribed by 6 & 7 Will 4 c 114 s. 'i. lb. • ' • > Solicitors.]— A person charged with high Digitized by Microsoft® 639 CEIMINAL l^K^-Tremon and Treason-Felony. treason cannot be allowed by the court before to be destroved as wpII which he IS tried to have two attorneys, unless ~^-~ -^ °^'''^' ^ "^"^^ they are partuera. lb. . Daring a trial for high treason, which was expected to last several days, the court ordered that the prisoner's attorney should have access to him every day, after the rising of the court, till 10 P.M., and before the sitting of the court, from 7 A.M., although it was stated by the governor of the prison that the prison was not open for any other purpose till half-past 7 A.M.. and was shut for the night at 9 p.m. lb. 640 2. Theason-Felony. Indietmeat.]— The 11 & 12 Vict. c. 12,declare3 it to be felony to "compass, imagine, invent, devise and intend to deprive and depose our lady the Queen," &c. &c. In support of the charge of this ofEence under the statute, it is sufficient to allege as overt acts that the defendants conspired, combined, confederated and agreed to commit the ofEence. Mulealirj v. Ilea, (in error'), 3 L. E., H. L. 306. ■> J ^ ^' The allegation, in one count, of several different overt acts of felony is not objectionable under 11 & 12 Vict. c. 12. lb. General Verdict.]— Where there are several overt acts charged in a count, and judgment is given on a general verdict of guilty oa that count, such judgment will be sustained, though some of the matters alleged as overt acts may be improperly so alleged, provided that the count contains allegations of overt acts that are sufficient and are sufficiently alleged. lb. Svidence to support Conviction.] — Under 11 & 12 Vict. c. 12, s. 3, it is sufficient evidence to support a conviction to shew that the prisoner was a member of a foreign society having for its object the several treasonable objects set out in the several counts of the indictment, and also the existence of a domestic association of similar denomination, and connected with that abroad ; and then to prove overt acts done within the venue, in promotion of these objects, by members of the association, and it is not necessary to prove any act of the prisoner himself done in Ireland, or even that he was in Ireland during any part of the period that the associations were shewn to exist either at home or abroad^ Iteg. V. Meaney, 10 Cox, C. C. 506 ; 1 Ir " 15 W. K. 1082. , K.,^C. L. 500 Direction to Jury.] — Secret clubs were formed in America, branches of a society called the Fenian Brotherhood, whose object was said to be to procure " the freedom of Ireland by force alone." The prisoners, members of these clubs, came to England provided with funds, their intent being to destroy public buildings by nitro- glycerine and other explosives. One of the prisoners appeared to be the director of the movements .of the others, another was detected in manufacturing nitro-glycerine in large quantities at Birmingham, and others were employed in the removal thereof, when manu- factured, to London under the director's superintendence. There was evidence that the House of Commons and Scotland-yard office of the detective police were pointed out as places Digitized by Microsoft® . . , — -u that the nitro- glycerine was to be used for destroying other public buildings. By 1] & 12 Vict. c. 12, s. 3 (Treason-Felony Act) : " If any person shall, withm the United Kingdom or without, compas-s, imagine, invent, devise, or intend to deprive or depose our most gracious Lady the Queen, her heu's or successors, from the style, honour, or royal name of the Imperial Crown of the United Kingdom or any other of her Majesty's dominions and countries, or to levy war against her Majesty, her heu-s _ or successors, within any part of the United Kingdom, in order by force or constraint to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon, or in order to intimi- date or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United King- dom or any other of her Majesty's dominions or countries under the obeisance of her Majesty, her heirs or successors, and such compassing, imaginations, inventions, devices or intentions, or any of them, shall express, utter, or declare by publishing any printing, or writing, or by open and advised speaking, or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable to be transported for life, or not less than seven years, or to be imprisoned for any- term not exceeding two years, with or without hard labour." The prisoners were indicted under the above act for compassing, devising, and intending to deprive and depose the Queen from the style, honour, or royal name of the Imperial Crown of the United Kingdom, for levying war against her to compel her to change her counsels, and to intimidate and overawe the Houses of Parliament. The jury were directed (1) that if they thought that one or more of the prisoners did compass, devise, or intend to force the Queen to change her counsels and to overawe ther' Houses of Parliament by violent measures, directed either against the property of the Queen, the public property, or the lives of the Queen's subjects, and not with the view of repaying any private spite or enmity against any particular subjects of the Queen, it would be a levying of war against the Queen within the meaning of the first count of the indictment ; that it was not the less compassing, and intending levying war, because by the progress of science two or three men could do now what could not have been done years ago except by a large number of persons ; that the question was, was there proof that the prisoners did what they did with the intention of depriving and deposing the Queen from the style of the Imperial Crown of the United Kingdom, or with the intention of separating Ireland from the Crown of England and establishing an independent republic. (2) That if what the prisoners did was done to com- pel her Majesty, or her Ministers, by force to change the present constitution, and to alter the relations between England and Ireland, or even to set up a separate parliament in Ireland, it would be within the second count of the indict- ment. (3) That if what the prisoners did was done for the puipose of intimidating and over- awing both or either Houses of Parliament so as to frighten them into doing what otherwise they would not have done, it would be within the third count. Beg. v. Gallagher, 15 Cox, C. C. 291. 641 CEIMINAL I.AW— Jurisdiction. 642 XLIV. TEEASUEB TEOVB. Indictment,] — An indictment for concealing treasure trove, averring that the Queen is en- titled to the treasure, is good without any aver- ment of any inquisition before the coroner, or office found as to the title of the Queen ; and a conviction upon such an indictment is good without any evidence as to such matters, lieg. V. Toole, 2 Ir. R., C. L. 36 ; 10 Cox, C. C. 75 ; 16 W. E. 439. In an indictment for concealing treasure trove from the crown, it is not neoessaiy to aver that the pereon concealed it fraudulently. The words " unlawfully, wilfully, and knowingly," are suffi- cient. Hei/. V. Thomas, L. & C. 313 ; 33 L. J., M. C. 22 ; 9 L. T. 488 ; 12 W. E. 108. Evidence.] — ^A., in ploughing, found lai-ge ri^gs of old gold of considerable value and sold them for brass to B. for os. Gel., saying where he found it. B. afterwards found out that they were gold, and offered them to a jeweller for sale as gold. Then B. said he had sold them to C. for brass. Then B. and C. were at a bank together, depositing part of the proceeds for which C. had sold the gold rings : — Held, that there was evidence to support a conviction of both B. and C. for knowingly concealing treasure trove from the crown. Ih. 0. PROCEDURE AND PRACTICE. I. JUEISDICTION. 1. Admiralty Jurisdiction. 2. Quarter Sessions, 643. 3. Central Criminal Court, 644. 1. Admiralty Jueisdiction. Offences by British Subjects on board Ships.] —By 30 & 31 Vict. c. 124 (the Merchant Shipping Act, 1867), s. 11, '// any liritish subject commits any crime or offence on hoard any British ship, or on board any foreign ship to which he does not belong, any court of justice in her Majesty's dominions lohich would hare had cognizance of such crime or offence, if committed on board a liritish ship luithin the limits of the ordinary jurisdiction of such court, shall hare jurisdic- tion to hear and determine the ease, as if the said crime or offeiice had been committed as last aforesaid. Persons on board British Ships in Bivers.] — Certain bonds or valuable securities were stolen from a British ocean-going merchant ship whilst she was lying afloat, in the ordinary course of her trading, in the river at Eotterdam, in Holland, moored to the quay, and were afterwards wrong- fully received in England by the prisoners with a knowledge that they had been thus stolen. The place where the ship lay at the time of the theft was in the open river, sixteen or eighteen miles from the sea, but within the ebb and flow of the tide. There were no bridges between the ship and the sea, and the place where she lay was one where large vessels usually lay. It did not appear who the thief was, or under what circumstances he was on board the ship : — Held, that the prisoners could be properly tried and convicted at the Central Criminal Court in this country, as the larceny took place within the jurisdiction of the Admiralty of" England. Reg. V. Carr (No. 2), 10 Q. B. D. 76 ; 52 L. J., M. C. 12 ; 47 L. T. 451 ; 31 W. E. 121 ; 47 J. P. 38 ; 15 Cox, C. C 129 ; 4 Asp. M. C. 604. The criminal jurisdiction of the Admiralty of England extends over British ships, not only on the high seas but also in rivers, below the bridges, where the tide ebbs and flows, and where great ships go, though at a spot where the municipal authorities of a foreign country might exercise concurrent jurisdiction, if invoked. ~ ^g. v. Anderson, 1 L. E., C. C. 161 ; 38 L. J., M. C. 12 ; 19 L. T. 400 ; 17 W. E. 208 ; 11 Cox, C. C. 198. Semble, there would be jurisdiction at common law if a British ship was on the high seas, or infra primos pontes, or in a tidal river where great ships come and go. Meg. v. Armstrong, 13 Cox, C. C. 185. Offence not Completed.] — The murder need not be consummated or wholly completed on board such ship to deprive jurisdiction. lb. Persons on board British Ship on High Seas.] — An English ship upon the high seas is to be considered as part of the territory of England ; and therefore a foreigner, who whilst on board such ship commits an offence against the English laws, is amenable to those laws ; and it makes no difference whether he has gone on board voluntarily, or has been taken and detained there against his will. Meg. v. Lopez ; Meg. v. Sattler, Dears. & B. C. C. 525 ; 7 Cox, C. C. 431 ; 27 L. J., M. C. 48 ; 4 Jur., N. S. 98. A person is found within the jurisdiction of a court of justice, within the meaning of the 18 & 19 Vict. c. 91, s. 21, when he is actually present there, whether he has come within such jurisdic- tion voluntarily, or has been brought there against hjs will. lb. The defendant was convicted on an indictment charging him with assaulting the prosecutors on the high seas, and imprisoning and detaining them. They were Chilian subjects, and had been ordered by the government of Chili to be banished from that country to England. The defendant being master of an English merchant vessel lying in the territorial waters of Chili, near Valparaiso, contracted with the Chilian government to take the prosecutors from Valparaiso to Liverpool ; and they were accordingly brought on board his vessel by the officers of the government, and were carried by the defendant to Liverpool under his contract : — Held, that although the conviction could not be supported for the assault and im- prisonment in the Chilian waters, it must be sus- tained for that which was done out of the Chilian tenitory, and that although the defendant was justified in receiving the prosecutor's on board his vessel in Chili, yet that justification ceased when he passed the line of Chilian jurisdiction, and the detention of the prisoners and conveying them to Liverpool was a wrong intentionally planned and executed in pursuance of the contract, amounting to a false imprisonment, and triable by English law. Reg. v. Lesley, Bell, C. C. 220 ; 8 Cox, C. C. 269 ; 29 L. J., M. C. 97 ; 6 Jur., N. S. 202 ; 1 L. T. 452 ; 8 W. E. 220. Indictment.] — In an indictment preferred at the assizes for a felony committed on the high seas, it is sufficient to allege that the offence was committed on the high seas, without also averring Digitized by Microsoft® 643 CEIMINAL JuAW— Jurisdiction. 644 that the offence was committed within the juris- diction of the Admiralty. Meg. v. Junes, 2 C. & K. 165 ; 1 Den. C. C. 101. British Ship— How Proved.]— On the trial of an indictable ofEence, committed on board a British ship on the high seas, it is not necessary to prove the register of such ship under the Merchant Shipping Act, 1854, Part 11, or that she belongs to a person qualified to be owner of a British ship according to the terms of that act. Bi-g. V. Von Selerg, 1 L. E., C. C. 26i ; 39 L. J., M. C. 133 ; 22 L. T. 523 ; 18 W. R. 935. Upon the trial of an indictment against a sailor for wounding the mate on board a ship on the high seas, the master of the ship, the boat- swain, and one of the crew, having stated the ship was a British ship, and was sailing under the British flag : — Held, that the ship was suffi- ciently proved to be a British ship. li. A hulk retainuig the general appointments of a ship, registered as a British ship, and hoisting the British ensign, although only used as a heat- ing warehouse, is prima facie sufficiently a British ship to be within the 17 & IS Vict. c. 104, s. 267, and a murder committed thereon is within the jurisdiction of the Admiralty. Meg. V. Armstrong, 13 Cox, C. C. 185. To prove that a, ship is a British ship, it is not necessary to produce the register or a copy thereof ; it is sufficient to shew orally that she belongs to British owners and carries the British flag. Meg. v. Allen, 10 Cox, C. C. 405. Position of Ship.] — Oral testimony as to the position of a ship at a given time is better evidence than the production of the log-book. Ih. Jiirisdlction over Poreign Ship.] — A German vessel canying the German flag, under the com- mand and immediate direction of a German subject, collided with an English steamer navi- gating the English channel at a point within two miles and a half from Dover beach, and the collision caused the English ship to sink and the death by drowning of an English subject on board of her. The prisoner was tried and found guilty of manslaughter at the Central Criminal Court : — Held, by the majority of the Court of Criminal Appeal, that the Central Criminal Court had no jurisdiction to try the case Meg. V. Keyn. The Ft-aiwonia, 2 Ex. D. 63 ; 13 Cox, C. C. 403 ; 46 L. J., M. C. 17. But by the Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict. c. 73), s. 2, An offenee cmmnitted by a jjerson, whether he is or is not a subject of her Majesty, on the open sea, within the territorial waters of her Majesty's domi- nions, is an offence within the jurisdiction of the admiral, although it may Jiave been committed on board or by means of a foreign sJiip ; and the person who committed such offence may be arrested, tried, and punished accordingly. By s. 7, " Territorial waters of her Majesty's dominions " means any part of the open sea within one marine league of the coast, measured from low-water mark. 2. QUABTEK Sessions. See infra, Tkial ( Venue'). Assizes occurring at same Time.]— The juris- diction of a recorder of a borough is not deter- mined or suspended by the arrival of the judges Digitized by " of assize in the same county, and the rule applies equally to the jurisdiction of county justices of the peace ; therefore general quarter sessions of the peace for a borough or county may be held concurrently with assizes in the same county, though it would be highly inconvenient to do so. Smith V. Meg. (in error), 3 New Sess. Cas. 564 : 13 Q. B. 738 ; 18 L. J., M. C. 207 ; 13 Jur. 850. AVhere the quarter sessions of a county occur while the judge of assize is proceeding with the trial of prisoners in that county, after the gi-and jury at the assizes has been discharged, the better course is for the quarter sessions not to proceed with the trial of any prisoners, but to dispose of all their other business, and then to adjourn to a future day. Anon., 9 C. & P. 790. In Cases of Larceny Abroad and on High Seas.] — See ante, Labcbnt. 3. Central Criminal Court. Statutes.]— By 44 & 45 Vict. o. 64, doubts as to the application of s. 24 of tlie Prisons Act, 1877, to tlie Central Oi'iminal Cou/rt distinct are removed. By 44 & 45 Vict. c. 68, s. lS,pro'oision is made for fixing tlie times of holding sessions of the Centrcil Criminal Court. Constitution of Court.]— The 4 & 5 Will. 4, c. 4, s. 36, ss. 1, 2, after establishing and consti- tuting the Central Criminal Court, and author- izing the crown to issue commissions of oyer and terminer and gaol delivery, enacts that it shall be lawful for the judges of the court, " or any two or more of them, to inquire of, hear, deter- mine and adjudge " the ofllences specified : — Held, that this enactment did not require that two judges should sit on the trial of an indict- ment. That, supposing the attendance of one of the aldermen of the city named in the commis- sion was necessary in addition to the presiding judge, it was no ground of eiTor that the same alderman was not present throughout the trial : — Held, also, that more than one coui-t might sit at the same time. Iiercrson v. Meg. {in error), 4 L. E., Q. B. 394 ; 38 L. J., M. C. 97 ; 20 L. T. 485 ; 18 W. E. 251 ; 10 B. & S. 404. The judge of the Sheriff's Court of the city of London has jurisdiction to sit as a judge of the Central Criminal Court. lb. Jurisdiction — Admiralty.] — A foreigner was convicted of manslaughter at the Central Cri- minal Court, committed on board a British vessel, in the river Garonne, within the boundaries of the French Empire, about thirty-five miles from the sea, and at a spot about 300 yards from the nearest shore, witldn the ebb and flow of the tide : — Held right, inasmuch as it was a place within the jurisdiction of the Admiralty of England, which that court had jurisdiction to try under 4 & 5 Will. 4, c. 36, s. 22. Meg. v. Anderson, 1 L. E., C. C. 161 ; 38 L. J., M. C. 12 ; 19 L. T. 400 ; 17 W. E. 208 ; U Cox, C. C. 198, See also Meg. v. Keyn, 2 Ex. D. 63 ; 46 L. J., M. C. 17 ; 13 Cox, C. C. 403. ^ ,. ^ ^. Larceny committed on board an Enghshship lying in a river in China is within the juris- diction of the Central Criminal Court. Mem v. Allen, 7 C. & P. 664 ; 1 M. C. C. 494. Larceny.] — A. was indicted at common l\^icrosoft® 645 CEIMINAL LAW— Indictment. law for simple larceny, in stealing in Middle- sex a quantity of lead. The lead was stolen from tiie roof of the church of Iver in Bucking- hamshire. The prisoner was indicted at the Central Criminal Court, which has jurisdiction in Middlesex (under 4 & 5 Will, i, c. 36), but not in Buckinghamshire : — Held, that he could not be convicted there, on the ground that the original taking, not being a larceny, but created by statute a felony, the subsequent possession could not be considered a larceny. Hex v, Millar, 7 C. & P. 665. Libel.] — In a prosecution at the Central Criminal Court for publishing a libel, it is not necessary, for the purpose of giving jurisdiction, that the prosecutor should have entered into recognizance, or that the defendant should have been in custody, or be bound to appear accoi-ding t» 4 & 5 WUl. 4, c. 36, s. 13. Beg. v. Gregory, 7 Q. B. 274 ; 14 L. J., M. C. 82 ; 9 Jur. 593. Forgery.] — A. was indicted at the Central Criminal Court for forgery. He was not shewn either to have committed the forgery, or to have been in custody within the jurisdiction of the court till the moment before the trial, when he surrendered in discharge of his bail : — Held, that he was triable in that court under 11 Geo. 4 & 1 Will. 4, c. 66, s. 21, as being in custody within its jurisdiction. Iteg. v. Smythies, Den. C. C. 498 ; 2 C. & K. 878 ; T, & M. 195 ; 19 L. J., M. C. 31. Casting away Ship.] — The Central Criminal Court has jurisdiction to try accessories before the fact to the felony of casting away and destroying a ship on the high seas, on an indict- ment against principal and accessory, though the principal felon is not amenable to justice. Reg. V. Wallace, 2 M. C. C. 200 ; Car. & M-. 200. Murder.]— A British subject might be indicted at the Central Criminal Court under 9 Geo. 4, e. 31, s. 7, for the murder of a foreigner out of the Queen's dominions. Reg. v. Azi:o- pardi, 1 C. & K. 203. Certiorari — On what Terms.] — When, after re- moval, the defendant is ordered to be tried under the act 19 & 20 Vict. c. 16, at the Central Criminal Court, the Court of Queen's Bench will not make it a condition, under s. 24, that the pro- secutor shall furnish the defendant with evidence which, it is suggested, has been obtained by the prosecutor since the taking of the depositions. Reg. V. Palmer, 5 El. & Bl. 1024. Grounds for.]— It is not a sufficient gi'ound for the removal of an indictment, under 19 & 20 Vict. 0. 16, s. 3, for trial at the Central Criminal Court, that, on the occasion of the first , apprehension of the prisoner, some months before the time for trial, articles and paragraphs had appeared in some papers of the particular town in which the trial would take place, of a nature likely to create prejudice against him, and that the case had become matter of qonversation amongst certain classes in that town, it not appearing either that those papers had a general circulation in the county, or that the case had become matter of general conversation in the county, as the jurors would be taken from the county as well as the town. W. R. 209. 646 Reg. V. Ruxton, 11 Certificate, Form of.] — The certificate mentioned in 19 & 20 Viet. c. 16, s. 25, may be in the form supplied by the Treasury. Reg. v. Baleomhe, 25 W. E. 585. Mandamus.] — Mandamus will not lie to the judges and justices of the Central Criminal Court. The recorder of London, upon the trial and conviction of a prisoner charged with larceny, having refused to order (under 24 & 25 Vict. c. 96, s. 100) the person with whom stolen property was pledged to restore it to the prosecutor, the Queen's Bench Division refused to grant a manda- mus directed to " the judges and justices of the Central Criminal Court," to compel the recorder to make such order. Reg. v. Central Criminal Court Judges, 11 Q. B. D. 479 ; 52 L. J., M. C. 121. II. INDICTMENT. 1. When it Lies. 2. Grand Jury, Powers of, 649. 3. Demurrer and QuasJdng Indietment, 649. 4. Trial when Indictvient is not Good, 652. 5. Binding over Prosecutor to Prosecute, 653. 6. Cojiy of Indietment, ij'c, 655. 7. Cajption, 656. 8. Several Counts, 657. 9. As to the Allegations, 658. 10. Description of the Party Accused, 660. 11. Allegations of Time and Place, 660. 12. Same of Party Injured, or whose Property Stolen, ^c, 661. 13. Description of Property or Instrument, 664. 14. Value, 665. 15. Contra Paeem and Centra Forniam Statuti, 666. 16. Amendment, when Alloiced, 667. 17. Nolle Prosequi, 672. 18. Joinder of Counts, ijc, 672. _ 19. When Prosecution put to Meetion, 673. 20. Time and Mode if Raising Formal Objec- tions, 676. 1. When it Lies. In Particular Cases.] — See previous sui-lieads. Civil Injury.] — An indictment will not lie for a mere civil injury. Bex v. Storr, 3 Buit. 1698. As for pulling off the thatch of a man's dwell- ing-house. Rem V. Atkins, 3 Burr. 1706. Or for selling, as two chaldrons of coals, a less quantity. Rex v. Osiorn, 3 Burr. 1697. Where express Remedy given.] — That which is declared by statute to be a misdemeanor cannot be a felony. Bex v, Walford, 5 Esp. 62. An indictment lies not upon an act of parlia- ment which creates a new offence, and prescribes a particular remedy. Rex v. Wright, 1 Burr. 543. When a statute creates a new offence by pro- hibiting and making unlawful anything which was lawful before, and appoints a specific remedy against such new offence by a particular method of proceeding, that particular method of pro- ceeding must be pursued, and no other. Ren v. Lovihond, 24 L. T. 357 ; 19 W. E. 753. Digitized by Microsoft® 647 CEIMINAL I.KW— Indictment. 648 Where, therefore, a party had violated the provisions of s. 75 of the 25 & 26 Vict. c. 102, by erecting a building without the consent of the Metropolitan Board of Works and beyond the line of building as provided for by that section, and which section points out the remedy for -such violation by summary proceedings before a justice: — Held, that the remedy for such offence was by summary proceedings only, and that an indictment would not lie. IJ>, After Statute Repealed.] — ^A person charged with an offence under an act of parliament which is repealed before the time of trial comes, must not be put upon trial. Anmi., 2 Lewin, C. C. 22. Frohibition and Penalty.] — Where a prohibi- tion and a penalty are contained in the same section of a statute, the remedy must be by proceeding for the penalty ; but where the pro- hibition is in one section, and the penalties are in a subsequent section, an indictment will lie. Iti-g. V. BuoTianan, 8 Q. B. 883 ; 15 L. J., Q. B. 227 ; 10 Jur. 736. Acting as an attorney without having been admitted is a misdemeanor indictable under 6 & 7 Vict. c. 73, s. 2, although a pereon so acting is incapable of maintaining an action for fees, and the so acting is a contempt of court. Il>. Befnsing to Marry Persons.] — To sustain an indictment against a clergyman for refusing to marry persons who have obtained a registrar's certificate for that purpose, they must have pre- sented themselves to him to be man-ied at some time when he could legally have married them. Seg. V. James, 3 C. & K. 167 ; T. & M. 300 ; 2 Den. C. C. 1 ; 14 Jur. 940. Against Colonial Governor for Illegal Con- duct in Office.] — Form of counts in an indict- ment against the governor of a colony for the proclamation of martial law, and for illegal acts done while such proclamation was in force. 11 Cox, C. C. App. i.— xi. Disobeying Orders of Justices.] — ^An indict- ment lies for disobeying an order of sessions. Rex V. Robinson, 2 Burr. 799 ; 2 Ld. Ken. 513. The quarter sessions of a county made regula- tions as to the expenses to be allowed in cases of felony, and by one of them directed that the taxed bill of costs should be annexed to the order for their payment. These regulations were confirmed by a judge, under 7 Geo. 4, c. 64, s. 26. In a case of felony, the clerk of assize made out the items of the costs allowed, and on the other half of the same sheet of paper wrote the order for the payment of their amount. The attorney for the prosecution tore off the first half of the paper which contained the items, and presented the other half to the county treasurer for pay- ment. The treasurer refused to pay : — Held, that on account of the mutilation of the order the treasurer was not indictable for this refusal. Reg. V. Jones, 9 C. & P. 401 ; 2 M. C. C. 171. if; on an indictment for disobeying an order of justices, in not abating a nuisance under the Building Act, it appears to have been founded on an order made in a, case in which the justices had no jurisdiction, the judge at nisi prius will direct an acquittal, although the defect appears on the record. Rex v. HolUs, 2 Stark. 536. An indictment lies against the president and stewards of a friendly society for disobeying an order of justices addressed to them to re-admit a member, though it is sworn that the power of doing so IS not in the president and stewards, but m a committee. Rex v. Wade, 1 B. & Ad. 861. The general rule that an indictment, and not a mandamus, is the proper mode of enforcing obedience by a ministerial ofiBcer to an order of sessions, does not prevail where the court sees that the ministerial oificer is put forward merely as a, nominal party, and that other persons are there who are to be compelled to perform the duty. Reg. v. Wood Dltton. 18 L. J., M. C 218. Under the 7 & 8 Vict. c. 101, an order in bas- tarcly, invalid on the face of it, was made, and aftera'ards superseded, by the same magistrates ; and, upon a fresh application, a second order was made, against which there was no appeal : — Held, that the second order was valid ; and an indictment for disobedience to such order was upheld. Reg. v. Rrisby, 3 New Sess. Cas. 591 ; T. & M. 109 ; 1 Den. C. C. 416 ; 18 L. J., M. C. 157 ; 13 Jur. 520. , On dismissing an appeal against a poor-rate, it was ordered by the sessions, that the appellants, " upon service of the order, or a true copy there- of, should pay to the respondents 91 Z. for their costs and charges by reason of the appeal." An indictment for disobedience of the order stating that a true copy of it was served on the defen- dants, who then and there had notice of the order, is sufficient. Reg. v. Mortloch, 7 Q. B. 459 ; 2 New Sess. Cas. 108 ; 14 L. J., M. C. 153 ; 9 Jur. 621. Held, also, that it was no objection to the order, that the amount of costs, having in the meantime being taxed by the clerk of the peace, was inserted in the order at an adjourned ses- sions, as the circumstances of the case warranted the conclusion that the parties assented to such a course. lb. Upon the trial of an indictment for disobeying an order of justices, the recital upon the face of the order of the facts giving the magistrates juris- diction is not evidence of the existence of such facts ; nor is the setting out of the order in hjeo verba in the indictment a sufficient allegation of the truth of the facts recited therein. Rex v. Gilltes, 2 M. & E. 454 ; 8 B. & C. 439 ; 3 0. & P. 52. Not Registering Birth.]— The 6 & 7 Will. 4, c. 86, s. 20, which enacts, that the father or mother of a child, or, in case of their illness or absence, the occupier of the house in which the child should have been born, shall, within forty- two days after the birth, give information of the particulars thereof to the registrar, upon request, is imperative, and the party disobeying it is liable to an indictment. Reg. v. Priee, 3 P. & D. 421 ; 11 A. & E. 727 ; 4 Jur. 291. Overseers not Accounting.] — An indictment against overseers, on 4 & 5 Will. 4, c. 76, s. 47, for not accounting to the auditor of a union upon request, on a day appointed by him, is bad, un- less it appears that there was some rule, order or regulation of the commissioners, that the over- seers should account upon such request. Reg. v. CrossUy, 2 P. & D. 319 ; 10 A. & E. 132 ; 3 Jur, 675. Digitized by Microsoft® 649 CEIMINAL LAW— Indictment. 650 Disobedience to Order of Court of Competent Jurisdiction.] — If there is a positive averment of disobedience of an order of a court of competent jurisdiction, an indictment is good, without a direct allegation of that which is the foundation of such jurisdiction ; nor can a defendant other- wise avail himself, either at the trial or elsewhere, but by shewing a want of jurisdiction in the court. Rex v. Myttim, Cald. 536 ; 1 Bott's P. L. 428, n. ; 4 Dougl. 333 ; 3 Esp. 200, n. 2. Gkand Jury, Powebs of. An indictment consisting of two counts, one for a riot, indorsed by the jury ignoramus, the other for an assault, returned billa vera, is good. Rcji V. JPieldho'use, Cowp. 325. If the grand jury at the assizes or sessions has ignored a bill, they cannot find another bill against the same person for the same offence at the same assizes or sessions ; and if such other bill is sent before them they should take no notice of it. Meg. v. Humplireyg, Car. & M. 601 :, S. P., Reg. V. Austin, 4 Cox, C. C. 385 ; see contri, Reg. v. Newton, 2 M. & Eob. 503. But a prisoner, who had been arrested in Canada under the Colonial Arrest Act) 6 & 7 Vict. 0. 34, (s. 5, upon a charge of burglary, for which the bill was ignored, was allowed to be arraigned upon another charge. Reg. v. Phillips, 1 F. & F. 105. 3. Dbmueeer and Quashing Indictment. Statute.]— By 14 & 15 Vict. c. 100, s. 25, every objection to any indietment for any formal defect apparent on the face thereof shall be tahen, by demurrer or motion to quash such in- dictment, before tile jury shall be sworn, and not afterwards. Demurrer — Objections to Jurisdiction.] — Upon a demurrer to an indictment found in an inferior court, objections may be taken as well to the jurisdiction of such court, as to the subject-matter of the indictment. Rex v. Feamleii, 1 T. B. 316. What may be Demurred to.] — It is no objection on demurrer, that several different defendants are charged, in different counts of an indictment, for offences of the same nature. Rex v. Kingston, 8 East, 41. A mistake in the year of the Queen's reign in which the offence is stated to have occurred is corrected by pleading over, and can only be taken advantage of on demurrer. Reg. v. Fenwich, 4 Cox, C. C. 139 ; 2 C. & K. 915. An indictment for a nuisance is not to be quashed, but is to be demurred to. Rex v. Sutton^ 4 Burr. 2116. Whole Becord looked at.] — On a de- murrer to an indictment, the superior court will look into the whole record. Rex v. Fearnley, 1 Leaoh, C. C. 425. Pleading over to.] — A prisoner cannot of right demur and plead over to an indictment for felony. Reg. v. Odgers, 2 M. & Bob. 479. A prisoner on an indictment for murder may demur, and if the demurrer is overruled, he may plead not guilty ; and, semble, that he may de- mur and plead over to the felony at the same time. Reg. v. PJielps, Car. & M. 180 ; 8. P., Reg. V. Adams, Car. & M. 29. But see Reg. v. Miteluill, 3 Cox, C. C. 31. In embezzlement, if the prisoner demurs to the indictment, and the demurrer is decided against him, he may still plead over to the felony, and take his trial. Reg. v. Purchase, Car. & M. 617. The court has a discretion to allow a defendant to demur and plead over to an indictment for a misdemeanor. Reg. v. Birmingluim and Glou- cester Railway Company. 3 Q. B. 223 ; 2 Gr. & D. 236 ; 6 Jur. 804. An indictment against a township for non- repair of a highway, alleged that the inhabitants, " the common highway being in decay, from the time whereof the memoiy of man is not to the contrary, ought to repair, and still ought to repair when and so often as it shall become necessaiy." The indictment contained no allegation that the defendants had ever repaired the road. The court granted leave to demur, with liberty to plead over in case of judgment against them on the demurrer. Reg. v. Tryddyn, 1 B. C. C. 19 ; 21 L. J., M. C. 108. Demurrer after Plea.] — Where a prisoner, in felony, has, in the absence of his counsel, pleaded to an indictment which is objectionable on demuiTer, the judge will, on the application of his counsel, allow him to demur before the evidence is gone into. Reg. v. Purchase, Car. & M. 617. Where a defendant had pleaded inadvertently to an indictment under . circumstances which might shew it to have been a mistake on his part, the court refused to allow him to withdraw his plea for the purpose of demurring, where the objection was one of a technical character, not in any way affecting the merits of the case. Reg. V. Brown, 2 Cox, C. C. 127 ; S. P., Reg. v. Odgers, 2 M. & Eob. 479. Eule to Join in Demurrer.] — Besides the common four-day rule on a defendant in mis- demeanor, to join in demurrer to his plea, there must be a peremptory rule giving him a cei'tain day in the discretion of the court, without which judgment cannot be signed against him. Rex v. Johnson, 6 East, 583. Judgment.] — If a defendant demui-s to an indictment, whether in abatement or other- wise, the court will not give judgment against him to answer over, but final judgment. Bex v. Gibson, 8 East, 107, 111. If an indictment for felony is demurred to, and judgment is given against the prisoner on de- murrer, such judgment is final, and sentence will be passed upon it ; and it is not a judgment quod respondeat ouster. Reg. v. Faderman, 3 C. & K. 359 ; T. & M. 286 ; 4 Cox, 0. C. 359. When Queen's Bench will Quash or Stay Pro- ceedings.] — The Queen's Bench will not quash or stay proceedings on an indictment, if there is no obvious defect upon the face of the indict- ment. Reg. V. Burnby, 5 Q. B. 348 ; D. & M. 362 ; 13 L. J., M. C. 29 ; 8 Jur. 240. An indictment for perjury committed upon an examination before a surveyor-general of the customs did not aver that it was preferred under the direction of the commissioners, under 3 & 4 Will. 4, c. 53. s. 112, and motion was m.ide to Digitized by Microsoft® 651 quash the mdictment or to stay proceedings, upon an affidavit that such direction had not been given. The court refused to interfere summarily. 11. Two indictments, the one for misdemeanor, the other for felony, had been removed into the Queen s Bench. The court refused to quash them upon an affidavit stating that they both related to j^'^e^same^tran^act^on. R,g. v. Stocldey, 2 G. Where a clear defect of jurisdiction appeare on the face of an mdictment, or is shewn by affidavit the court will, on the application of a defendant,' quash the mdictment after he has pleaded. In a doubtful case the court will exercise ite dis- cretion, and leave him to his remedy by writ of — - Beg^ Y._ Kearu; 4 B. & S. 947 ; 9 Cox, C M. C. Ho ; 10 Jur., N. S. 72i | CEIMINAL l.A\N— Indictment. error. C. 433 ; 33 L. J. 9 L. T. 719. Where a court of quarter sessions had quashed an mdictment which was within their iuris- diction, the court wiU not inquire, the order being brought up by certiorari, whether the in dictment was properly quashed ; the proper way of raising such a question is by a writ of error Beg. V. Wilson, 6 Q. B. 620 ; 1 New Sess. Cas' 427 ; 8 Jur. 1009. The court refused to quash upon motion an in- dictment for selling by false weights. Bex v Oi-ooTi.es, 3 Burr. 1841. Or an indictment against several for entering a lead mine and carrying away lead, on the ground that it was a mere trespass. Bex v Johnston, 1 Wils. 325. But an mdictment for converting a house into a hospital for taking in and delivering lewd, idle and disorderly unmarried women, was quashed. Bex v. Maedojiald, 3 Burr. 1645. The court will not, on the application of the defendant, quash an indictment for perjury. Beg. V. Withers, 4 Cox, C. C. 17. Where an indictment at common law for dis- obeying an order of sessions for the maintenance of a bastard child was defective, but only on points which rendered it bad on demurrer, the court refused to interfere by quashing it. Beg. v. Taylor, 9 D. P. C. 600 ; 5 Jur. 679. Bnle Absolute in First Instance.] — A rule to quash an indictment for informality at the instance of the prosecutor, is absolute in the first instance, although the defendant has re- moved it by certiorari, and has not yet appeared and pleaded.. Beg. v. Stowell, 1 D., N. S. 320 : 5 Jur. 1010. Not Quashed in Part.] — An indictment cannot be quashed in part. Beg. v. Witliers, 4 Cox, C. C. 17. Where Sessions have Jurisdiction.] — ^An order of quarter sessions, brought up by certiorari, appeared to be an order quashing an indictment containihg counts for forcible entries, assaults and a riot : — Held, that the sessions, having juris- diction over the subject-matter of the indict- ment, had jurisdiction to quash it. Meg. v. Wilson, 6 Q. B. 620 ; 1 New Sess. Cas. 427 ; 8 Jur. 1009. But an indictment for forgeiy found at the quarter sessions is a nullity, and therefore, where indictments for forging requests for the deliveiy of goods had been found at the quarter sessions, and transmitted to the assizes, the judge ordered 652 that they should be quashed and new indict A judge at nisi prius has no jurisdiction to oLd"at"'th^'^"*/'"" P^^J"^7 -t =o--on 1,*; tound at the quarter sessions, and removed by so fZd' T- ""' ^T^""^ ^"'"'^ ■' an indictment so found being void. Bex v. Haynes, E. & M. . Where several different defendants are charged in different counts of an indictment for offences ot the same nature, it may be a gi-ound for applying to the court to quash the indictment. Uex V. Kingston, 8 Bast, 41. An indictment for a nuisance must be de- mun-ed to^ and cannot be quashed. Bex v. Sutton, 4 Burr. 2116 When Quashed.]— After judgment on de- murrer, an indictment cannot be quashed at the instance of the prosecutor. Beg. v. Smith, 2 M. & Kob. 109. The court will not quash a defective indict- ment on the motion of the prosecutor, after plea pleaded, before another good indictment is found Bex V. Wynn, 2 East, 226. Terms.] — Terms may be imposed on a prosecutor before he is allowed to quash his own indictment. Bex v. Webb, 3 Burr. 1468 • 1 W Bl. 460. ' An indictment against a defendant, standing first in order in the paper, was moved to be quashed on the usual terms ; but the court only allowed it to be quashed on disclosing the name of the prosecutor, and that the substituted in- dictment should stand in the same situation as the first would have done. Bex v. Glenn, 3 B & A. 373. A person who has pleaded to an indictment which is invalid, on account of its having been found upon the testimony of witnesses not duly sworn to give evidence, may be required to plead to another indictment for the same offence, with- out the first indictment being quashed by the court. Bex v. Chamberlain, 6 0. & P. 97. A., being indicted for perjury at the spring assizes, 1843, at those assizes entered into recog- nizances to try at the summer assizes, 1844 ; but, it being discovered before that time that the in- dictment was defective, another indictment was preferred and found at those assizes, on which the prosecutor wished the defendant to be tried : — Held, that the defendant 'was entitled to have the first indictment disposed of before he could be tried on the second ; but the judge quashed the first indictment upon the terms of the prose- cutor paying the defendant his costs of the traverse and recognizance, and the defendant proceeding to trial on the second indictment without traversing. Beg. v. Smm, 1 C. & K. 730. 4. Teial when Indictment is not Good. A judge may refuse to try an indictment clearly bad in point of law. An indictment for perjury, not avemng the matters falsely sworn to be material, nor she-iving them to be so, is within this authority. Bex v. Tremaine, 5 D. & E. 413 ; 3 B. & C. 761 ; B. & M. 147 ; S. P., Bex v. Hipper, B. & M, 210. Counsel are not allowed to argue at length the invalidity of an indictment for the purpose of Digitized by Microsoft® 653 CEIMINAL luAW— Indictment. 654 indncing the court to refuse to try it. But it is sometimes conTenient for counsel to suggest a point on which an indictment is clearly bad, to save the time of the court. Ilea v. Ahraham, 1 M. & Rob. 7. f>. Binding over Prosecutor to Prosecute. Statute.]— By 22 & 23 Vict. c. 17, s. 1, no_ Mil of indictment for perjury, suhornat ion of perjury, conspiracy, obtaining money or otlierpropcrty by falxe pretences, liecping n gamhling-liovse, keep- ing a disorderly Jwiise, and any Indecent assault, shall be presented to or found by any grand jury, unless tlw prosecutor or other person pre- senting such indictment has been bound by rc- rognizanees to prosecute or girc evidence against the person accused of sveh offence, or unless the person accused 1ms been committed to or de- tained in custody, or has been bound by recog- nizance to appear to answer to an indictment to be preferred against him for such offence, or unless such indictment for such offence, if charged to hare been committed in England, be preferred by the direction or mith the consent in writing of a judge of one of the superior courts of law at Westminster, or oftlie attorney- general or solicitor-general for Migland, or un- less such indictment for such offence, if charged to haee been committed in Ireland, be preferred by the direction or irith tbe consent in wi-itin-g of a judge of one of tlie superior courts of law in DuVlin, or of the attorney or solicitor general for Ireland, or (^in the ease of an indictment for perjury') by the direction of any court, judge or public functionary authorized by H k 15 Vict. c. 100, to direct a prosecution for perjury. By s. 2, where any charge or complaint shall be made before any one or more justices of the peace that any person has committed any of tlw offences aforesaid withinthe jurisdiction of such justice, and such justice shall rifuse to commit or to bail the person charged v:ith sveh offc}Wc to be tried for tJtc same, then in case the prose- cutor shall desire to prefer an indictment re- specting the offence, it shall be lawful for the justice, and lie is required to talie the recogni- zance of such prosecutor to prosecute the eliarge or complaint, and to transmit such recognizance, information and depositions, if any, to the court in which such indictmi^nt ought to be preferred, in the same mamier as such justice would have done in ease he had committed the person charged to be tried for such offence. The 30 & 31 Vict. c. 35, ss. 1, 2, limit the ope- ration of the 22 ^- 23 Vict. e. 17, as to the pre- sentment of bills of indictment mentioned in that act, containing different counts. When magistrate bound to take Recognizance — Discretion.] — A magistrate, if he refuses to com- mit or bail the person charged, is bound, under 22 & 23 Vict. c. 17, s. 2, to take the recognizance of the prosecutor, if the information discloses any of the offences mentioned in the statute ; but he has a discretion to refuse if no indictable offence is disclosed. Wason, Ex parte. 4 L. E., Q. B. 573 ; 38 L. J., Q. B. 302 ; 17 W. E. 881. Where, therefore, the offence charged is that of conspiracy, by three persons, two of whom are members of the House of Lords, to deceive the House, and so to prevent the due course of justice and injure and prejudice a third person, by making statements in the House which they knew to be false, tlje magistrate is right in refusing to take any proceedings : as members of either House of Parliament are not civilly or criminally liable for any statements made in the House, nor for a conspiracy to make such state- ments, lb. The court will not interfere with the exercise of the discretion of the judge under this act. Reg. V. Bray, 3 B. & S. 255 ; 9 Cox, C. C. 215 ; 32 L. J., M. C. 11 ; 7 L. T. 248 ; 11 W. R. 7. Consent of Judge to Prosecution,] — It is suf- ficient if the consent of the judge to the prosecu- tion is given in writing ; and no previous summons of or notice to the party, or even an affidavit of the facts, is necessary. lb. Indictment — Form of.] — It is not necessary that an indictment should aver that the con- ditions imposed by 22 & 23 A^ct. c. 17, s. 1, had been performed ; e.g., that it had been preferred by the direction or with the consent of a judge, or of the attorney or solicitor general. Knowlden V. Ret), (in error), 5 B. & S. 532 ; 9 Cox, C. G. 483 ; '33 L. J., M. C. 219 ; 10 Jur., N. S. 1177 ; 10 L. T. 691 ; 12 W. R. 957. Becognizances, when Exhausted.] — Three persons were severally bound by recognizances to appear at the next session of the Central Criminal Court, and there surrender themselves, and plead to such indictment as might be found against them for or in respect of a charge of con- spiracy to cheat and defraud. The prosecutors were also bound over to appear at such next session, and to prefer, or cause to be preferred, a bill of indictment against the persons accused of the offence of conspiracy, and duly to prose- cute such indictment and give evidence thereon. At the next session an indictment was preferred and found, and the defendants surrendered ; but in consequence of the absence of a material witness for the prosecution the trial was put off, and the recognizances duly respited until the next session. Before the next session the "solicitor-general directed an indictment for a conspiracy to be preferred against the three defendants and a fourth person, and a second indictment was preferred and found against them all, upon which the original defendants appeared, but refused to plead. A plea of not guilty was entered for them, and they were found guilty and sentenced : — Held, that the in- dictment was preferred with proper authority, and the recognizances duly entered into, as the charge on which the defendants were tried was the same as that to which the recognizances related, and those recognizances were not ex- hausted by the fli'st indictment being preferred, and the defendants surrendering. Ih. Statute applies to every Count.] — The pro- visions of the above statute must be complied with in respect to every count of an indictment to which they are applicable, and any count in which they have not been complied with must be quashed. Reg. v. Fuidge, L. & C. 390 ; 9 Cox, C. C. 430 ; 33 L. J., M. C. 74 ; 10 Jur., N. S. 160 ; 9 L. T. 777 ; 12 W. R. 351. An indictment contained two counts for obtaining money by false pretences on two several occasions, the requirements of the above statute having been complied with in respect of one of the cases only. The prisoner refused to Digitized by Microsoft® 655 CEIMINAL LAW- plead, and a plea of not guilty was entered by the direction of the court. Evidence was given upon each count, and the prisoner was convicted upon each : — Held, first, that the second count ought to ha^e been quashed, and that therefore the conviction upon that count could not stand. n. Held, secondly, that, as evidence ~n-as received which would have been inadmissible upon the trial of the first count alone, the conviction upon that count also was bad. Ih. Discharging Eecognizanoes.] — A prosecutor who has required the magistrates to take his recognizances to prosecute, on a charge within the 22 & 23 Vict. c. 17, s. 2, when the magistrates have refused to commit the person charged, must either go on with the prosecution or have his recognizances forfeited, as it would defeat the object of the statute if he was allowed to move to have his recognizances discharged. Reg. V. Harg reaves, 2 F. & P. 790. G. Copy op Indictmest, &c. When Prisoner Entitled to.]— A prisoner xipon his acquittal is not entitled ex debito justitise to a copy of his indictment. Rex v. Brangan, 1 Leach, C. C. 27. Without an order of the court. Morrison v. Kelly, I W. Bl. 485. A prisoner indicted for felony is not entitled to a copy of the indictment found against him, or to a copy of the jury panel, or to copies of the panels returned at foi"mer sessions of the court. Reg. v. Mitchell, 3 Cox, C. C. 1. Where the application is opposed by the attor- ney-general, the court will not order a party in- dicted for embezzlement to be furnished with a copy of the indictments found against him, though they are very voluminous and contain a great many counts ; but in such case the court will order the accused to be furnished with a full bill of particulars. Reg. v. Hughes, i Cox, C. C. 445. A prisoner charged under 11 & 13 Vict. c. 12, is not of right entitled to a copy of the indictment, nor will the court exercise its dis- cretion in his favour by awarding him a copy ex gratia. lb. But he is so entitled in cases of misdemeanor as a matter of right, without a previous appli- cation to the court. Evans v. Philips, 2 Selw. N. P. 952 ; 1 Phil. Evid. 407. A prisoner is entitled to a copy of his indict- ment to enable him to plead autrefois acquit. Rex V. Vandercomh, 2 Leach, C. C. 711 ; 2 East, P. C. 519. A copy of an indictment is necessary on the trial of an action for malicious prosecution ; and the court will not entertain the question whether it was obtained by fraud. Caddy v. Barlow, 1 M. & R. 275. In Cases of Treason.]— *c ante, Teeason. Eecord of Proceedings.]- Where a party has been tried at a court of quarter sessions, which has previously lapsed for want of due adjourn- ment, he has a right to have a record of the proceedings made up by the clerk of the peace, although the object of the application is to enable hira to support a plea of autrefois con- Digitized by Microsoft® viot. 110. -Indictment. Rex V. Middlesex (Justiees), 3 N. 656 & M. Crown Office Certificate.]— A prosecutor of an indictment for misdemeanor may obtain the usual crown office certificate of his bill having been found, for the purpose of taking out a judge's warrant against the defendant, with- out obtaining an office copy of the indictment. R£x V. Redfern, 2 A. & E. 387 ; 4 N. & M 198. 7. Caption. Jurisdiction.]- The caption of an indictment must shew that the court where it was found had jurisdiction. Rex v. Fearnleii, 1 Leach, C. C. 425. Of our Lady the Queen.]— An indictment be- ginning " The jurors of our lady the Queen," is not bad in arrest of judgment. The words, " of oui- lady the Queen," may be rejected as sur- plusage, the jurors intended being those men- tioned in the caption. Reg. v. Turner, 2 M. 6i . Rob. 214. See- Broome v. Reg. (in error), 12 Q. B. 834 ; 17 L. J., M. C. 1,')2 ; 12 Jur. 538. Names of Grand Jurors.] — In the nisi prius record of an indictment removed by certiorari, the names of the grand jurors who found the in- dictment need not be inserted in the caption. Rex V. Bavis, 1 C. & P. 470. It is not necessary to specify the names of the grand jury in the record of the caption of an indictment ; it is enough to aver that the indict- ment was found by twelve good and lawful men, for the party indicted has an opportunity of resorting to the original caption, where the names of the jurors appear. Aylett v. Rex (in error), 3 Bro. P. C. 529 ; 6 A. & E. 247, n. The caption of an indictment on which a defendant had been convicted was drawn up by the clerk of the peace from the minutes of sessions, and returned with the indictment to the crown officer. It stated the presentment to be made by the oaths of A., B., C, D. (naming twelve grand jurors), and others, good and lawful men. A rule was obtained (with a view to a court of error), calling on the clerk of the peace to shew cause why the caption should not be amended by inserting the true names and number of the grand jury sworn. Proof was given by affidavit, that the real number ex- ceeded twenty-five. The clerk did not deny this, but stated that he had no minute or recollection of the names ov number :— Held, that the caption was not incorrect in omitting to state the number and all the names of the gi-and jury ; and that, under these circumstances, no alteration could be made in it, and the de- fendant received judgment. Rex v. Marsh, 6 A. & E. 236 ; 1 N. & P. 187 ; 2 H. & W. 366. Jurors of County.]— Semble, per Pattesou, J., that an indictment which omits to describe the iurors as jurors of the county is bad. Whitehead V. Reg. (in error-), 7 Q. B. 582 ; 14 L. J., M. C. 165 ; 9 Jur. 594. A caption stating that an indictment was found at the sessions holden at Warwick, m and for the county of Warwick, and by ad- journment thence at Coventry, in and for the same county, upon the oath of A. B., &c., good C 657 CEIMINAL IjAW— Indictment. 658 and' lawful 'men of the county then and there sworn to inquire for the body of the county, is a sufficient caption under the 5 & 6 Vict. c. 110, annexing the county of the city of Coven- try to Warwickshire, IMloway v. Reg. (in error), 17 Q. B. 319 ; 2 Den. C. C. 287 ; 15 Jur. 825. 8. Several Counts. Each Count a Separate Indictment.] — Each count in an indictment is, to all intents and purposes, a separate indictment in itself. Latliam V. Beg. (in error), 9 Cox, C. C. 516 ; 5 B. & S. 635 ; 33 L. J., M. C. 197 ; 10 Jur., N. S. 1145 ; 10 L. T. 571 ; 12 W. R. 908. • Where, therefore, it appeared by the record that the defendants pleaded not guilty generally to an indictment containing two counts, and that the jury found a verdict of guilty upon the one count, but it did not appear that they found any verdict upon the other : — Held, that the conviction and judgment upon the one were, nevertheless, good.' lb. Count for Felony and Misdemeanor.] — A prisoner was arraigned upon an indictment, con- taining one count for felony and one for mis- demeanor ; and, having pleaded not guilty, was duly tried and convicted of felony : — Held, that the miBJoinder was no objection to the convic- tion. Reg. V. Ferguson, Deai-s. G. C. 427 ; 6 Cox, C. C. 454 ; 24 L. J., M. C. 61 ; 1 Jur., N. S. 73. Adding Counts — Eights of Prisoner.] — Where the counsel for the prosecution has obtained leave to add a count on the ground that the indictment, as framed, will not enable him to ■disclose all the facts of the transaction, the ■defendant cannot claim to be tried at once upon the indictment already preferred, and the trial must be postponed. Reg. v. Stone, 1 F. & F. ■310. Adding Counts Charging Offence Withdra-wn l)efore Police Magistrate — Consent of Court.] — 'The defendant B., with others, was charged with having published alleged blasphemous libels on ■certain dates, in the P. newspapei'. The fiat of the Director of Criminal Prosecutions had been •obtained authorizing the prosecution. The summons on which the defendants were charged ■specified the particular dates of the libels on ■which the prosecution relied. At the first tearing before the magistrates the alleged libels -were not read out in court, but the counsel for the prosecution gave un undertaking to furnish ■both to 'the court and the defendants particulars •of the numbers of the newspaper and articles prosecuted. At the adjourned hearing the de- fendant B. called the attention of the court to the fact that the particulars furnished in pur- suance of the undertaking contained a reference to an alleged libel published in an earlier num- .ber of the same newspaper but not included in the summons. The counsel for the prosecution then withdrew the number as not being in the summons. The defendants were committed for trial. The counsel for the prosecution subse- ■quently applied ex parte to 'the recorder of London under 30 & 31 Vict. c. 85, s. 1, to add two counts to the indictments based upon the .■alleged libel contained in the number ■withdrawn before the police magistrate ; the counsel for the prosecution did not state in his application that he had so withdrawn the said number of the. newspaper. The recorder granted leave ; the two counts were added, and the indictment sent up to the grand jury, who found a true bill against the defendants in respect of the whole indictment. The indictment was removed by certiorari from the Central Criminal Court into the Queen's Bench Division of the High Court. The defendants then obtained a rule nisi, calling upon the prosecution to shew cause why the two additional counts should not be quashed : — Held, on argument of the rule, that the counts must be quashed on the ground that the leave of the court to add them was obtained on materials insufficient for the exercise of its discretion ; and that the obtaining of such leave in cases under the Vexatious Indictments Act, and acts amending it, is not a mere formality, but must conform to the spirit and intention of those acts. Reg, v. Bradlaugh (No. 1), 15 Cox, C. C. 156 ; 47 L. T. 477 ; 81 W. R. 229 ; 47 J. P. 71. 9. As TO THE Allegations. Statute.]— By 14 & 15 Vict. c. 100, s. 24, «« indictment for any offence shall he held insuffi- cient/or luant of the averment of any matter un- necessary to he proved, nor for tlie omission of the words " as appears hy tlie record," or of the words " withfoi-ce and arms," nor for want of a proper or formal eon/iluaion, nor for want of or imperfection in the addition of any defendant. Construction Generally.] — Except in certain cases, where technical expressions having grown by long use into law are required to be used, the same sense is to be put- on the words of an in- dictment which they bear in ordinary accepta- tion ; and if the sense of any word is in ordinary acceptation ambiguous, it will be construed according sis the context and subject-matter require it to be, in order to make the whole con- sistent and sensible. The word " until " may therefore ,be construed either exclusive or in- clusive of the day to which it is applied, accord- ing to the context and subject-matter. Rex v. Stevens, 5 East, 244 ; 1 Smith, 437. Inconsistency or Bepugnancy.] — Every in- dictment must contain a complete description of such facts and circumstances as constitute the crime, without inconsistency or repugnancy. Ih. Surplusage.] — If an indictment is in itself good, tautologous words will be rejected as surplusage. Rex v. Mornis, 1 Leach, C. C. 109. A bad indictment may be made good by reject- ing as insensible and useless such words as ob- struct the sense of it. Rex v. Redmond, 1 Leach, C. C. 477. An indictment, alleging that the defendant " did unlawfully obtain from the said C. C. a, cheque for the sum of 8Z. lis. M. of the moneys of the said W. W.," is a sufficient allegation of ■• the ownership of the cheque. Reg. v. Godfrey, Dears. & B. C. C. 426 ; 27 L. J.. M. C. 161 : 4 Jur., N. S. 146. Ho'w Framed.] — A statement in an indictment may be either according to the fact or the legal operation. Bex v. Healey, 1 M. C. C. 1. Digitized by Microsoft® '659 Eecital.]_The words " as follow, that is to say when introductory to a recital in an in- dictment, do not bind the party to an exact and a verbatim recital. Rex v. Hart, 1 Leach, C. C It'. ^^p'V- ^- \l^'^ ^'"^gl- 193; Gowp. ^^9 , (i. P., Bex V. May, 1 Leach, C. C. 192. _ Intent, when necessary.] — Where an evil ■intent, accompanying an act, is necessary to constitute such act berime, the intent must be alleged m^ the indictment, and proved ; though It IS sufficient to allege it in the prefatory part of the indictment. But where the act is in Itself unlawful, the law infers an evil intent, and the allegation of such intent is merely matter of form, and need not be proved by extrinsic evi- dence on the part of the prosecutor. Rex v Phillips, 6 East, 464 ; 2 Smith, 550. _ An indictment charged that a surgeon, kuow- - mgly and with intention to deceive, signed a cer- tificate required by 9 Geo. 4, c. 41, s. 30, for the detentiou.of peraons in lunatic asylums, without having visited and pei-sonally examined the patient, contraiy to the statute : the jury nega- tived the intention to deceive, and found him guilty :— Held, that in the description of the offence, the averment of intention was surplusage, and that such unnecessary matter might be re- jected, as well in an indictment on a penal statute as at common law. Reso v. Jones. 2 B. & Ad. 611. Applicable to Two Offences.]— An indictment, which may apply to either of two different defi- nite offences, is bad. Rex v. Marshall, 1 M. C. C. 158. Duplicity.] — Duplicity in an indictment is no ground of error. Nash v. Reg. (in error), 9 Cox, C. C. 424 ; 4 B. & S. 935 ; 33 L. J., M. C. 94 ; 10 Jur., N. S. 819 ; 9 L. T. 716 ; 12 W. R. 421. Interlineation.] — If an indictment has an in- terlineation, and has a caret at the proper place, where the interlined words are to come in, the court will take notice of the caret, and read the indictment correctly. Rex v. Davis, 7 C. & P. 319. TJngrammatlcal.] — An indictment, ungram- matical, is not bad if the real meaning is suffi- ciently expressed. Reg. v. Stokes, 1 Den. 0. C. 307. Ad conunnne nocnmentum.] — Since 14 & 15 Tict. u. 100, s. 24, an indictment for a public nuisance need not conclude ad commune nocn- mentum. Reg. V. Holnie, Dears. C. C. 207 ; 22 L. J., M. C. 122 ; 17 Jur. 562. Title of Statute.] — Semble, when the title of an act is not correctly set out in an indictment, but the variation from the true title is so small that the court can have no doubt what statute is referred to by the title indicated, no objection can be sustained to the sufficiency of the in- dictment on account of the variance. Reg. v. Westley, Bell, 0. C. 193 ; 29 L. J., M. C. 85 ; 5 Jur., N. S. 1362. CKIMINAL I.ky^— Indictment. Feloniously.] — In felonies the indictment must allege them to have been done feloniously ; and therefore, where a statute creates a felony, it is not sufficient to charge the jjffiender merely 660 r ^^t^l'^n °^ *« ^totite- lieg. v. Gray, L. & 0. 365 ; 9 Cox, 0. C. 417 ; 33 L. J., M. C. 78 • 10 Jur., N. S. 160 ; 9 L. T. 733 ; 12 W. k! 350 ' Aider by Verdict.] -After verdict defective averments m a second count of an indictment may be cured by reference to sufficient aver- ments m the first count. Reg. v. Wawrton, 2 Den. G. C. 340 ; 17 Q. B. 562 ; 21 L. J., M. C. 7 ; 16 Jur. 16. There is no distinction between civil and cnminal pleadings as to defective allegations, vrtiich are aided by verdict at common law. Heymann v. Meg. {in error), 8 L. E., Q. B 102 • 28 L. T. 162 ; 21 W. K. 357 ; 12 Cox, C. C. 383! 10. Dbsckiption of the Paety Accused. Statute.]— By 14 & 15 Vict. c. 100, s. 24, wo indtctment for any offence shall le held imuffi- eientfor want of or imperfection in the addition of any defendant. When Unknown.]— If the name of a prisoner is unknown, and he refuses to disclose it, an in- dictment against him as a person whose name is to the jurors unknown, but who is personally brought before the jurors by the keeper of the prison, will be sufficient. Rex v. , E. k E. 0. C. 489. But an indictment against him as a person to the jurors unknown, without something to ascer- tain whom the grand jury meant to designate, is' insufficient. li. Servant.] — An indictment against A. by the addition of " servant " was ill. Rex v. Checketts, 6 M. & S. 88. Wife or Widow — Amendment.] — A woman charged with the murder of her husband was described as "A., the wife of J. 0., late of the parish of S., in the county of W., labourer." The judge ordered this to be amended by striking out the word " wife," and inserting the word "widow." Reg. v. Orchard, 8 G. & P. 565. 11. Allegations of Time and Place. Statute.]— By 14 & 15 Vict. c. 100, s. 24, no indictment for any offence shall le held insuffi- cient for omitting to state tlie time at which the offence was committed in any case where tvme is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to ha've been committed on a day suhsequent to tlie finding of the indictment, or on an impossible day, or on a day that never liappened. Where time is material, the time stated will be taken to be the true time. Bex v. Napper, 1 M. C. C. 44 ; S. P., Rex v. Browxi, M. & M. 163. Digitized by Microsoft® Tflne— After Verdict.]— Where dates in an indictment are laid under a videlicet, the vide- licet may be rejected after verdict in order to support the indictment. Ryalls v. Reg. (in error), 11 Q. B. 781 ; 18 L. J., M. C. 69 ; 13 Jur. 259— Ex. Ch. After verdict, to support an indictment, and to , shew that the provisions of a statute have been complied with, dates laid under a videlicet will be taken to be true. Reg. v. Scott, Dears, .t Z 2 661 CRIMINAL LAW — Indictment. 662 B. C. C. 47 ; 25 L. J., M. C. 128 ; 2 Jur., N. S. 1096. In an indictment for assault and battery, the only allegation of the year in which the offence was committed was "in the tenth year of our SoTereigu Lady Queen Victoria : " — Held, that by 7 Geo. 4, c. 64, s. 20, this was no ground of error. Broome v. Beg. (in error"), 12 Q. B. 834 ; 17 L. J., M. C. 152 ; 12 Jur. 538— Ex. Ch. Day before that mentioned in Statute.] — Where a statute makes an offence committed after a given day triable in the county where the party is apprehended, and authorizes laying it as if committed in that county, and does not vary the nature and character of the offence, it is no objection that the day laid in the indict- ment is before the day the statute mentions, if the offence was in fact committed after that day. Mcs: y. Trelwrne, 1 M. C. C. 298. Day not yet arrived.] — The objection that an ofience was laid in an indictment to haye been committed on a day which had not yet arrived, could only be taken advantage of on demurrer, and could not be taken after a plea of not guilty. Reg. v. Fenwich, 2 C. & K. 915 ; 4 Oox, C. C. 139. Place — Parish, whether necessary.] — In an indictment for burglary, it is suflBcieut to allege that the burglary was committed at a place, naming it, e. g., " at Norton-juxta-Kempsey, in the county aforesaid," without stating the place to be the parish, vill, chapelry, or the like. Iteg. v. Brookes, Car. & M. 543. No such place in County.] — It was no objection on the plea of not guilty that there was no such place in the county as that in which the offence was stated to have been com- mitted, and the fact that there was no such }ilace in the county could only be taken advantage of by plea in abatement. Bex v. Woodioard, 1 M. C. C. 323. What Parish.] — In an indictment, al- leging a dwelling-house to be "situate at the parish aforesaid," the parish last mentioned . must be intended. Bex v. BicJt-ards, 1 M. & Rob. 177. A house is properly described as in the parish of Birmingham, although for certain ecclesias- tical purposes that parish is divided into three divisions, each called a parish. Beg. v. Howell, 9 C. & P. 437. When Material.] — Where place is mate- rial, the place stated will be taken to be the true place. Bex v. Napper, 1 M. C. C. 44 ; S. P., Bex V. Broivn, M. & M. 163. Construction.] — Words of reference, as " there " and " said," in an indictment, will not be referred to the last antecedent, where- the sense requires that they should be referred to some prior antecedent. ^Vr■igJlt v. Bex (in error), 3 N. & M. 892. 12. Name of Party Injured, or whose Property Stolen, &c. Statute.]— By 14 & 15 Vict. c. 100, s. 24, no ■iwlirtment for any offence shall he lieJd insuffi- cient for that ally person mentioned in the in- dietment in designated by a name of office, or other deserij)tii-r api>ellation^nstead ofhisproper name. Assumed Name.] — A prosecutor may be de- scribed by a name he has assumed, although it is not his right name, if he has been known by that name for several previous years. Bex v. Norton, K. & E. C. C. 510» Marriage after Offence.] — An indictment for robbery on an unmarried woman in her maidsn name is good, although she marries before in- dictment found. Be.v v. Turner. 1 Leach, C. C. 536. Name hy which usually known.] — It is suffi- cient to describe a prosecutor by the name by which he is commonly and best known. Beg. V. Gregory, 2 New Sess. Cas. 229 ; 8 Q. B. 508 ; 15 L. J., M. C. 38 ; 10 Jur. 387. A foreigner residing in this country, whose name was Charles Frederick Augustus William D'Este, and who was commonly called the Dnke of Brunswick and Luneberg, though not de facto the reigning duke, was sufficiently described as Charles Frederick Augustus William, Duke of Brunswiclc and Luneberg. II). Christian Names.] — The prisoners were in- dicted for stealing certain articles from Richard Henry John Beaumont McCumming ; there was evidence of the prosecutor's surname being McCumming, but there was no evidence what his christian names were : — Held, that the in- dictment was not sustainable. Beg. v. Bent, 2 Cox, C. C. 354. The only evidence of the christian name of the prosecutor was that of >■ witness who had seen him sign an infoimation, not in the presence of the prisoners, and also the depositions when before the magistrates, in the presence of the prisoners. The witness knew nothing of the prosecutor's christian name except from having seen him sign his name on those two occasions : — Held, that the witness's evidence was admis- sible to prove the fact of the prosecutor's name. Beg. V. Toole, Dears. & B. C. C. 194 ; 26 L. J., M. C. 79 ; 3 Jur., N. S. 420. Transposition of Names.] — Property stolen described in an indictment as belonging to J. H. S., whereas, in fact, the name was H. J. S., is improperly described. Beg. v. James, 2 Cox, C. C. 227. Variance.] — A count in an indictment charged that defendant made an assault upon one " Heniy B.," "and him, the said William B., did beat, and other wrongs to the said William B.," did, to the "damage of the said William B." On motion in arrest of judgment, held sufficient. Beg. V. Crispin, 11 Q. B. 913. Name Unknown.]— If the name of a party killed is not known, he may be stated to be " a certain person to the jurors unknown." Bex V. ClarJi, R. & R. C. C. 358. Idem sonans.] — The name of John M'Nicoll, signed to a forged instrument, was in the setting out of the forged instrument in the indictment written John M'Nicole :— Held, no variance. Digitized by Microsoft® 663 CEIMINAL l.A\\— Indictment. 664 liefj. V. nihon, 2 C. & K. 527 ; 1 Den. C. CI. 284 ; 2 Cox, C. C. 426 ; 17 L. J., M. C. 82. The question, whether the name of a prose- cutor, as set forth in an indictment, and the name as it appears in evidence, are idem sonans, is a matter of fact which is for the jury ; and where it is reserved as a question of law, the court cannot say that words spelt differently are the same in sound. Rty. v. Davics, 2 Den. C. C. 231 ; T. & M. 557 ; 20 L. J., M. C. 207 ; 15 Jur. 546. Esquire.] — The prosecutor was termed in the indictment J. N. B. esquire : it was proved that his name was J. N. B. , but no evidence was given that he was an esquire : — Held, that the court would take notice that esquire was an addition, and not part of the name, and that it was im- material that such addition should be proved as laid. Reg. v. Keys, 2 Cox, C. C. 225. Unbaptized Cliild.] — A child not named is a proper description in an indictment for ill-treat- ment of a child that has not acquired a name by baptism or usage, ifei/. v. Waters, 2 C. & K. S64 ; T. & M. 57 ; 1 Den. C. C. 336 ; 18 L. J., M. C. 50 ; 13 Jur. 130. But not baptized would be insufificient. Jb. Illegitimate Child.] — A bastard must not be described by his mother's name till he has acquired that name by reputation. Hex v. Clark, 1 M. C. C. 358. The deceased was an illegitimate child twelve days old, and it was not even suggested that it had been baptized, but the prisoner, its mother, had said that she should like to have the child named Mary Anne, and on two occasions af ter- waids called the child Maiy Anne, and on another occasion Little Mary. The prisoner's master, who was the father of the child, had stated to one of the witnesses for the prosecution that he was a Baptist. The indictment alleged the child to be " a certain female child, whose name to the jurors was unknown." The prisoner was convicted, and the judges held the convic- tion to be right. Rex v. Smith, 6 C. & P. 151 ; 1 M. C. C. 402. An indictment charged the murder o± Jiliza Waters. The deceased was the illegitimate child of the prisoner, whose name was Ellen Waters ; and a witness said on the trial—" The child was called Eliza; I took it to be baptized and said it was Eleanor Waters' chUd : "—Held, that it was not sufficient proof Jihat the sumame^of the deceased was Waters. 250 ; 1 M. C. C. 457. laid as the goods of G. T. E., Lord D., without styling him Baron D., although the more proper way to describe a peer is by his christian name, and his degree in the peerage, as duke, earl, baron, or the like. Reg. v. Pitts, 8 C. & P. 771. In an indictment for stealing the goods of a peer, it is necessary to describe him by his chris- tian name and title : describing him by the latter only, as the Earl Cornwallis, is insufficient. Reg. V. Caley, 5 Jur. 709. A. and B. were tried on an indictment charg- ing them with having assaulted the gamekeeper of George William Frederick Charles, Duke of Cambridge. At the trial, none of the witnesses could prove the christian names of the duke, but there was evidence that George William were two of his names, and that it was believed there were others : — Held, that the court was not bound, and was perfectly right in refusing to amend the indictment, by striking out the names of Frederick Charles ; and that as there was no amendment, and no evidence of the duke's chris- tian names, A. and B. were entitled to acquittal. Reg. v. Frost, Dears. C. C. 474 Cox, 0. C. 526 ; 3 C. L. B. 665 ; 24 L. J., M, 116 : 1 Jur.,N. S. 407. an ; 6 C. ]3. Description of Property or Instrument. Rex V. Waters, 7 C, & P. Statute.]— By 14 & 15 Vict. c. 100, s. 7, whcn- ecer it shall he necessary to make any averment in any indictment as to any instrujnent, wliether the same consists wholly or in part of writing, 2Jrint, or figures, it shall le sufficient to describe sxich insti-ument by any name or designation by which the same may be usually known, or by the purjyort thereof, tvithout setting out amy copy or facsimile of the whole or any part thereof. By s. 5, in any indictment for stealing, cin- bezdi7tg, destroying or coticealing, or for obtain- ing by false pretences any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, with- out setting out any copy or facsimile thereof, or otherioise describing the same or the value thereof. . , . , .^ , ,, By s. 18, in every indictment in whicli a snalC be necessary to make any averment as to any motley, or any note of the Rank of England, or any other bank, it shall be sufficient to dewrihe such money, or batik note, simply as money with- out specifying any particular coin or bank note; and such allegation, so far as regards the^ des bil Peers 1- A peer of Ireland cannot sue or pro- secute by his name of dignity, but must be described by his proper name, with the addition of his degree and title. Rex r. (rraham, 2 ^In^indicta'e'nt for manslaughter described the deceased, who was a peer of I^fl^^^'^J, ^f ".^V Baron M. of C, in the county of E., ^^,^}'''^^^^ of the united kingdom caUed Ireland. It was proved that H. was his <=i^"!!i^^ "?,7,'='.;fi- z! iamily surname, and Baron M, &c. his titlc^ nSd no variaAoe, and that the court was not bound to Jonstruek. S. to be one christian name. Bex V. Rrinklett, 5 C. & P. 416. In an indictment for larceny of goods the pro- which stwh amount icas composed, or of the par fieular nature of the lank note, shall not be proved; and in eases of embezzlement and ob- ^ ■ ■ bank notes by false pretences. roin or bank note may hate been delivered to him in order that some part of the value thereif .should be returned to the party delivering the same, or to any other person, and stick part xlmlL have' been returned accordingly. Tin or Iron. 1— In an indictment for receiving ^^^^..^^ , -,, „„^c™„vbp stolen tin, ingots of tin are properly desciibed as perty of a peer who is a baron,^te ^P^ods^-y be.J^^olen^^ 665 CEIMINAL IjAM— Indictment. 666 so many pounds weight of tin. He//, v. Mans- field, Car. & M. 140. So it would be proper to describe a bar of iron as so many pounds weight of iron. lb. Particular Name acquired.] — But if an article has obtained, in common parlance, a particular name of its own, it would be wrong to describe it by the name of the material of which it is composed ; thus, it would be a misdescription to describe cloth as so many pounds weight of wool, or sovereigns as so many ounces of gold. n. Mixture,] — Substances mechanically mixed should not be described " as a certain mixture consisting of, &o.," but by the names applicable to them before such mixture. Secus, with regard to substances chemically mixed. Reg. v. Bond, 1 Den. C. C. 517. Bank Notes.] — Bank notes are properly de- scribed in an indictment for larceny as mpney, although at the time they were stolen they were not in circulation, but were in the hands of the bankers themselves. Reg. v. Wost, Dears. & B. C. C. 109 ; 26 L. J., M. C. 6 ; 2 Jur., N. g. 1123. Instruments — Setting out.] — Instruments need not be set out in an indictment, except where it is material for the court to see that they fall within a particular description. That is not the case where a false pretence is charged. Jteg. v. CotiUon, T. & M. 332 ; 1 Den. G. C. 592 ; 19 L. J., M. C. 182 ; 14 Jur. 557. In an indictment for publishing an obscene book, it is not sufficient to describe the book By its title only, for the words alleged to be obscene must be set out ; and if they are omitted, the defect will not be cured by a verdict of guilty, and the indictment will be bad either upon arrest of judgment or upon error. Bradlaugk v. Meg., 3 Q. B. D. 607 ; 38 L. T. 118 ; 26 W. E. 410— C. A. Reversing 2 Q. B. D. 569 : 46 T.. J., M. C. 286. mortgage Deeds not Goods and Chattels.] — ^An indictment for burglary charged an intent to steal goods and chattels. The jury found that the prisoner broke into the house with intent to steal certain mortgage deeds. The mortgage deeds were valid subsisting securities for money which the prosecutor had advanced to the prisoner : — Held, that they could not properly be described as goods and chattels, and that the indictment, was not proved. Reg. v. Poioell, 5 Cox, C. C. 326 ; 2 Den. C. C. 302 : 21 L. J.. M. C. 78. 14. Valtte. Statutes.]— By 14 & 15 Vict. c. 100, s. 24, no indictmentfor any offence slianhelieldiTisiifficient for loant of the ntatemcnt of the value or price of any matter or thing, or the amount of damage, injury or y)oil, in any case ii'here tlie ralue'or j>rice, or the amount of damage, injury or spoil, in not of the essence of the offence. By s. 5, in any indictment for stealing, cm- hezzUng, destroying or concealing, or for obtain- "'!!■ T>y false pretences, any instrument, it is ■unnecessary to describe the value thereof. Guilder.] — The word "guilder" is cufficiently an English word to justiJ^ its use in an indict- ment as a, translation of the Polish word " zlotych," which is also called a guilder and a florin. Rex v. Harris, 7 C. & P. 416. Specific Sum Due under a Levy.] — Where a count stated that the defendant made an assault upon a person who was in lawful possession of goods, under a levy for a specified sum of money for arrears of assessed taxes, with intent unlaw- fully to force him out of possession : — Held, that it was necessary to prove that the specific sum was due, although no sum need have been stated. Rer V. Ford, 4 N. & M. 451. Thing Stolen must be of Some Value.] — Although to make a thing the subject of an indictment for larceny, it must be of some value, and stated to be so in the indictment, yet it need not be of the value of some coin known to the law, that is to say, of a farthing at the least. Rex: V. Morris, 9 C. & P. 349. See 14 & 15 Vict, c. 100, s. 5. When Value Essential.] — Where value is essential to constitute an offence, and the value is ascribed to many articles collectively, the offence must be made out as to every one of those articles, the grand jury having ascribed that value only to all those articles collectively. Rex V. Forsyth, B. & E. C. C. 274. 15. CONTKA PACEM and CONTBA FOBMAM Statuti. statute.]— By 14 & 15 Vict. c. 100, s. 24, no indictment for any offence shall be held insuf- ficient for want of the averment of any matter vnneoessary to be proved, nor for the omission of the words " against thepeace^ ' nor for the insertion of the words " against the form, of the statute," in- stead of" against the form of the statutes," or rice versa, nor for the want of a proper and formal conclusion. The conclusion to a count "contra formam statuti," is now, by 14 & 15 Vict. c. 100, s. 24, no longer necessary. Castro v. Reg., 6 App. Cas. 229 ; 50 L. J., Q. B. 497 ; 44 L. T. 350 ; 29 W. E. 669 ; 45 J. P. 452 ; 14 Cox, C. C. 546— H. L. (E.). Before this Enactment.] — Where an act of parliament does not create an offence, but alters the punishment for an offence at common law, it is not necessary that the indictment shQuld conclude contra formam statuti. Williams v. Reg. (in error-), 7 Q. B. 250 : 14 L. J., M. C. 164 ; 10 Jur. 155. An indictment preferred at the assizes under the 7 & 8 Vict. c. 2, for a crime committed on the high seas, need not conclude contra formam statuti. Reg. v. Serra, 2 C. & K. 53 : 1 Den. C. C. 104. Where a statute declares an offence and awards a punishment, and by a subsequent act the punishment is altered, the indictment for such offence should conclude against the form of the statutes. Reg. v. Adams, Car. & M. 299. The omission of contra formam statuti in an indictment for a statutable offence was good ground for an an-est of judgment, and was not cured by 7 & 8 Geo. 4, c. 64, ss. 20, 21. Reg. v. Radeliffe, 2 M. C. C. 68 ; 2 Lewin, C. C. 57. Digitized by Microsoft® 667 CEIMINAL 'LA^Y— Indictment. 668 It was no objection to a conviction of man- slaughter on an indictment for murder that the indictment did not conclude contra formam statuti. Sex v. Chatburn, 1 M. C. C. 403. In an indictment for an offence at common law, a conclusion of c&ntra formam statuti might be rejected as surplusage. Hex v. Matkeim, 6 T. R. 162 ; Nolan, 202. It is an ofEence at common law to obstruct the execution of powers granted by statute, and an indictment for such ofEence need not, and ought not, to conclude contra formam statuti. Ilii.r v Smith, 2 Dougl. 441. If one statute subjects an ofEence to a pecuniary penalty, and a subsequent statute makes it felony, an indictment for the felony concluding against the form of the statute (in the singular number only) is right. Bex v. Pim, E. & K. C. C. 425. When Copies of Statute Differ.] — Where an indictment set oat the title of an old statute agreeably to RufEhead, which differed from a copy of the act printed by the king's printer, the court refused to direct a nonsuit without proof of an examination of the parliament rolls. Ileal V. Barnett, 3 Camp. 344. 16. Ambudmbnt, when Allowed. Variance hetween Indictment a;iid Documents.] — By 11 & 12 Vict. c. 46, s. 4, after reeiting that whereas u failure if justice frequently tahes place in criminal trials hy reason of variances between ivritings produced in evidence and the recital or setting forth thereof in tlu! indictment or information, and the same cannot now be amended at the trial crcept in cases of misde- meanor, for remedy thereof, it is enacted, that it sliall and may be lawful for any court of oyer and terminer and general gaol delivery, if such court shall see fit so to do, to cause the indict- ment or information for any offence whatever, lolimi any variance or variances shall appear between any matter in writing or in print pro- duced in evidence and tJte recital or setting forth thereof in the in-Hctment or information wliereon the trial is pending, to be forthwith amended in such particular or particulars by some officer of the court, and after such amend- ment ilie trial shall proceed in the same manner in all respects, both with regard to the liability of witnesses to be indicted for perjury and other- loise, as if no such variance or variances had appeared. By 12 & 18 Vict. c. 4.5, s. 10, every court of qeneral or guarter sessiom of the peace, on the 'trial of any offence within its jurisdiction, when- ever any variance or variances shall appear between any matter in writing or in print, pro- duced in evidence, and the recital or sett'tng forth thereof in the indictment, shall have the same power in all respects to cause the indict- ment to be amended, which is given to coui-ts oj oyer and terminer and general gaol delircrij, with regard to offences tried before such lad- mentioned courts by virtue of the 11 S,- 12 Vict. r.,46, s. 4, and, after such ammdment the trial shall proceed in the same manner in all respects, both with r.egard to the liability of witnesses to be indicted for perjury and otherwise, as 'if no variance or variances had appeared. — By 14 & 15 Vict c. 100, s. 1, whenever on tht trial of any indictment for any felony or misde- meanor there shall appear to be any variance between the statement in such indictment, and the evidence offered in proof tlicreof, in the name- of any county, riding, division, city, borough, town corporate, parish, township, or place men- tioned or described in any such indictment, or in the name or dcscriptioji of any person or persons, or a body politic or corporate, therein stated or alleged to be the owner oroumers ofanyjjroperty, real or personal, which shall form the subject of any off'ence charged therein, or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be in- jured or damaged, or intended to be injured or damaged by tlie commission of such offence, or in tile christian name or suvTiamc, or both christian name and surname, or other description whatso- ever of any person or persons wliomsoever therein named or described, or in the name or descrip- tion of any matter or thing whatsoever therein named or described, or in the oivnership of any property named or described tlierein, it shall and may be lawful for the coui't before which the trial sliall be had, if it shall consider such variance not material to the merits of tlie case^ and tliat the defendant cannot be prejudiced tlutreby in his defence on such merits, to order such indictment to be amended, according to the proof, by some officer of the court or other person, both in that part of the indictment where such rariatice occurs and in every other part Of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury, as such court shall think reasonable ; And after any such ampidmemi the trial shall proceed, whenever the same shall be proceeded with,, in the same manner in all respects, and with the same consequences, both with respect to the liability of toitnesses to be indicted for per- jury and otherwise, as if no such variance liad occurred; and incase such trial sliall be liad at Nisi Prius, tlie order for the amendment sliall be indorsed on the postea, and returned together with the record, and tliereupon such papers, rolls, or other records of tlie court from which such record issued as it mMy be necessary to amend, sliall be amended accordingly by tlve proper officer, and in all other eases the order for the amendment sliall either be indorsed on the indictment or shall be engrossed on parch- ment, and filed, together with the indictment, among the records of tlie court : Provided, that in all such cases where the trial shall be so postponed as aforesaid it sliall be lawful for such court to respite the recog- nizances of the prosecutor and witnesses, and of the defendant, and his surety or sureties, if any, accordingly, in which case the prosecutor ana witnesses sliall be bound to attend to prosecute and elite evidence respectively, and the defendant ----- ' ■ ttend to be tried at the time shall be bound to attend to l. and place to which such trial shall be postponed, „Mout enterinn into any fresh recognizances for such and the same manner as ?/ Variance hetween Indictment and Evidence.] Digitized by IVficrosoft® tlieywere ori,,nmVy bound by their recogmzances to appear or prosecute or !/«/'/';'f»ff,f',j i tinJ and place to which such trial shall liaiv *X:frlXl;. that wl.re any such trial shall be to be /'«^W''''.'?''''""«"§ the word ,„T?^^<. I *^^ ^°^^ nineteen and sixpence " and that, by s. 18, the indictment so amended was proved. 7;.^. v. GumlU, 2 L. R., S c 1 42 L. J., M. C. 7 ; 27 L. T. 692 ; 21 W. R. 299. ' fn,r:^=f ""t^*^ "l Ca"iage-way.]_indictment foi obstructing a footway leading from A. to G. ihe footway was for half a mile fi-om its com- mencement, as described in the indictment, a carnage-way ; the obstruction was in the pLrt beyond :-Held, that this was a misdescription, Which ought to be amended under 14 & 15 Vict ?■ ^^\l- \- ^^"3- ^- ^ix'-g", 3 El. & Bl. 734 ; 23 L. J., M. C. 172 ; 18 Jur. 1052. Description of Prisoner.]— A woman was charged with the murder of her husband. In the indictment she was described as " A., the wife of J. 0., late of the parish of S., in the county of \V labourer." The judge ordered this to be amended by striking out the word " wife " and inserting the word " widow." Beg. v. Orchard, 8 C. & P. 565. Effect of Amendment— Court of Appeal.]— When an indictment is amended at the trial, the court of appeal cannot consider it as it originally stood, but only in its amended form. Men v. Webder, L.- & C. 77. 17. Nolle Pbosequi. A nolle prosequi can only be entered by the authority of the attorney-general. Beg. v. Dunn, 1 C. & K. 730 ; S. P., Mlworthy v. Bird. 9 Moore, 430 ; 2 Bing. 258. Where, in an indictment for perjury, the attorney-general enters a nolle prosequi on the part of the crown, he does so on his own respon- sibility, and the Queen's Bench will not inferfere. Beg. V. Allen, 9 Cox, C. C. 120. An attorney-general is at liberty, after having entered a nolle prosequi on an indictment, to file an ex-officio information for the same offence ; and the pendency of an indictment or an infor- mation is not a good plea to an information subsequently filed against the same party for the same offence. Beg. v, Mitchel, 3 Cox, C. C. 93. 18. Joinder aw Couxts, &c. 'Money" for Sum Stolen.] — A man was Digitized by Joinder of Counts — Arrest of Judgment] — If several felonies are charged in the same indict- ment, it is not objectionable, either upon de- murrer or in arrest of judgment, for on the face of the indictment eveiy count imports to be for a different offence. An'on., 2 Leach, C. C. 1105, n. But if it appears before plea, or the jui-y is charged, that they aj'e separate offences, it is usual to quash the inmctment, lost it should con- found the prisoner in his defence, or prejudice him in his right of challenge. /*. It is no objection in arrest of judgment that the indictment contains several charges of the same nature in the different counts. Yovng v. Be.c Qui error}, 3 T. E. 98. And see Bex v. Toiole, 2 Marsh. 466. It is no gi'ound in arrest of judgment, after a Microsoft® 673 CRIMINAL -LAN^— Indictment. 674 conviction for a felony, that the indictment also contains a count for a misdemeanor. Reg. v. Ferguson, Dears. C. C. 42T ; 6 Cox, C. C. 454 ; 24 L. J., M. C. 61 ; 1 Jur., N. S. 73. It is no gi'ound of objection to an indictment in arrest of judgment that it contains several counts for distinct felonies. Reg. v. liegwood, L. & C. 451 ; 9 Cox, C. C. 479 ; 33 L. J.. M. C. 133 ; 10 L. T. 464 ; 12 W. R. 764. Joinder — ^What may be.] — Two indictments for the same ofience, one for the felony under a statute, and the other for the misdemeanor at common law, ought not to be preferred or found at the same time. Rex v. Doran, 1 Leach, C. C. 538. If one endeavours to commit two separate offences, a count in an indictment charging that endeavour may contain those two offences. Rex V. Fuller. 1 B. & P. 181. Where Several Parties to Indictment.] — ■ On an indictment against two, charging them with a joint offence, either may be found guilty ; but they cannot be found guilty separately of separate parts of the charge. Rex v. Hempstead, E. & E. C. C. 841. And if they are found guilty separately, upon a pardon or nolle prosequi as to the one who stands second upon the verdict, the judgment may be given against the other. Ih. If two men arc indicted, and one of them ap- pears to be innocent and the other guilty, but the prosecutor cannot identify them respectively, both must be acquitted. Rex v. Richardson, 1 lieach, C. C. 387. Non-joinder— Two Indictments— Practice.]— Where a person stole two pigs belonging to the same person at the same time, and after being convicted and punished for stealing one of the pigs, was indicted at a subsequent assize for stealing the other :— Held, that this might legally be done ; but semble that in such a case, the second prosecution ought not to be proceeded with. Reg. v. Rrettell, Car. & M. 609. 19. When Prosecution put to Election. In Cases of Misdemeanor.] — ^A person may be charged with several offences of the same nature in the same indictment, and the judge will not, in cases of misdemeanor, require the prosecutor to coniine himself to one offence. Rex v. Jones, 2 Camp. 131. ) Joinder Embarrassing Prisoner.] — The proper course to pursue, when a joinder of counts has a tendency to embarrass a prisoner in his defence, is to apply to the judge either t,o quash the in- dictment or to compel the prosecutor to elect on which count he will proceed. Req. v. Heiiwood L. & C. 451 ; 9 Cox, C. C. 479 ; 33 L. J., M C 133 ; 10 L. T. 464 ; 12 W. E. 764. Same Offence Charged Capitally and as a Mis- demeanor.] — If two bills of indictment are pre- ferred for the same offence, the one charging it capitally, the other as a misdemeanor, and both are found, the judge will put the party upon his election which to go upon, and direct an ac- quittal on the other. I!e3[i v. Smith, 3 0. & P. 412. If an indictment contains a count for robbery! and a count for an, assault with intent to rob, the judge will put the prosecutor to his election. Rex v. Gough, 1 M. & Bob. 71. Same Transaction — Two Indictments.] — A prosecutor cannot maintain two indictments for misdemeanor for the same transaction : he must elect to proceed with one and abandon the other. Rex V. Britton, 1 M. & Eob. 297. A. was indicted for shooting at B., a game- keeper ; there being another indictment against . A. for night-poaching : — Held, that although both indictments related to the same trans- actions, yet these were offences quite distinct from each other, and that the prosecutor ought not to be. put to hjs election to go upon one in- dictment and to abandon the other. Rex v. Handler/, 5 C. & P. 565. On a count for uttering several forged receipts, the court will not put the prosecutor to his elec- tion on which receipt to proceed, if they be all uttered at the same time. Rex v. Thomas, 2 East, P. C. 934. Where a prisoner w^as indicted in one count for stealing coal from the mine of H. J. G., and in the same count for stealing coal from the mines of thirty other proprietors, and it appeared that all the coal so alleged to be stolen had been raised at one shaft : — Held, that the prosecutor could not be called upon to elect on what charge he would go to the jury. Reg. v. Bleasdale, 2 C. & K. 765. See also eases ante. Larceny. On an indictment for rape charging the pri- soner both as principal in the first degi'ee, and as an aider and an abettor of other men in the rape,' evidence may be given of several rapes on the same woman, at the same time, by the prisoner and other men, each assisting the other in turn, without putting the prosecutrix to elect on which count to proceed. Rex v. Follies, 1 M. C. C. 354. Principal and Accessory.] — Where an indict- ment contains two counts, the first charging the accused person as principal in a felony, the second charging him as accessory after the fact to the same felony, the prosecution must elect upon which count they will proceed. Reg. v. Brannon, 14 Cox, C. C. 394. In what Cases.] — When there are counts in an indictment for forging a bill, acceptance, and indorsement, the prosecutor is not driven to elect on which he will proceed. R^x v. Young, Peake's Add. Cas. 228. If two are indicted for a conspiracy and for a libel, and at the close of the case for the prose- cution, there is evidence against both as to the conspiracy, but no evidence against one of them as to the libel, the judge will put the prosecutor to elect which charge he will go upon before the defendant's counsel enters on the defence. Reg. V. Murphy, 8 C. & P. 276. If two persons are jointly indicted for obstruct- ing a highway, and on the evidence no joint act of obstruction appears, the judge will, as soon as the case for the prosecution is closed, put the prosecutor's counsel to elect which of them they will proceed against, and then take an acquittal for the other. Rex v. Lynn, 1 C. & P. 528. In indictments under il & 12 Vict. c. 46, s. B, there may be as many counts charging a felonious receiving as there are counts charging stealing ; and the prosecutor cannot be put to his election on what count or counts he will proceed. Reg. Digitized by Microsoft® 675 CRIMINAL hAYi— Indictment. 676 V. Beeton, 1 Den. C. C. Hi ; 2 Cox, C. C. 451 ; T. & M. 87 ; 2 C. & K. 960 ; i New Sess. Gas. 60 ; 18 L. J., M. C. 117 ; 13 Jur. 394. An mdiotmeut contained counts charging various misdemeanors, amongst them counts for conspiracy. There being evidence to go to the jury upon the conspiracy only, the prosecution was made to elect upon which count the case should be left to the jury. Reg. y. Braun, 9 Cox, C. C. 284. Certain wharfingers and their servants being indicted in various counts for conspiracy to de- fraud, by false statements as to goods deposited with them, and insured by the owners against fire ; one set of counts being laid with reference to a fire occurring on the 7th of June, 1864, and another, with reference to a fii-e occurring on the 25th of November, 1864 : — Held, that the prose- cution must elect on which of the two trans- actions, in the first instance, to rely. Beg. v. Barry, 4 F. & F. 389. When an indictment contains counts for offences within the Admiralty jurisdiction, and others for ofEences on the high seas, the prosecu- tion will not be put to their election as to which set of counts they will proceed upon. Reg. v. Jones, 11 Cox, C. C. 393. A prisoner being charged on several counts ivith setting fire to a building described as in the occupation of different persons, also with setting fire to goods in a building so described, the pro- secutor was not put to elect, as it might be all one act. Reg. v. Davis, 8 F. & F. 19. In a case of arson, the indictment contained five counts, each of which charged a firing of a house of a different owner. It was opened, that the five houses were in a row, and that one fire burnt them aU. Upon this opening, the judge would not put the prosecutor to elect, as it was all one transaction. Reg. v. Truenan, 8 C. & P. 727. Siscretion of Judge.] — It is in the discretion of the judge whether he will allow several felonies to be given in evidence under one in- dictment ; where they are, in fact, so mixed as not to be separated without inconvenience, it will be allowed. Reg. v. Hinley, 2 M. & Kob. 524. The application for a prosecutor to elect is an application to the discretion of the judge, founded on the supposition that the case extends to more than one charge, and may therefore be likely to embarrass the prisoner in his defence. Beg. v. Trusman, 8 C. & P. 727. Conviction on Count Elected.]— A party was tried upon an indictment which contained two counts, one for embezzlement, and the other for larceny as a bailee. At the close of the case for the prosecution, it was objected that the mdict- ment was bad for misjoinder of counts, and the court thereupon directed the counsel for the crown to elect upon which count he would pro- ceed, the counsel for the prisoner contending that such a course was inadmissible. The counsel for the crown elected to proceed upon the second count, and on that count the prisoner was convicted :— Held, that the conviction was rieht Reg. v. Uulman, L. & C. 177 ; 9 Cox, C. C. 201 ; 8 Jur., N. S. 1082 ; 6 L. T. 474 ; 10 W. E. 718. LAECENY 20. Time and Mode op Kaisino Formal Objections. Statute.]— By 14 & 15 Vict. c. 100, s. 25, every ohjection to any indictment for any formal de- fect appare7it 07i t!te face thereof shall be taken by demurrer or motion to gnash such indictment before the jury shall be sworn, and not after- wards ; and every court before whom any svck objection shall be taken for any formal defect may, if it be thought necessary, cause the in- dictment to be forthwith amended in such par- ticular by some officer of the court or other per- son, and thereupon the trial shall proceed as if no such defect had appeared. Aider hy Verdict. ] — A defendant in an indict- ment cannot, after plea, take advantage of any defect which is aided after verdict by 7 Geo. 4, c. 64, s. 20 ; the only mode of taking advantage of such defects being by demurrer. Req. y. Ellis, Car. & M. 564 ; S. P., Reg. v. Law, 2 M. & Bob. 197. An indictment charged the commission of the offence " in the 10th year of our Sovereign Lady Victoria," not saying " of the reign : " — Held, that the objection, if otherwise valid, was cured by 7 Geo. 4, c. 64, s. 20. Broom v. Reg., 3 Cox, C. C. 49 ; 12 Q. B. 834 ; 17 L. J., M. C. 152. Counts under 2 & 3 Will. 4, c. 123, s. 3, stating that plates had engra,ved on them, in the Polish language, a promissory note for payment of money, to wit, for the payment of five florins, without stating the value, were good after ver- dict. Rex V. Warshaner, 1 M. C. C. 466. Describing a foreign note wholly in the Eng- lish language is not sufficient ; but this objection is cured after verdict by 7 Geo. 4, c. 64, s. 21. Rex V. Harris, 7 C. & P. 429. An indictment charged the prisoner with un- lawfully receiving goods which had been obtained by false pretences well knowing that the goods had been so obtained, but omitted to set out what the particular false pretences were :— Held, that the objection not having been taken before plea was cured by the verdict of guilty. Reg. v. Goldsmith, ih. P., C. C. 74 ; 42 L. J., M. C. 94 ; 28 L T 881 ; 21 W. E. 791. See also Hamilton V. Reg. (in error), 9 Q. B. 271 ; 2 Cox, C. C. 11 ; 16 L. J., M. C. 9 ; 10 Jur. 1028. III. TEIAL. 1. In Case of Larceny.]— <9cc ante. and Embezzlement. ^. Digitized by Microsoft® Venue. a. Indictment, 677. b. Clffences, -where Triable, 678. c. Changing Venue, 683. 2. Arraignment, 685. 3. Postponing or Adjourning Trial, 686. 4. Pleas. a. Pleas in Abatement, 690. b. Special Pleas, 691. c. Withdrawing Plea, 691. . d. Autrefois Acquit and Autrefois Convict. i. Validity, 692. ii. Practice, 697. 5. Recognizances. _ a. Entering into, 698. b. Estreat, 701. e. Forfeiture and Discharge, 703. d. OfBaU. i. In Actions.— i5fe« Bah. ii. In Criminal Proceedings. — l^ee infra. Bail. e. ToKeepthe Peace.— &f "'./'•«■ Articles or Peace.. 677 CRIMINAL LAW— 2'rJaL 678 (i. Gommmioiu and Gaol Ddivery, 706. 7. Other Points. a. Bringing up Prisoner, 708. J. Standing in the Dock, 708. c. Beading Indictment, 708. d. Separate Trial, 708. I'. Eight of Acquittal on Indictment of Several, 709. /. Illness of Prisoner during Trial, 709. g. Trial on a Verdict in a Civil Case, 709. h. Money and Chattels of Prisoners, 710. ?'. Contempt of Court, 710. j. Affidavits, 711. h Death of Parties, 711. ?. The Prosecution, 711. D. A: il. 761 ; 13 L. J., M. C. 33 ; 7 1. Vbxue. a. Indictment. Statute.]— By U & 1.5 Vict. u. 100, s. 23, it xliall not be necessary to state any renue in the iody of any indictment, hut the county, city or other jurisdiction named in the margin thereof ghall be talien to be the venue for all the facts ftated in the body of such indictment : prodded, that in cases tohere local descrijjtion is or shall be required, such local descrijit ion shall be given in the body of the indictment ; Provided also, that lohere an indictment for an offence, committed in the county of any city or town corporate, shall be preferred at the as- sizes of the adjoining county, such county of the city or town shall be deemed the renue, and may i;itker be stated in the margin of the indictment, jvith or unthout the name of the county in ivhick the offender is to be tried, or be stated in the body of the indictment by icny ofrenne. And by s. 24, no indictment for any offence shall be held insufficient for want of a proper or perfect renue. FariBh — Addition of.] — It \A-as sufficient, to allege a county as a venue in an indictment, without the addition of the parish, vill or other place. Reg. v. Oompert:, 14 L. J., M. C. 118 ; y Jur. 401. At the Central Criminal Court, -a, person was indicted for a burglary in a house, which was stated in the indictment to be in the " parish of W." The prosecutor stated that the correct name of the parish was St. Mary W. In 4 & 5 Wil!. 4, c. 36, s. 2, this parish is called " the parish of W. : "—Held, sufficient. Peg. v. St. John, 9 C. .v: P. 40. Aider by Verdict.] — Where, in an indictment, after describing the defendant as " of the parish of A. in the county of B.," the offence is laid to have been committed " at the parish aforesaid," omitting any statement of county, this statement of the venue, if defective, was cured by 7 Geo. 4, c. 60, s. 20, after verdict, the case having been tried by a jury of the county first named. Meg. V. Albert, D. & M. 89 ; 5 Q. B. 37 ; 12 L. J., M. C. 117 ; 7 Jur. 741. In an indictment for a misdemeanor, a count containing no statement of venue, either by reference or otherwise, was bad at common law after verdict, though a venue was stated in the margin of the indictment. Reg. v. 0' Connor, 5 Q. B. 16 ; Jur. 719. Effect of, on. Indictment.] — The statement of venue in the margin implies only that the in- dictment is found by a grand jury of the county named, not (as in civil cases) that the complaint is laid as arising within the county. lb. b. Offences, wiere Triable. In Boroughs.] — If a felony is committed in that part of the county of a town which has been added to it by the Boundary Act, 2 & 3 WiU. 4, c. 64, and the Municipal Corporations Act, 5 & 6 Will. 4, ..^ 76, it is triable in the county of the town. Pe.r v. Piller, 7 C. & P. 337. Where an offence is committed in a borough which is situate partly in one county and partly in another, the offence is triable in either county, under 14 & 15 Vict. o. 55, s. 19. Reg. v. Gallant, 1 F. & F. 57. Since the 5 & 6 Will. 4, c. 76, all offences com- mitted in Bristol, and the cities and towns named in schedule C, are triable at the assizes for Gloucestershire, and the other counties named in that schedule ; and the jurisdiction of the assizes is not affected by the gi-ant of a recorder and a quarter sessions to such cities or towns. Reg. V. Soldeii, 8 C. k. P. 605. Offence on Sea near Shore of County.] — Three were indicted for feloniously cutting and wound- ing. The venue was laid in Glamorganshire, and the indictment was preferred and tried at the assizes for that county. The offence was com- mitted on board an American ship anchored in the Penarth Boads, in the Bristol Channel, three quarters of a mile from the coast of Glamorgan- shire, at a spot never left dry by the tide, but within a quarter of mile from the land which is left dry. The place in question is situated between the shore of the county of Glamorgan and two islands, which islands have always been treated as part of the coimty of Glamorgan. It was also about ten miles from the opposite shore of Somersetshire. The Penarth Eoads are ninety miles from the mouth of the Channel : — Held, that the part of the sea where the vessfel was when the offence was committed formed part of the body of the county of Glamorgan. Reg. V. Cunniwiliam, Bell, C. C. 72 ; 8 Cox, C. C. 104 ; 28 L. J., iVt. C. 66 : 5 Jur., X. S. 202 ; 32 L. T., 0. S. 287 ; 7 W. R. 179. Central Criminal Court.]— By 9 & 10 Vict. c. 24, s. 3, every writ of certiorari for removing an indictment from the Central Crimi^ial Court into the Court of Queen's Bou-h shall specify the county or Jurisdiction in which the same shall be tried ; and a jury shall be s^tmmoned, and the trial proceed in the same maimer in all respects as if the indictment had beeii originally preferred in that county or jurisdiction. By what Jury Tried.]— An indictment for libel was preferred in the Central Criminal Court, the publication being laid as having taken place " at the parish of St. M., in the county of Middlesex, within the jurisdiction of the. Central Criminal Court." The defendant having removed it by certiorari, it came on to be tried at nisi prius, in Middlesex, when he withdrew his plea Digitized by Microsoft® 679 CRIMINAL I.A.W— Trial. 680 of not guilty : — Held, that there was a sufficient venue assigned to the material fact. Beif. v. Gregory, 7 Q. B. 274 ; 14 L. J., M. C. 82 ; 9'jur. 593. Before 9 & 10 Vict. c. 24, s. 3, an indictment alleging the offence to have been committed at the parish of M., in the county of Middlesex, and within the jurisdiction of the Central Criminal Court, was found at the Central Criminal Court, and removed by certiorari : — Held, that the case was properlv tried by a Middlesex jury." Meg.Y. Hunt, 10 Q."B. 925 ; 17 L. J., M. C. 14 ; 11 Jur. 822. Jurisdiction.] — See ante, Jurisdiction. Near Boundaries of Adjoining Counties.] — By 7 Geo. 4, c. 64, s. 12, for the more effectual prosecution of offenees eommitted near the boun- daries of cmcjities, or jiartly in one county and partly in another, it is enaeted, that luJiere any felony or misdemeanor shall Vc eommitted on the bou7idary or boundaries of two or more counties, or within the distance of 500 yards of any such boundary or boundaries, or sliall be begun in one county and eumpleted in another, ecery sucJi, felony or misdemeanor may be dealt with , inquired of t ried, determined and punislied in any of the said counties, in the same manner as if it had been actually and wholly committed therein. How measured.] — This means a distance of 500 yards measured in a direct line from the border, and not 500 yards by the nearest road. Beg. V. Wood, 5 Jur. 225. In what Cases.] — An iudictment at quarter sessions for the borough of S., stated that A., late of the parish of M., in the county of N., and in the borough of S., at the parish aforesaid, in the borough aSoresaid, committed an assault. The marginal venue was '' borough of S." The parish is entirely in the county of N., the rest of the borough in the county of L. The defendant removed the iudictment by certiorari, and a venire was awarded into the county of L., where he was tried and convicted. The offence was committed in a part of the parish which is in the borough, and within 500 yards from the boundary of L. :— Held, that the venue, as laid, was m N. ; and, notwithstanding the proceedings under the certiorari, that the trial was without juris- diction, and judgment was arrested. Reg. f. Mitchell, 2 Q. B. 636 ; 2 G. & D. 274 ; 6 Jur. 505. , , . Held, also, that for the trial to be good m either county, under 7 Geo. 4, c. 64, s. 12, the offence must have been laid and tried in one and the same county. 1 b. A felony committed in a county of a town, the style of which is " town of Kingston-upon-HuU and county of the same town : "—Held, to be . sufficientlv laid in the venue of an indictment tried in the next adjoining county, as " Yorkshire being the next adjoining county to the town and county of Kingston-upon-HuU, to wit, .the venue being imperfect, there being no "county of Kingston-upon-HuU." Reg. v. Grundy, 2 Cox, C C 357. Newcastle-upon-Tyne is a county corporate within 7 Geo. 4, c. 64, s. 12. Errington's case, 2 Lewin, C. C. 278. The 38 Geo, 3, c. 52, s. 2, which relates to the trial of offences in an adjoining county, only applies to cities and towns corporate which are counties of themselves, and not to towns cor- porate which are not counties of themselves. Reg. T. Milner, 2 C. & K. 310. Where an offence, committed within a limited jurisdiction, is tried in the adjoining county, under 38 Geo. 3, c. 52, s. 2, the venue in the margin of the indictment is properly laid in the county where the offence is tried, and there is no necessity for an averment in the body of the indictment to connect the county of the city or town within which the offence is alleged to have been committed with the venue of the county from which the jury comes. Reg. v. StoJies, 4 Cox, C. C. 451. During Journeys or Voyages.] — By 7 Geo. 4, c. 64, s. IS, for the more effectual prosecution of offences committed during journeys from, place to place, it is enacted, that where any felony or misdemeanor shall be eommitted on any person, or on or in respect of any property in or upon any coach, waggon, cart or other carridge lohatemr employed in any journey, or shall be eommitted on any person, or on or in respect of any pro- perty on board any_ vessel whatever employed on any voyage or journey upon any navigable river, canal or inland navigation, such felony or misr demeanor may be dealt with, inquired of, tried, determined and punished in any county, through any part wherecf .mch coach, waggon, cart, car- riage or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanor shall have been eommitted, in the same manner as if it had been actually com- mitted in s^ioh county ; In all cases where the side, centre or other part of any highway, or the side, banli, centre or other part of any such river, canal or navi- gation shall constitute the boundary of any two counties, such felony or misdemeanor may be dealt with, inquired of, tried, determined and punished in either of the said counties, through or adjoining to or by the boundary of any part whereof stioh coach, waggon, cart, carriage or vessel shall have passed, in tlie course of the journey or voyage during which such felony or misdemeanor shall hare been eommitted, in the same manner as if it had been actually com- mitted in such county. In what Cases.] — This enactment is not confined in its operation to the carriages of common carriers or to public conveyances, but if property is stolen from any caniage employed on any journey, the offender may, by virtue of the above section, be tried in any county through any part whereof such carriage shall have passed in the course of the journey during which such offence shaU have been committed Reg, V Sharpe, Dears. C. C. 415 ; 6 Cox, C. C. 418 ; 24 L. J., M. C. 40. .^, ^, . , Where the evidence is consistent with the tact of an article having been abstracted from a rail- way oan-iage, either in the course of the journey through the county of A., or after its arrival at its ultimate destination in the county of B., and the prisoner is indicted in A. under 7 Geo. 4, c. 64 s 13, the case must go to the ]ui-y, who are to 'say whether they are satisfied that the larceny was committed in the course .of the journey or afterwards. Reg. v- -?»«'•'■''. 6 Cox, C. 0. 117. Digitized by Microsoft® 681 CRIMINAL LAW— Trial. 682 The act of stealing must be committed " in or upon the coach," to bring it within 7 Geo. 4, o. 64, s. 13. Shaiye's case, 2 Lewin, C. C. 233. On an indictment for assault, it was proved that the assault was committed in one of the carriages of a train running from Brighton to New Cross, and before the train had arrived at the Three Bridges Station, in Sussex. At that station the prosecutrix left the carriage in which she had been riding with the defendant and rode in another carriage of the same train to New Cross, which is within the jurisdiction of the Central Criminal Court :--Held, that by the joint operation of the 7 Geo. 4, o. 64, s. 18, and 4 & 5 Will. 4, c. 36, s. 2, the indictment was properly preferred and tried at the Central Criminal Court. Her/, v. French, 8 Cox, C. C. 252. Sending Threatening letter.] — The ofienee of .sending a threatening letter may be laid in the county where it is delivered by the post to the prosecutor. Rex v. Fssei; 2 East, P. C. 1125 ; B. P., Bex V. Gldwood, 2 East, P. C. 1120 ; 1 Leaoh, C. C. 142. If a man writes a letter with intent to provoke a challenge, seals it up and puts it into the post- offica in Westminster, addressed to a person in the city of London, who receives it there, the writer may be indicted for this offence in the county of Middlesex. Rex v. Williams, 2 Camp. 505. Uttering Forged Bocuments.J — Putting a let- ter into the Manchester post-office, containing a forged instrument, is an uttering in the county of Lancaster. Perldri's case, 2 Lewin, C. C. 150. Conspiracy.] — An information at common law for a conspiracy between the captain and purser of a man-of-war, for planning and fabricating false vouchers to cheat the crown (which planning and fabrication were done upon the high seas), is well triable in Middlesex, upon proof there of the receipt by the commissioners of the navy of the false vouchers transmitted thither by one of the conspirators through the medium of the post, and the application there of a third person, a holder of one of such vouchers (a bill of exchange), for payment, which he there received. Rex v. Brisac, 4 Bast, 164. Embezzlement. ] — An indictment for embezzle- ment may be laid either in the county in which the money was received, or in the county where the prisoner disowned having received the money. Rex V. Hobson, K. & E. C. C. 56 ; 1 East, P. C. Add. xxiv. ; 2 Leach, C. C. 975. If "a servant receives money for his .master in the county of A. and, being called upon to account for it in the county of B., there denies the receipt of it, he may be indicted for the embezzlement in the latter county. Rex v. Taylor, 3 B. & P. 596. A clerk, whose duty it was to remit at once to his employers in Middlesex all moneys collected by him as their clerk, collected at York, on the 18th of April, a sum of money as such clerk, but never remitted any portion of it. On the 19th and 20th of April he wrote and posted from places in Yorkshire to his employers in Middle- sex letters making no mention of the money so collected, and on the 21st of April he Wrote and posted at Doncaster in Yorkshire to his employers in Middlesex a letter which was intended to make them believe that he had not then in fact collected the money in question. These letters were duly received by the employers in Middle- sex : — Held, that the receipt of the letter of the 21st of April in Middlesex was sufficient to give jurisdiction to try the prisoner in Middlesex. Rcff. V. Rogers ,3 Q. B. D. 28 ; 47 L. J., M. C. 11 ; 37 L. T. 473 ; 26 W. K. 61 ; 14 Cox, C. C. 22. It was the duty of a commercial traveller to remit daily to his employers, who resided in London, the moneys which he collected, without reduction. He, on the 1st and 2nd March, 1878, collected at Newark two sums of money which he did not remit or account for till the first week in April, when one of his employers went to Grantham, where the prisoner resided, saw him and taxed him with receiving moneys and not accounting to them for them. The prisoner then and there handed to his employer a list of moneys he had collected and not accounted for, including the above two sums. There was no evidence that the prisoner returned to Grantham on either of the days, or at what time of the respective days he received tho two ■ sums of money. He was indicted and convicted at the borough of Grantham Quarter Sessions for em- bezzling the above two sums of money : — Held, that the conviction was bad, as there was no evidence of any embezzlement within the borough of Grantham. Reg, v. Treadgold, 39 L. T. 291. A prisoner was a travelling salesman, whose duty it was to go into the county of D. every Monday to sell goods and receive money for them there, and return with it to his master in N. every Saturday. He received two sums of money for his master in D., but never returned to render any account. Two mouths afterwards he was met by bis master in N., who asked him what he had done with the money. The prisoner said he was sorry for what he had done ; he had spent it : — Held, that he was rightly indicted in N., there having been evidence to go to the jury of an em- bezzlement in N. Reg. v. Murdoch, 2 Den. C. 0. 298 ; T. & M. 604 ; 5 Cox, C. C. 360 ; 21 L. J., M. C. 22 ; 16 Jur. 19. False Pretences.]: — An indictment charged a defendant with obtaining, by false pretences, a post-office order. It was proved that the prose- cutor, at the request of the prisoner, transmitted through the post a letter containing a post-office order : — Held, that the defendant was properly tried in the county in which that letter was posted, though it was received by the prisoner in a different county. Reg. v. Jones, 4 Cox, C. C. 198 ; 1 Den. C. C. 551 ; 4 New Sess. Cas. 953 ; 19 L. J., M. 0. 162 ; 14 Jur. 533. A., by means of false pretences contained in a letter written and posted by him in the county of C, received in the same county the money ob- tained by it, which was sent to him by the prose- cutor in a letter. The letter containing the false pretences was received by the prosecutor in the county of the borough of C, and the letter en- closing the money was posted in that county. A. was indicted for obtaining the money by means of the false pretences contained in his letter : — Held, that the venue was well laid in the county of the borough of C. Reg. v. Leech, Dears. C. C. 642 ; 7 Cox, C. C. 100 j 25 L. J., M. C. 77 : 2 Jur., N. S. 428. Digitized by Microsoft® 683 CEIMINAL LAW— rrkZ. One who obtains goods by false pretences in one county, and afterwards brings them into another county, where he is apprehended with them, cannot be indicted for the offence in the latter county, but must be indicted in the county where the goods were obtained. Beq. v. Stanluni 9 Cox, C. 0. 94 ; L. & C. 128 ; 31 L. J., M. C 88- 8 Jur., N. S. 84 ; 5 L. T. 686 ; 10 W. E. 236. On an indictment for obtaining money by a false pretence which was alleged to have been by sending a certain false return of fees to the com- missioners of the Treasury, it appeared that the return was received by them in Westminster, with a letter dated Northampton, and an afladavit sworn there ; and that they, on the faith of it, drew up a minute, which operated as an authority to the paymaster-general to pay a certain amount to the prisoner (as compensation under 7 & 8 Vict. c. 96) at Westminster, the venue laid being Northamptonshire :— Held, that there was reason- able evidence that the false representation was forwarded from Northampton ; that it was if false and fraudulent, a false pretence within the statute ; that in effect the money was obtained by means of the minute, being a mere matter of Tegulatious and not a judicial proceeding ; and that, therefore, the venue was right, and the in- dictment was supported. Ben. v. Coolie, 1 F. & F. 64. Where -a, misdemeanor consists of different parts, as much of the charge as amounts to a misdemeanor in law must be proved in the county in which the venue is laid. Rex v. Buttery, 3 B. & C. 700; 5 D. & K. IU6. Beceiying Stolen Property.] — The half of a bank note which had been stolen during its transit through the post-office from S. in Wilt- shire to Bristol, was afterwards inclosed by the prisoner in a letter addressed to the bankers at S., requesting payment of it. This letter was posted by the prisoner at Bath, and arrived with its contents in due course at S. There was no other evidence of any receipt or possession by the prisoner in Wiltshire : — Held, upon an indictment ior receiving the stolen half note, that he was Tightly tried in Wiltshire, as the possession of the post-office or of the bankers was his possession. Beg. V. ayer. Dears. & B. C. C. 324 ; 26 L. J., M. 0. 192 ; 3 Jur., N. S. 698. o. Ch&ngia.e Venue. In what Cases.] — The court removed an in- dictment from the Central Criminal Conrt, and changed the venue from London to Westminster, where it was a prosecution instituted by the cor- poration of London, for a conspiracy in procuring ialse votes to be given at an election to the office of bridgemaster. Beg. v. Simpson, 5 Jur. 462. Where the court grants a rule to change the venue in an indictment, on the ground that the defendant is unlikely to have a fair trial where it is laid, the court will change it to some other county on the same circuit. Anon., 6 Jur. 131. The court will permit a suggestion to be entered on the record, for the purpose of carrying the trial of a misdemeanor into an adjoining county on the application of one of several defendants, although it does not appear that the others have assented to the application, if Digitized by Microsoft® 684 ^bTI^ «° i-eason for believing that they dissent. ■Keg. V. Browne, 6 Jur. 168. In relony.]_Oa a trial for felony, the iuiy was not able to agree upon a verdict and thi prisoner was discharged. The crown then moved to have a second trial in some other county, on the ground that a fair trial could not be had in the county where the offence was committed ■— Held, that the Court of Queen's Bench has the same jurisdiction to change the place of trial in felony as m misdemeanor, and that the place of trial should be changed, as the court was of opinion that a fair trial could not be had in the county where the offence was committed Bea V. Barrett, 4 Ir. R., C. L. 285. ' The court has jurisdiction to change the place M trial in felony as well as in misdemeanor Beg. V. Fay, 6 Ir. E., C. L. 436. In order to View Premises. ]— When it appears to be necessary for the purpose of a criminal trial that the jury should have a view of premises situated in a different county from that in which the offence was committed, this is sufficient reason for ordering the trial to take place in such county. Beg. v. Sheldon, 32 L. T. 27. Grounds of Changing— Fair Trial Impossible.] —Where there was a prospect of a fair trial, the court refused to change the venue, though the witnesses resided in another county. Beq v Dunn, 11 Jur. 287. The court will not permit the venue in an in- dictment to be changed for any other cause than the inability to obtain a fair trial in the original jurisdiction. Beg. v. Patent JEurilia and Sani- tary Manure Company, 13 L. T. 365. The court has no power to change the venue in a criminal case, nor will they order a sugges- tion to be entered on the roll to change the place of trial in an information for libel, on the ground of inconvenience and difficulty, in securing the attendance of the defendant's witnesses. Beg, V. Cavendish, 2 Cox, C. C. 176. The court will remove an indictment for a misdemeanor from one county to another, if there is reasonable cause to apprehend or suspect that justice will not be impartially administered in the former county. Bex v. Hunt, 3 B. & A. 444 ; 2 Chit. 130. It is no reason for changing the venue in an indictment for a conspiracy in destroying foxes and other noxious animals, that the gentry of the county in which the indictment was found are addicted to fox-hunting. Bex v. King, 2 Chit. 217. Evidence of partiality must be extremely strong to induce the court to change the venue in a criminal information. Bex v. Harris, 3 Burr. 1330 ; 1 W. Bl. 378. In felony, the court refused to allow the de- fendant to enter a suggestion for changing the venue, on the ground of prejudice pervading the county. Bex v. Penpraze, 1 N. & M. 312 ; 4 B. & Ad. 573. The court has a discretionary power of order- ing a suggestion to be entered on the record of an indictment for felony, removed thither by certiorari, for the purpose of awarding the jury process into a foreign county ; but this power will not be exercised unless it is absolutely necessary for the purpose of securing an impartial 685 CEIMINAL LAW— TriaL 686 trial. Rc(e v. HoUlen, 2 N. & M. 167 ; 5 B. & Ad. 347. It is no ground for removing the trial of an in- dictment from a large county, that a strong prejudice exists against the defendant in the county town where the trial is to take place. Reg. V. Stephemon, 5 Jur. 341. Imposition of Terms on the Crown.] — In an indictment for murder the trial had twice been ready for hearing ; once in the local venue where the alleged crime was committed, and once in the venue fixed by the Winter Assizes Act. On both these occasions the trial was postponed on the ground that an impartial trial could not be had ; it appearing on affidavit that large numbers of the jurors, who would try the case, were members of an association called " The Land League," which association had subscribed to the defence of the prisoners, the crime being of an agrarian nature. The venue was now changed from the local one, to a district where it appeared probable that a fair and impartial trial could be had, the crown being put under terms to expedite the hearing of the case, and to pay the costs to the accused persons necessarily incurred by the change of venue. Reg. v. Phelan, 14 Cox, C. C. 579. 2. Abeaignment. How made;] — Arraignments may be with- out holding up the hand. R41X v. Ratclifc, 1 W. Bl. 3. Standing Mute by Act of God or of Ualice.] — Where a prisoner, on being arraigned, stated that he was deaf, on which the indictment was read over to him, and he apparently did not hear it : the judge directed a jury to be impannelled to try whether he stood mute by the act of God or out of malice. Rex v. lialtoa, B. & M. 78. And his counsel has a right to address the jury and call witnesses for him. Rem v. Roberts, Car. C. L. 57. If a person stands mute upon his arraignment, the court may direct the sheriff to return a jury instanter, to try whether he stands mute obsti- nately or by the visitation of God ; and if they find that he stands obstinately mute, sentence may be passed without further inquiry. Rex v. Mereier, 1 Leach, C. C. 183 ; S. P.. Rex v. Steel, 1 Leach, C. C. 451. Semble, that where a prisoner, being called on ■to plead, remains mute, the court cannot hear evidence to prove that he does so through malice, and then enter a plea of not guilty under 7 & 8 Geo. 4, c. 28, s. 2 ; but a jury must be impannelled to try the question of malice, and it is upon their finding that the court is authorized to enter the plea. Reg. v. Israel, 2 Cox, C. C. 263. The 7 & 8 Geo. 4, c. 28, s. 2, authorizing the court to direct a plea of not guilty to be entered for a party who stands mute of malice, or will not answer directly to an indictment, applies to the case of a party who refuses to plead on the ground that he had previously pleaded to another indictment for the same offence, but which indictment was not valid in consequence of its having been found upon the testimony of witnesses not duly sworn to give evidence before the grand jury.. Rex v. Bittern, 6 C. & P. 92. A person, deaf and dumb, was to be tried for a capital felony : the judge ordered a jury to be impannelled, to try whether he was mute by the visitation of God ; the jury found that he was so. !rhe jury was then sworn to try whether he was able to plead, which they found in the affirma- tive ; and the prisoner by a sign pleaded not guilty. The judge then ordered the jury to be sworn to try whether the prisoner was now sane or not ; and on the question, he directed the jury to consider whether the prisoner had sufficient intellect to comprehend the course of the proceedings, so as to make a^ proper defence, to challenge any juror he might wish to object to, and to comprehend the details of the evidence; and that if they thought he had not, they should find him not of sane mind. The jury did so, and the judge orderecf the prisoner to be detained under 39 & 40 Geo. 3, c. 94, s. 2. Rex v. Prit- chard, 7. C. & P. 303. A person, deaf and dumb, was to be tried for a misdemeanor A jury was impannelled to try whether he was mute by the visitation of God, and on their finding that he was so, they were sworn to try if he was of sound mind, and on their finding that he was so, his counsel pleaded not guilty for him, and the trial proceeded in the usual manner, and the evidence was not interpreted to the prisoner. Reg. v. Whitfield, 3 C. & K. 121. A prisoner when called upon to plead to an indictment, stood mute. A jury was impannelled and sworn to try whether he was mute of malice or by the visitation of God. A verdict of mute of malice having been returned, the court ordered a plea of not guilty to be entered on the record. Reg. V. SeTileter, 10 Cox, C. C. 409. Declining to Plead.] — A prisoner declining tO' plead to an indictment, the court directed a plea of not guilty to be entered. Reg. v. Bernard. 1 F. & F. 240. When Objection should be Taken that Prisoner not fit to be Tried.] — A prisoner being arraigned on two indictments for murder, and having, with apparent intelligence, pleaded to one and declined to plead to the other, the plea of not guilty was entered for him by statute with the assent of his counsel. The case being then opened, and the first witness examined,, and it being then set up by his counsel that he was insane, or not in a fit state to be tried : — Held, that the proper time for making that suggestion was before the prisoner pleaded ; and, had it so been made, a jury should have been impannelled to try the question, whether he was sane and in a fit state to be tried, but as the" trial had been begun, and it would be manifestly inconvenient to recommence the trial of the collateral issue, and as, moreover, the evidence- as to the prisoner's present sanity was very much mixed up with the general question of his- sanity, it was open to the court, under 39 & 40 Geo. 3, c. 94, to take the whole of the evidence, and then leave to the jury both questions as to- his state of mind at the time of the act and at the time of the trial. Req. v. SoutJwv, 4 F. & F.864. " 3. Postponing oe Adjouening Trial. Statute.]— By 14 & 15 Vict. c. 100, s." 27, no- person prosecuted shall be entitled to traverse or- Digitized by Microsoft® 687 CRIMINAL LAW— rrtaL 688 postpone the trial of any indictment cu/ainst him at any session of the peace, session of oyer and terminer or session of gaol delivery : pro- vided always, that if the court, upon the appli- cation of the person so indicted or otherwise, shall he of opinion that he ought to lie allowed a further time, either to prepare for his defince or otherwise, such court may adjourn the trial of such person to the next suhsequent session, upon such terms as to hail or othenoise as to such court shall seem meet, and may respite the recognizances of the prosecutor and witnesses accordingly, in which case the prosecutor and: witnesses shall be iound to attend to prosecute and give evidence at such suisequent session without entering) into any fresh recognizance for that puipose. Postponement — Application, when made.] — A motion to put off a trial, on an indictment for felony, cannot be entertained till after plea pleaded. Beg. v. Bolam, 2 M. & Rob. 192. Postponing — Absence of material Witness.] — A prisoner's -counsel moved to postpone a trial for murder, on an affidavit which stated that one of the witnesses for the prosecution, who had been bound over to appear at the assizes, was absent, and that on cross-examination that witness could give material evidence for the prisoner : — Held, that this was sufficient ground for postponing the trial, without shewing that any endeavour had been made on the part of the prisoner to procure the witness's attendance, as the prisoner might necessarily expect, from his having been bound over, that he would appear. Reg. V. Jl-Carthy, Car. & M. 625. An issue upon the identity of a person is to be tried instanter. Bex v. Bogers, 3 Burr. 1809. Not Examined before Magistrate.] — If it is moved, on the part of the prosecution in a felony, to put off the trial, on the ground of the absence of a material witness, who has not made a deposition before the committing magistrate, the judge will require an affidavit stating what points the witness is expected to prove, in order that he may form a judgment as to the witness being material or not. Beg. v. Savage, 1 C. & K. 75. A trial for murder was put off until the next assizes, upon an application on the part of the prosecution, on the ground of the inability of a material witness to attend, although the witness was not examined before the magistrates, there beint' an affidavit of a medical man as to^ an injury to the witness, rendering it, in his opinion, unsafe that he should travel, and this even after the trial had been appointed for a particular day. Beg. v. Lawrence, 4 F. & F. 901. What Evidence sufficient that Witness cannot attend ]— Where it was stated by the grand jury on their returning a true bill for murder, that an important witness was too ill to give evidence in court, the jury directed two surgeons to see the witness ; and on their stating on the voir dire that the witness was too ill to give evidence m court, the judge ordered the trial to be postponed to the next assizes, and the prisoner to be de- tained in custody. Beg. v. Chapman, 8 O. & i . 538 An affidavit of a surgeon, that a witness is the mother of an unweaned ohild.^^^^J^^^e^^^^^^^^^ with inflammation of the lungs, and that the child could neither be brought to the assize town nor separated from its mother without danger to its life, is sufficient ground for the absence of the witness, in order to found a motion to post- pone the trial. Beg. v. Savage, 1 0. & K. 75. Effect of Postponement on Prisoner.]— Before the spring assizes, 1840, A. was committed to take his trial at those assizes for shooting B. The trial was postponed to the summer assizes, on the ground that B. was too ill from his wounds to be able to attend to give evidence. Before the summer assizes B. died, and at those assizes a true bill for the murder of B. was found against A., and application was made, on the part of the prosecution, to postpone the trial to the next spring assizes, on the ground of the illness of a material witness. The judge granted the application, and held, that A. was not en- titled to his discharge under the 7th section of the Habeas Corpus Act. Beg. v. Sowen, 9 C. & P. 509. If it is moved on the part of the prosecution in a case of felony to postpone the trial on the ground of the absence of a material witness, the practice, where the absence of the witness can be traced to the acts of the prisoner or his friends, is not to discharge the prisoner from custody, except on very sufficient bail ; but- where no collusion appears between the absent witness and the prisoner, or his friends, the practice is to discharge the prisoner on his own recognizance. Bex v. Beardmore, 7 C. & P. 497. Where a trial for felony is postponed, on the application of the counsel for the prosecution, on the ground of the absence of a material witness, it is in the discretion of the judge, whether, on consideration of the circumstances of each particular case, he will order the prisoner to be detained till the next assizes, or admit him to bail, or discharge him on his own recogaiizance. Bex V. Osiorn, 7 C. & P. 799. Prisoner unable through Extreme Poverty to Procure Attendance of Witnesses.] — The court will postpone until the next assizes the trial of a prisoner charged with murder, on an affidavit by his mother that she would be enabled to prove by several witnesses that he was of unsound mind, and that she and her family were in extreme poverty, and had been unable to procure the means to produce such witnesses, and that she had reason to believe that if time were given to her the requisite funds would be provided. Beg. V. Langhurst, 10 Cox, C. C. 353 ; 4 F. & F. 969. Affidavit.]— The affidavit of the prisoner's attorney, setting forth the information he had received from the mother, was held to be in- sufficient, li. Danger to Public from Infection.]— A case was postponed on the ground that infection might be conveyed to the public, by the attend- ance of the witnesses. Beg. v. Taylor, 15 Cox, C. C. 8. Arrest of Defendant.]— A defendant in an in- dictment for perjury, tried at the sittings m the Queen's Bench, was arrested on the Wednesday before the trial, as he was going to the chambers 689 CEIMINAL L,AW— Trial. 690 of his counsel to deliver his brief. The case was called on for trial on the Saturday, and the judge would not postpone it unless it could be shewn that the arrest was by collusion with the prose- cutor ; and the fact that a witness for the pro- secution stood by while the arrest took place is not sufficient to raise- that inference. Sei/. v. Gordon, Car. & M. HO. To give Opportunity of sifting Character and Evidence of Witnesses.] — An application to post- pone the trial of a prisoner charged with murder, in order to afford an opportunity of investigating the evidence and characters of certain witnesses, who had not been examined before the com- mitting magistrate, but who were to be called for the prosecution to prove previous attempts by the accused on the life of the deceased, was refused. Her/, v. Johnson, 2 C. & K. 354. That other Charges may be Brought against Prisoner.] — Upon a charge of murder by poison, the presentment of a bill to the grand jury cannot be postponed to the next assizes, on the ground that other and like charges may before that time be brought against the prisoner, and if no bill of indictment is so presented, he is en- titled to be discharged. Beg. v. Heeson, 14 Cox, C. C. 40. Principal Witness Incompetent to take Oath.] — A judge at assizes may postpone a trial until the next assizes, if he finds the principal witness wholly incompetent to take an oath from ignor- ance ; and may order the witness to be instructed in the meantime by a clergyman in the principles of his duty, and the nature and obligation of an oath. Sex V. White, 1 Leach, C. C. 430. Where a bill for rape on a child under the age of ten has been ignored by the grand jury, in consequence of the judge refusing to allow the child to be sworn as a witness, on the ground of her want of knowledge of the obligation of an oath, the prisoner was ordered to be detained in custody until the child could be properly instructed. Mecj. v. Baylis, 4 Cox, C. C. 23. In a case of carnally 'knowing and abusing a girl _ under ten years old, it appeared on an application on the part of the prosecution to postpone the trial, that the girl was only six years old, and by reason of her age, incapable of taking an oath :— Held, that the trial ought not to be postponed in order that the child might be instructed as to the nature of an oath ; but that there might be cases of children of more matured intellect, e.g., of ten or twelve years old, who might be from neglected education incapable of being sworn, in which such a postponement might be proper. Req. v. Meholas, 2 C. & K. 246 ; 8. P., Rex v. Williams, 7 C. & P. 320. Prejudice preventing Fair Trial.]— It is a good ground for putting ofE a trial, that the jury panels at the assizes have been taken from a neighbourhood where an excitement has been raised against the prisoner likely to prevent a fair trial. Re^. v. Bolam, 2 M. & Eob. 192. Pending Examination of Witnesses abroad.] — A defendant indicted for misdemeanors com- mitted by him in the West Indies in a public capacity, under 42 Geo. 3, c. 85, is not entitled, upon an affidavit in the common form for putting oflE a trial upon the absence of a material witness, to put off his trial till return made to writs of mandamus to the courts abroad, to examine witnesses, which are directed to be issued in such cases at the discretion of the court ; but he must lay before the court such special grounds by affidavit, as may reasonably induce them to think that the witnesses sought to be examined are material to his defence. But the prosecutor in such case is of course entitled to writs of man- damus for the like purpose. Rex v. Jones, 8 Bast, 81. Expenses of Prosecution on Postponement of Trial.] — Upon the postponement of a trial for the recovery of a witness who is ill, the prosecu- tor may then be allowed the costs of the pro- secution incun-ed up to the date of the postpone- ment. Reg. V. Wilson, 12 Cox, C. C. 622. Adjourning.] — The judge in a case of felony has no authority to order an adjournment (i. e. to another day) on account of the mere absence of the prosecutor and his witnesses. Reg. v. Pari; 2 F. & P. 861. Or to adjourn a criminal trial when once the jury is sworn. R^g. v. Tempest, 1 F. & F. 381. But a prisoner's trial may be adjourned if the case has only been opened by counsel for the prosecution, but not after evidence has been called. Reg. v. Roison, 4 F. & F. 360. 4. Pleas. a. Fleas In Abatement. Statute.]— The 7 Geo. 4, c. 64, s. 19, for pre- rcnting aiuses from dilatory pleas, enacts, that no indietment or information sliall T>e abated hy reason of any dilatory plea of misnomer, or of want of addition, or of wrong addition of tlie party offering snch plea, if the' court shall he satisfied hy affidavit or otherwise of the truth of sueh plea; hut in such case the court shall forthwith cause the indictment or information to he amended according to the truth, and shall call upon such party to plead thereto, and shall proceed, as if no such dilatory plea had been pleaded. How Pleaded.] — A plea in abatement is a dilatory plea, and must be pleaded with strict exactness. 0' Connell v. Reg. {in error'), 11 C. & F. 155 ; 9 Jur. 25. Amendment of.] — The court will not allow a defective plea in abatement, to an indictment for a misdemeanor, to be amended. Rex v. Cooke, 4 D. & R. 592 ; 2 B. & C. 871. Misnomer.] — Before this enactment, one in- dicted for a misdemeanor might plead in abate- ment a misnomer of his surname — Shakepear for Shakespeare, which need not be taken for idem sonans ; and the plea concluding with pray- ing judgm ent of the indictment, that he might not be compelled to answer the same, was good. Rex V. Shahespeare, 10 East, 83. Where a defendant was indicted with an alias diotus, and pleaded in abatement that he was not known by such name, the plea must have been demurred to, or issue talien thereon ; and it could not be quashed on motion. Rex v. Clark, alias Jo7ies, 1 D. & R. 43 ; S. P., Rex v. Coohe, 4 D. & K. 114 ; 2 B. & C. 618. Digitized by Microsoft® 691 CEIMINAL LA.W~Trial. Peer.]— Where a defendant pleaded in abate- ment to an indictment for a misdemeanor, that he was a peer, sach plea was bad on demurrer for not statuig that he was a peer of the United Kingdom, and shewing in what manner he derived his title. Me.i! v. CooJie. i D. & E. 592 ; 2 B & C. 871. ' Affidavit.]— A dilatory plea to an indictment was set aside for want of an aifidavit to verify it. licx V. Gmingei; 3 Burr. 1617 ; X P. Ren V. Duffy, 9 Ir. L. R. 163. ' ' ./■ Pleading Over.]— A defendant in an indict- ment for a misdemeanor cannot plead over to the charge, after a plea iu abatement for a mis- nomer, on which issue was taken and found against him. Rix v. Gibsmi, 8 East, 107. See Reg. V. Pkel2>s, Car. & M. 180. Judgment on.] — Although the . prosecutor having demurred to a plea iu abatement con- cluded in bar, praying final judgment : — Held, that the court was not precluded thereby, but was bound to give that judgment which was right on the whole record. Ren. v. Mitchell, 3 Cox. 0. G. 94. Where a replication to a plea in abatement introduces new matter, upon which issue may be taken, the prosecutor is entitled to pray final Judgment. IT). b. Special Fleas. In addition to Not Guilty.] — In criminal cases a defendant cannot plead a special plea in ad- dition to not guilty. Reg. v. Strahan, 7 Cox, 0. C. 85 ; S. P., Reg. v. Skeen, 8 Cox, C. C. U3 ; Bell, C. C. 97 ; 28 L. J.. M. C. 91 ; 5 Jur., N. S. 151 ; 7 W. R. 255. u. 'Withdravring Plea. Discretion of Judge.] — It is purely for the discretion of the judge at the trial, whether a plea of not guilty may be withdrawn or not; and the exercise of such discretion cannot be reviewed upon a case reserved. Reg. v. Brown, 17 L. J., M. C. 145. Trial in Queen's Bench.] — Where an indict- ment has been removed and sent down to trial as a Queen's Bench record, the defendant cannot withdraw his plea of not guilty and plead guilty. Rex V. Barrett, 2 Lewin, C. C. 264. Eetracting Plea of Guilty.] — A prisoner who has pleaded guilty to a charge of larceny, and upon whom sentence has been passed, cannot be allowed to retract his plea and plead not guilty. Reg. v. Selbe, 9 C. & P. 346. On the trial of an indictment for forgery against two, one of them, after the opening speech for the prosecution, asked to be allowed to withdraw his plea of not guilty and to plead guilty. This was done, and the plea of guilty was recorded. He was then examined as a witness for the prosecution against the other, and swore that he had no knowledge of the in- strument being forged. Upon this he was allowed to withdraw his plea of guilty and to plead not guilty, the jury withdrawing their verdict. The trial of the other party was then proceeded with, and, on his acquittal, the one who had withdrawn his plea was put upon his trial. V. Clouter, 8 Cox, C. C. 287 692 li<-g. d. Autrefois Aoauit and Autrefois Convict. i. Validity. Statute.]— By 14 & 15 Vict. c. 100, s. 28, on any plea of autrefois eomiatov autrefois acguit, ■It shill bo sufficient for any defendant to state tliat he has been lawfully conHeted or acquitted as the case may be, of the said offence charqed 111 tlw. indletMcnt. ' Judgment Reversed in Error.]— A plea of autrefois convict or acquit, which shews that the judgment on the former indictment has been re- versed for error in the judgment, is not a good bar to a, subsequent indictment for the same offence. Reg. v. Brnry, 3 C. & K, 193 ; 18 L. J., M. C. 189. A judgment reversed is the same as no judg- ment ; and upon a record without any judgment no punishment can be inflicted. lb. Defect in Eecord.]— Where, by reason of some defect iu the record, either in the indictment, place of trial, process or the like, a prisoner has not been lawfully liable to suffer judgment for the offence charged, he has not been in jeopardy in the same, which entitles him to plead the former proceeding, in bar to a subsequent in- dictment, lb. A prisoner is lawfully liable to suffer punish- ment on an erroneous record, until it is reversed in a court of error. lb. A judgment on demurrer in felony, on the ground that the indictment does not sufficiently charge a felony, is no bar to a subsequent good indictment for the same felony. Beg. v. Richmond, 1 C. & K. 240. Prisoner put in Peril — Whether before Magis- trate or Jury.] — The defence of autrefois convict is a common law defence available in every case where a man is put in peril more than once .for the same act, whether the charges are made before magistrates or tried before a jury. Wemyss v. Hopkins, 10 L. E., Q. B. 378 ; 44 L. J., M. C. 101 ; 33 L. T. 9 ; 23 W. E. 691. Evidence which might have been Adduced at first Trial.] — If the prisoner could have been legally convicted on the fii-st indictment upon any evidence that might have been adduced, his acquittal on that indictment may be successfully pleaded to a second indictment ; and it is im- material whether the proper evidence was ad- duced at the trial of the first indictment or not. Rex V. Sheen, 2 C. & P. 635. Facts sustaining first Indictment.] — A plea of autrefois acquit cannot be pleaded unless the facts charged in the second indictment would, if true, have sustained the first. Rex v. Vander- comb, 2 East, P. C. 519 ; 2 Leach, C. C. 708. Burglary — Felony committed — Intent to com- mit Felony.] — A plea of autrefois acquit of a burglary, where the felony is laid as actually committed, cannot be pleaded to an indictment for the same burglary laid with intent to commit the felony, for they are two distinct and different offences. lb. Digitized by Microsoft®. 2 A 2 693 CRIMINAL LAW— Tnai. 694 Murder — Burglary with Violence.] — If a party charged with the crime of murder,committecl in the perpetration of a burglary, Is generally acquitted on that indictment, he cannot after- wards be convicted of the burglary with Tiolenoe, as the general acquittal on the charge of murder would be an answer to that part of the indict- ment containing the allegation of violence. Reg, V. Gould, 9 C. & P. 36,4. Manslaughter — Murder.] — A man was tried for manslaughter, andfound guilty and sentenced. Shortly after his trial the coroner's juiy returned an inquisition for wilful murder upon the same facts. At the next assizes he was arraigned upon such inquisition, when he pleaded autrefois con- vict. The facts of identity of the prisoner and deceased having been given in evidence, and the judge having read the depositions, which, as he thought, disclosed a case of manslaughter, he held the plea to be proved, at the same time stating that if he thought the case would ultimately have resolved itself into one of murder, he should have tried the prisoner, and if necessary, reserved the point. Reg. v. Tancoclt, 13 Cox, C. C. 217 ; 34 L. T. 455. Murder — Poisoning with Intent to Murder.] — Upon an indictment under 7 Will. 4 & 1 Vict. c. 85, ss. 3, 4, for administering poison with intent to murder, a previous acquittal on an indictment for murder founded on the same facts could not be pleaded in bar. Reg. \'. Connell, 6 Cox, C. 0. 178. Murder by Administering Noxious Thing.] — A first count for murdering a male bastard child, stated that the prisoner gave and administered a large quantity of oil of vitriol, and forced the child to take into his mouth and throat a large quantity of the said oil of vitriol, the prisoner knowing that the said oil of vitriol would occa- sion the death of the child, whereby he became disordered in his mouth and throat, and by the disorder, cholting, suffocating, and strangling occasioned thereby, languished and died. The second count was for murdering the child, by administering a certain acid called oil of vitriol, and forcing the child to take a large quantity of the said acid into his mouth and throat, by means whereof he became injured and disordered in his mouth and throat, and incapable of swal- lowing his food, and died of the inflammation, injury, and disorder occasioned thereby. A plea, that the prisoner had been" acquitted for mur- dering a base infant male child, by giving and administering a certain deadly poison, to wit, oil of vitriol, and by forcing the child to take, drink, and swallow down a large quantity of the said oil of vitriol, the prisoner knowing it to be a deadly poison, whereby the child became sick and distempered in his body, and, by the sickness and distemper occasioned thereby, languished and died, is a good bar to the indictment. Rex V. ClarTt; 1 B. & B. 473. Assault — Murder.] — A person was acquitted of an assault with intent to murder, but was convicted of an assault with intent to do grievous bodily harm, and the prosecutor having subse- quently died, he was indicted for murder : — Held, that he was properly Indicted. Reg. v. Sahi, 10 Cox, C. C. 481, n. Murder — Assault.] — Two were indicted for having, on the 10th November, 1849, assaulted P. They pleaded autrefois acquit, and in their plea set out an indictment for murder, the third count of which alleged that they had mur- dered the deceased, by beatings on 6th November and 1st December, 1849, and 1st Januaiy, 1850, and on divers other days between the 5th No- vember and 1st January ; and the plea averred that the assaults charged in the second indict- ment were identically the same as those of which they had been acquitted on the trial of the first. The replication was, that the prisoners were not acquitted of the felony and murder, including the same identical assaults charged in the indict- ment. On the first trial the counsel for the crdwn had stated the assaults as conducing to the death, and had given them in evidence to sustain the charge of murder. It was proved, however, that the cause of death was a blow in- flicted shortly before the death of the deceased, which occurred on the 4th of January, but there was no evidence to shew by whom the blow was struck ; and the prisoners were acquitted. The judge, on the second trial, told the jury, that if they were satisfied that there were several dis- tinct and indei^endent assaults, some or any of which did not in any way conduce to the death of the deceased, it would be their duty to find the prisonei-3 guilty. The jury found the pri- soners guilty : — Held, that the conviction was right, as the prisoners could not, on the trial for murder, have been convicted, under 7 Will. 4 & 1 Vict. c. 85, s. 11, of the assaults for which they were indicted on the second trial. Reg. v. Bird, T. & M. 437 ; 2 Den. C. C. 94 ; 5 Cox, C. C. 11 ; 20 L. J., M. C. 70 ; 15 Jur. 193. Assault — Felonious Stabbing.] — A plea of autrefois copviot of an assault before justices, under 9 Geo. 4, c. 31, s.27, is a bar to an indict- ment for feloniously stabbing in the same trans- action. Reg. 1. ^^alker, 2 M. & Bob. 446. Assault — Manslaughter.] — But a previous summary conviction for an assault under 24 & 25 Vict. c. 100, s. 45, is not a bar to an indict- ment for manslaughter of the party assaulted, founded upon the same facts. Reg. v. 3Iorris, 1 L. E., C. C. 90 ; 36 L. J., M. C. 84 ; 10 Cox, G. C. 480. Bape — Assault with Intent to commit Rape.] — An acquittal on an indictment for rape could not be successfully pleaded to n. subsequent indictment for an assault with intent to commit a rape, nor could an acquittal on an indictment for feloniously stabbing, with intent to do grievous bodily harm, be successfully pleaded to an indictment for an assault, though, in each case, the transaction was the same, and the accused might have been convicted of an assault under 7 Will. 4 & 1 Vict. c. 85, s. 11. Mg. v. Gisson, 2 C. & K. 781. Perjury— Same AfBdavit.] — One was indicted in Middlesex for perjury committed in an affi- davit, which indictment, after setting out so much of the affidavit as contained the false oath, concluded with a prout patet by the affidavit filed in the Court of King's Bench, and on this he was acquitted ; after which he was indicted again in Middlesex for the same perjury, with this difference only, that the second indictment Digitized by Microsoft® 69t CRIMINAL LAW— rn«L set out the jurat of the affidavit, iu which it was stated to have been sworn in London ; which was traversed by an averment that in fact the defendant was so sworn in Middlesex, and not in London :— Held, that he was entitled to plead autrefois acquit, for the jurat was not conclusive as to the place of swearing ; and the same evi- dence as to the real place of swearing the affidavit might have been given under the first as under the second indictment, and therefore the defen- dant had been once before put in jeopardy for the same ofEence. Itex v. Emden, 9 East, 437. Indictment for Felony — Acquittal — Subse- quent Indictment for Misdemeanor upon same raots.]_By 24 & 25 Vict. c. 97, s. 35, and 24 & 25 Vict. c. 100, it is enacted that any person who unlawfully and maliciously throws upon or across any railway any wood, stone, or other matter with intent to endanger the safety of any passenger travelling or being upon such railway, or with intent to obstruct or injure any engine, shall be guilty of felony, and being convicted thereof shall be liable to penal servi- tude for life, or to be imprisoned for any time not exceeding two years : — Held, that an . ac- quittal upon an indictment chai'gmgthe prisoner with a felony was no bar to a subsequent indict- ment being preferred upon the same facts for a misdemeanor under the provisions of the above .statutes, lleg. v. Gilmori', 15 Cox, C. C. 85. Larceny — Property of A. or B.] — The prisoner stole the goods of J. B. from his stall, which at the time was in the charge of K. B. his son, a child of fourteen, who lived with his father, and worked for him. The first indictment against him for stealing the goods described them as the property of E. B. The sessions thinking this a wrong description directed an acquittal, and caused a new bill to be sent up laying the property in J. B. To this indictment he pleaded autrefois acquit : — Held, that the plea could not be sustained, for the prisoner could not, on the evidence, have been convicted on the first in- dictment, charging the property as that of K. B., and that the court could only look at the first indictment as it stood, without considering whether the allegation as to the ownership of the goods might not have been amended so as to have wan-anted a conviction. Meg. v. Grci-n, Dears. & B. C. C. 113 : 7 Cox, C. C. 186 ; 26 L. J., M. C. 17 ; 2 Jur., X. S. 1146. Larceny at Common Law and under Statute.] In one indictment the prisoners were charged with larceny at common law, and for feloniously receiving " the goods aforesaid." They were ac- quitted on the ground that the alleged goods were a fixture in a building. They were then charged upon a second indictment under the 24 & 25 Vict. u. 96, s. 31, for stealing the fixture, to which charge they pleaded autrefois acquit. The presiding chairman at sessions held that -plea not to be proved, and the prisoners then pleaded not guilty, but were convicted :—Held_, that the ruling of the chairman was right, and that the prisoners had not been m peril on tne count for receiving in the fif * 'fdictnient. Iteg. V. O'Brien, 15 Cox, C. C. 29 ; 46 L. T. 177. Principal— Accessory before Fact.]— A person who is tried for felony as a V^'^^}V^]^y^_,^^^^ 696 qiStted, cannot plead that acquittal in bar of ^ Digitized by Microsoft® another indictment, which charges him with being an accessoiy before the fact to the same felony. Bex v. Plant, 7 C. & P. 575. Joint Indictment— Single Indictment.]— Plea by one prisoner, indicted singly for receiving stolen goods, of autrefois acquit, under an in- dictment against him and four others, on which one was convicted, and the prisoner and the three others were acquitted, is good. Mex v Sann, 1 M. C. C. 424. Evidence shewing former Indictment in- correct.]— Indictment that the defendant, in the reign of the present king, kept a common gaming-house ; plea, that the defendant, in the reign of the present king, was acquitted upon an indictment for keeping a common gamirig- house in the reign of the late king, against the peace of our said lord the king ; and averring the identity of the offences : demurrer, con- cluding with a prayer of judgment of respon- deat ouster : — Held, first, that the plea was had, because the indictment on which the acquittal was founded charged an ofEence committed in the reign of the late king, and the defendant could not by averment shew that the ofEence charged in both indictments was the same ; and secondly, that the judgment on demurrer was final, although the demilrrer concluded with a prayer of judgment of respondeat ouster. Rex V. Taylor, 5 D. & E. 422 ; 3 B. & C. 502. Verdict of Guilty — Second Indictment by Order of Judge.] — A first count charged the prisoners with having iu their possession a mould intended to impress the stamp of the reverse side of a shilling ; the second stated, that the mould was intended to impress the obverse side ; the third stated that it was in- tended to impress part or parts of the reverse side ; and the fourth stated the same as to the obverse side. A verdict of guilty having been recorded, a motion was made in arrest of judg- ment, on the ground that the two last counts were bad for uncertainty, whereupon the judge directed another indictment to be preferred. The second indictment contained the first two counts of the previous one ; a third and fourth stated, that the mould was intended to impress parts of the obverse and parts of the reverse sides ; a fifth and sixth used the word '• part" instead of parts. The prisoner pleaded autrefois convict. The twelve judges decided that the plea was bad, and confirmed the second conviction. MexY. Philiips, 1 Jur. 427. Second Indictment should have been Included in first.] — ^A prisoner was tried, on the 6th of April, 1863, upon an indictment charging him with having, on the 22nd of Januaiy, 1863, stolen 251bs. of copper, the property of A., and was acquitted. He was again tried on the 29th of June, 1863, upon an indictment which charged him in a first count, with having, on the 20th September, 1862, stolen a riddle, the property of A and in the second count, with having, on the 16th of January. 1863, stolen five shovels, also the property of A. The prisoner had been in A.'s employ several years, and the riddle and shovels were found in his possession on the 21st of January, 1863, but there was no evidence to shew when they were stolen :— Held, first, that he was not entitled to be acquitted upon the 697 CEIMIXAL LAW— 2VfflZ. 698 second trial on the ground that the charge of stealing the riddle and shovels ought to have been included in the first indictment, and that on these facts a verdict was rightly found against him upon a plea of autrefois acquit. Reg. v. KnlgU, L. & G. 378 : 9 Cox. C. C. 437 ; 9 L. T. 808. Plea — Duplicity — Two Acquittals.] — If, in a plea of autrefois acquit, the prisoner was to insist on two distinct records of acquittal, his plea would be bad for duplicity, i^v v. Sheen, 2 C. & P. 635. Discharge of Jury by Judge — How Pleaded.] — On the trial of an information for a misde- meanor the judge discharged the jmy. The defendant then put a plea on the record, setting out the facts under which the jury was dis- charged, in the nature of a plea autrefois acquit : —Held, that this matter could not be raised by way of plea, but must be raised by way of error on the record after conviction. Keg. v. Charlcs- u-orth, 4 L. T. 638 ; 5 L. T. 150 ; 9 W. K. 805. ii. Practice, Hot Guilty.] — A prisoner may plead not guilty, after his special plea of autrefois acquit is found against him. Hex v. Wcleli, Car. C. L. 56. Informal mode of Pleading.] — The coiut will not reject a plea of autrefois convict on account of the informal manner in which it is handed in by the prisoner, but will assign counsel to put it into a formal shape, and postpone the trial, to give time for its preparation. Rex v. Cliamier- laln.a C. & P. 93. Jury Charged — Two Issues.] — The jury can- not be charged at the same time to try the two issues of autrefois acquit and not guilty. Rex Y. Roche, 1 Leach, C. C. 134. Bight to Begin.] — Four persons were tried for a rape, upon an indictment containing counts charging each as principal, and the others as aiders and abettors. They were acquitted ; and it being proposed on the following day to try three of them for another rape upon the same person (the second indictment being exactly the same as the first, with the omission only of the fourth prisoner), they pleaded autrefois acquit to the second indictment, averring the identity of the offences.- To this plea there was a re- plication that the offences were different ; — Held, that on this issue the prisoners' counsel must begin. JJc j- v. Parry, 7 C. ,.7 : 42 L. T. 250 ; 28 W. R. 413 ; 44 J. P. 346 ; 14 Oox. C. C. 408. 1. The Prosecution. Public Prosecutor.]— 42 & 43 Vict. o. 22, pro- vides for the appointment and duties of a director of piMio prjisecutions. In whose Name Conducted.] — A corporation must prosecute in its corporate name ; and the addition of such name as a description of the pei-sons of which the corporation is composed is not suflioient in an indictment. Bex v. Patrioh, 1 Leach, C. C. 253 ; 2 Bast, P. C. 1059. A vestry was empowered, by act of parlia- ment, to indict any person who should stop or impede rights of way in the parish, and to take such other proceedings for opening thereof as should appear expedient : — Held, that the vestry must indict in the name of the Queen, and sue in equity in name of the attorney-general, and that they could not proceed in their own name. Bermondsey Vestry v. Brown, 35 Beav. 226. 712 IV. JUEIES AND CHALLENGES. 1. Grand JTury. 2. Petty and 8pecia,l Jury, 714. 3. Challenges, 716. 4. View, 720. 6. ZocTting-up, 721. 6. Discharge of, 721. 7. Jury Process, 722. 8. Questions for Jury, 723. Statutes.]— 6 Goo. 4, c. 50 ; 7 4' 8 Goo. 4, e. 28, ». 2 ; 15 ^ 16 Vict. u. 76, s. 105. As to the qualification and liability of bur- gesses to be jurors, see 45 & 46 Vict. c. 50, s. loo. By 6 & 7 Vict. c. 85, s. 2, wherever in any legal proceedings any legal proceedings tehat- ecermay be set out, it shall not be necessary to specify that any particular persons who acted as jurors had made a,ffirmation instead of oath, but it may be stated that tliey served as jurymen, in the same manner as if no act had passed for enabling persons ito serve as jurymen without oath. In High Treason.] —See Tkeason. 1. Gkand Juby, Constitution— Who may Serve on.] — An Irish peer ought not to serve on a grand jury, unless he is a member of the House of Commons, he then being to all intents and purposes a com moner. Headloy (Lord'), In re, R. & E. C. Ci 117. A person may serve on the grand jury although he is not a freeholder. Anon., E. & E. C. 0. 117. — Number.] — ^A grand jury ought not to consist of more than twenty-three persons. Bea; V. 3Iarsh, 1 N. & P. 187 ; 6 A. & E. 236 ; 2 H. & W. 366 ; 1 Jur. 38. Where more than twenty-three persons are sworn upon a grand jury, and a bill of indict- ment is found by them, to which a defendant pleads, and is tried and found guilty, the court will not quash the indictment. lb. Postponing Presentment of a Bill.] — Upon a charge of -murder by poison, the presentment of a bill to the grand jury cannot be postponed to the next assizes, on the ground that other and like charges may before that time be brought against the prisoner, and if no bill of indictment is so presented, he is entitled to be discharged. Beg. V. Beeson, 14 Cox, C. C. 40. Finding Bill after Ignoring one against same Person.] — If the grand jury, at the assizes or sessions, has ignored a bill, they cannot find another bill against the same person for the same offence at the same assizes or sessions, and if such other bill is sent before them they should take no notice of it. Beg. v. Humphreys, Gs.x. & M. 601. See contri, Beg. v. Newton, 2 M. 4; Eob. 503. Bill found after Discharge.]— The grand jury Digitized by Microsoft® 713 CRIMINAL LAW — Juries and Challenges. 714- had Gome into court and had been discharged and had left the court, but had neither left the building nor separated. The judges directed them to be sent for back into court, and directed another bill of indictment (the witnesses on which were going abroad) to be sent before them. lli-g. V. Holloioay, 9 C. & P. 43. Cannot ignore Bill on Ground of Insanity.] — A gi-and jury has no authority by law to ignore a bill for murder on the ground of insanity, though it appears clearly from the testimony of the witnesses, as examined by them on the part of the prosecution, that the accused was in fact insane ; but if they believe that the acts, if they liad been done by a person of sound mind, would have amounted to murder, it is their duty to find the bill ; otherwise the court cannot order the detention of the party during the pleasure of the crown, as it can either on arraignment or trial under the 39 & 40 Geo. 3, u. 94, ss. 1 & 2. Reg. V. Hodges, 8 C. & P. 195. Affidavits or Explanations, whether Beceiv- able.] — The court will not receive an affidavit of a grand juror as to what passed in the grand jury-room, upon the subject of a bill of indict- ment. Rex V. 3Iarsh. 1 N. & P. 187 ; 6 A. & E. 236 ; 2 H. & W. 366 ; 1 Jur. 38. The grand jury returned a bill of indictment which contained ten counts, for forging and uttering the acceptance of a bill of exchajjge, with an indorsement — "a true bill on both counts," and the prisoner pleaded to the whole ten counts. After the case for the prosecution had concluded, the prisoner's counsel pointed this out. The grand jury was discharged, and the judge would not allow one of the grand jurors to be called as a witness to explain their finding. Reg. v. Coolu; 8 C. & P. 582. Swearing Witnesses.]— By 19 & 20 Vict. c. 54, s. 2, it shall not he neeessary for any person to take an oatJi in open court in order to qvalify himself to gtre eridcnce he/ore a grand jury. By s. 1, the foreman of a grand jury empan- nelled in England and ' Wales is empowered to examhie, on oath or afftrmation, all persons who shall apjiear before a grand jury to give rrideitoe in support of any Mil of indictment. The name of every witness examined, or intended so to he, shall he indorsed on the hill of indict- ment, and the foreman shall write his initials against the name of each witness so sioorn and examined. By s. 3, the trord "foreman " is to include any memher of the grand jury who may for the time heing act on hehalf of the foreman in the examination of witnesses. Where the grand jury has found a bill, the judges before whom the case comes to be tried, ought not to inquire whether the witnesses were properly sworn previously to their going before the jury ; and it seems that an improper mode of swearing them will not vitiate an indictment, as the grand jury is at liberty to find a bill upon their own knowledge only. Reg. v. Russell, Car. & M. 247. If witnesses go before the grand jury without being sworn, and the bill is found, and the prisoner tried and convicted, it is proper to recommend him for a free pardon. Resc v. Dichenson, R. & K. 0. C. 401. Swearing Jurors.] — Semble, that no objection to the caption of an indictment for an allegation that the grand jurors were sworn and affirmed, can be sustained without shewing that those who were sworn were persons who ought to have affirmed, or that those who were affirmed were persons who ought to have been sworn. Mulcahy V. Reg. Qin ernor'), 8 H. L. Cas. 306. Evidence — Written Explanation] — A gi'and jury cannot on a suspicion that the witness has been tampered with by the prisoner, receive in evidence his written explanation in lieu of his parol testimony for the purpose of finding a bill. Denhy's ease, 1 Leach, C. C. 514. Depositions, when Admissible.] — See post, Depositions. 2. Petty and Special Jury. Special Jury.] — There is no power in the court to order a special jury to be struck for the trial of a person charged with f elouv. Reg. v. Mayne, 32 W. E. 95. Number.] — In criminal cases, twelve jurors must appear on the record. Rex v. St. Michael, 2 W. Bl. 718. A new panel of seventy-two jurors may be ordered by the judge to be summoned during the assizes, and a conviction for felony by a jury selected thei-efrom, after challenging, though more than forty-eight, is valid. Reg. v. Cropper, 2 M. C. C. 18. Of .whom Composed — In Case of Aliens.] — By 33 Vict. c. 14, s. 5, an alien shall not he entitled to he tried hy a jury de medietate lingua, hut shall he triahle in the same manner as if he were a natural-lorn subject. On Bemoval by Certiorari.] — An indict- ment, containing two counts, one alleging per- jury committed in Middlesex, the other alleging perjury committed in London, was tried, upon removal by certiorari from the Central Criminal Court, before the Queen's Bench, sitting at bar : — Held, that it was no valid objection to the jurisdiction of the court that the jury was en- tirely from the county of Middlesex. Reg. v. Castro, 28 L. T. 342. Taken 111 during Trial.] — If a juryman is tak,en so ill as to be incapable of attending through the trial, another juryman returned in the panel may be added to the eleven jurymen, but the prisoner should be offered his challenges over again as to the eleven, the eleven should be sworn de novo, and the trial begin again. Rex V. Edwards, E. & E. C. C. 234 ; 2 Leach, C. C. 621, n. ; 3 Camp. 207, n. ; 4 Taunt. 309. Where a juryman is taken so ill as to be un- able to continue, another juryman may be sworn with the eleven jurymen already on the trial, and the witnesses already heard being recalled. Reg. V. Beere, 2 M. & Eob. 472. -S. P., Rex v. Se'alhert, 2 Leach, C. C. 620. Copy of Panel. ] — A prisoner indicted for felony is not entitled to a copy of the jury panel, Reg. V. Bowling, 3 Cox, C. C. 509. The court will not compel the prosecutors to give a list of their names to the defendant pre- Digitized by Microsoft® 715 CRIMINAL LAW — Juries and Challenges. 716 viouely to striking a special jury, but will give such directions, by consent of the prosecutors, as shall prevent prejudice accruing to the defendant in consequence of such list not being furnished. Beg. V. Nicholson, 8 D. P. C. 422 ; 4 Jur. 558. Assent Inferred.] — In general, the assent of fl.ll the jury to the verdict pronounced by the foreman in their presence and hearing is to be conclusively inferred ; and no affidavit Can in any case be admitted to the contrary. Bex v. Wooller, 1 Stark. 111. Exemption. ] — The exemption from serving as jurymen, claimed by the members of the Barbers' Company, under the charters of 1 Edw. 4, and 5 Car. 1, and the 18 Geo. 2, c. 15, does not extend to the Central Criminal Court, but is confined to the local courts of the city, viz. those holden before the mayor, the sheriff or the coroner. White, In re, Car. & M. 189. Should take law from Judge.] — The jury should take the law from the judge ; and there- fore, when cases had been cited to the judge in a legal argument, and he had given an opinion on tifiem, they Were not allowed to be read to the jury in the address of the prisoner's counsel to them. Reg. v. Paruh, 8 C. & P. 94. Special Finding.] — In a case of felony, the judge will not direct the jury to find special facts, and the jury may, if they think proper, find a general verdict, instead of finding special facts with a view to raise a question of law. Reg. V. Allday, 8 C. & P. 136. Jury of Matrons.] — If a jury of matrons wishes to have the evidence of a surgeon before they give their verdict, they should return into court, and the surgeon should be examined as a witness in open court. Reg. v. Wycherley, 8 C. & P. 262. Proof of Value of Article.] — Where, in a criminal prosecution, it is essential to prove the particular value of an article, the jury may use that general knowledge which any man can bring to the subject ; but if any of the jurors has a particular Imowledge on the subject, aris- ing from his being in the trade, he ought to be awora and examined as a witness. Rex v. Roiser, 7 C. & P. 648. Swearing Jurors.]— By 30 & 31 Vict. c. 35, s. 8, a juror in any eriminal proceeding refusing or Icing v/iiwilling, from alleged oonscientious motices, to he sworn, may tc permitted, on the court being satisfied of the sincerity of the ob- jection, to majte a solemn affirmation or declara- tion. A Scotch covenanter may be sworn in as a juryman in a court of criminal law by the cere- mony of holding up his hand, withdut kissing the book. Walker's case, 1 Leach, C. C. 498. Person Sworn by Mistake.] — Upon trial of a prisoner for murder, the name of Joseph Henry Thorne was called from the jury panel as a juror to try him, when William Thorniley, who was also upon the jury panel, by mistake answered to the name, went into the jury- box, and, not being ohalleHged, was duly sworn ; the trial, proceeded, and the P^^zg-fj^'p'^/^^OSa victed and sentenced. The mistake was not dis- covered till the following day : — Held, that this was not a question of law arising at the trial over which the Court of Criminal Appeal had jurisdiction. Beg. v. Mellor, Dears. & B. C. C. 468 ; 7 Cox, C. C. 454 ; 27 L. J., M. C. 121 ; 4 Jnr.,-N. S. 214. Held, also, that therei had been no mis-trial, but quaere whether the objection made would be matter of error. H>. Where on the trial of an indictment for per- jury, it was necessary to swear talesmen from the common jury panel, and one J. Williams being called, his son E. H. Williams (at the request of his father, and without collusion) appeared for him and was sworn and served on the jury, he not being of age, neither having a qualification, not being on the panel : — Held, that there, was i\, mis-trial, and a rule obtained for a new trial was made absolute. Rex v. Tremaine, 7 D. & R. 684 ; 5 B. & C. 254. A juror was summoned in error, but not re- turned in the panel, and in mistake was swona to try ; during the progress of the trial, these facts were discovered. The jury was discliarged, and a fresh jury constituted, by taking another juryman in the place of the one who had served in error. Reg. v. Phillips, 11 Cox, C. C. 142. One Juryman a Grand Juryman.] — After a special jury had been sworn for the. trial of a defendant for a misdemeanor, one of the jury stated that he had sat on the grand jury who found the bill. It was proposed on behalf of the prosecution that the juryman should retire from the box, but the defendant refused to assent to that course ; the trial proceeded, and the defen- dant was convicted. The defendant afterwards moved for a new trial on the ground of a mis- trial, but the court refused to grant him a rule. Reg. v. SuUh-an, 1 P. & D. 96 ; 8 A. & E. 31 ; 1 W., W. & H. 610. 3. Challenges. ♦ Statute.] — By 6 Geo. 4, c. 50, s. 29, in all inquests to be taken before the couH of King's Bench, and all courts of oyer and terminer and gaol delivery, wherein the king is a party, how- soever it be, notwithstanding it be alleged by them that sue for the Mng, that the jurors of those inquests, or some of them, be not indifferent for the king, yet such inquests shall not remain untahen for that cause ; but if they that sue for the Mng will challenge any of those jurors, they shall assign of their challenge a cau-ic certain, and the truth of the same challenge shall be inquired of according to the custom of the court ; and it shall be proceeded to the taking of the same inquisitions as it shall be found, if the challenges be true or not, after the discretion of the court, and no person arraigned for murder or felony shall be admitted to any peremptory challenge above the number of twenty. By 7 & 8 Geo. 4, o. 28, s. 3, if any person in- dicted for any treason, felony, or piracy, shall challenge peremptorily a greater number of the msn returned to be of tlie jury than suck person is entitled by law so to challenge, in any of the said cases every peremptory challenge beyond the number allowed by law in any of the said cases shall be entirely mid, and the trial of such person shall proceed as if no such challenge had .been made. 717 CRIMINAL LAW — Jmies and Challenges. 718 At what Stage.] — The challenge of a juror, either by the crown or by the prisoner, must be before the oath is commenced. The moment the oath is begun it. is too late. The oath is begun by the juror taking the book, having been directed by the officer of the court to do so ; but if the juror takes the book without authority, neither party wishing to challenge is to be prejudiced thereby. Reg. y. Frust, 9 G. & P. 136. After issue joined between the crown and the prisoner when the jury is called, and before they are sworn, is the only time when the prisoner has the right of challenge. Iteg. v. £^ey, 3 C. & K. 371 ; T. & M. 62, 63 ; 2 Den. C. C. 351 ; 15 Jur. 1065. The challenge must be made before the book is given into the hands of the jury, and before the officer has recited the oath, and it is too late, though made before the juror kisses the book. Jieg. V. Oiorgctti, 4 F. i; l'\ 546. No challenge, either to the array or to the polls, can be taken until a full j ury has appeared ; there- fore, where the challenges are taken previously, they are irregularly made, and out of season. Rex V. Edmonds, 4 B. & A. 471. No jury can be challenged until a full jury ap- pears in the box. Reg. v. Lacey, 3 Cox, C. C. 517. Number of Challenges.] — In a criminal infor- mation for conspiracy; where the trial takes place before a special jury struck under the old system, the traverser is entitled to six challenges from the reduced panel : — Held (per Barry, J., Fitzgerald, J., dissentiente), that the doctrine on this point is correctly stated by May, C. J., in Reg. V. Casey (13 Cox, C. C. 645). Reg. v. Paniell (No. 2), 14 Cox, 0. 0. 505. Grounds of Challenge to Polls.] — On the trial of an indictment for a riot, it is ground for the prosecutor's challenging a juror, that he is an inhabitant of the town where the riot occurred, and that he has taken an active part in the matter which led to it. Reg. v. Swain, 2 M. & Eob. 112 ; 2 Lewin, C. 0. 116. The fact that a juror is over sixty years of age is not a ground of challenge. Mulcaliy v. Reg. Qln erroi^, 3 H. L. Cas. 306 ; and 1 Ir. R., 0. L. 13. Alienage is a ground of challenge to a juror ; but if the party has an opportunity of making his challenge, and neglects, he cannot afterwards make the objection. Rex v. Sutton, 8 B. & C. 417 ; S. a, nom. Rex v. Despard, 2 M. & E. 406. In a case of felony, after a prisoner has chal- lenged twenty of the jurors peremptorily, he may still examine any other of the jurors who are sub- sequently called, as to their qualification. Reg. V. Beach, 9 C. & P. 499. It is no cause of challenge of a juror by the counsel for the prosecution in case of felony, that the juror is a client of the prisoner, vrho is an attorney. lb. Nor that the juror has visited the prisoner as a friend since he has been in prison. lb. It is not a ground of challenge that a juroi on other trials has not found a verdict for the crown. Sawdon's case, 2 Lewin, C. C. 117. For Cause Shewn.] — If, on the trial of a case of felony, the prisoner peremptorily challenges some of the jurors, and the counsel for the prose- cution also challenges so many that a full jury cannot be had, the proper course is to call ovoi" the whole of the panel in the same order as before, only omitting those who have been peremptorily challenged by the prisoner, and, as each juror then appeal's, for the counsel for the prosecution to state their cause of challenge ; and if they have not sufficient cause, and the prisoner does not challenge, for such juror to be sworn. Beg. T. Geach, 9 C. & P. 499. Upon a challenge for cause, the perabn making the challenge must be prepared to prove the cause. Rex V. Savage, 1 M. C. 0. 51. On the trial of a misdemeanor on the crown side of the assizes, it is a fair mode of practice to allow the defendants to object to the jurors, as they are called, witharat shewing any cause, till the panel is exhausted, and then to recall the jurors in the same order in which they were called at first, and then not to allow any challenge except for cause, and this is the constant practice on the Welsh circuit, where challenges of jurors very frequently occur. Reg. v. Blaheman, 3 C. & K. 97. Peremptory Challenges.] — There can be no peremptory challenges in collateral issues. Rex V. RatcUffe, 1 W. Bl. 3. The right of a prisoner to a peremptory chal- lenge of jurors to the number of twenty exists in all cases of felony, and is not confined to those which are punishable capitally. Gray v. Reg. (in error), 11 C. & F. 427 ; 8 Jur. 879. Challenge to Array.] — It is no objection in arrest of judgment that the sheriff, who was the prosecutor, returned the jury ; it ought to have been taken by way of challenge. Rex v. Sliep- pard, 1 Leach, C. C. 101. Challenge to the array is only where the sheriff has been guilty of wilful default, and the summoning of the jury is a duty purely minis- terial. Reg. V. Burlie, 10 Cox, C. C. 519. Where the sheriff's officer had neglected to summon one of the special jurymen returned on the panel : — Held, that this was no ground of challenge to the array. for unindifferency on the part of the sheriff. Rex v. Edmonds, 4 B. & A. 471. A challenge of the array, stating that the sheriff " has not chosen the panel indifferently and impartially, as he ought to have done, and that the panel is not an indifferent panel," is bad, as being too general. Reg. v. Suglies, 1 C. & K. 235. Challenging Jury afresh on Second Trial.] — Where a prisoner was found guilty on an indict- ment for larceny, which contained a count for a previous conviction, and, after conviction for the larceny, the court thought fit to swear the jury afresh to try the question of whether, the prisoner had been previously convicted : — Held, that he was not entitled to challenge the jury afresh. Reg. V. Key, T. & M. 623 ; 2 Den. C. C. 347 ; 3 0. & K. 371 ; 21 L. J., M. C. 35 ; 15 Jur. 1065. Challenging Jury afresh when one Juryman taken lU.] — ^See Rex v. Edwards and Reg. v. Beere, ante, col. 714. Power of Prisoner to Withdraw.] — A prisoner, in a case of felony, having challenged twenty jurors peremptorily, cannot withdraw one of Digitized by Microsoft® 719 CRIMINAL LAW— Jwnes and Challenges. 720 those challenges to challenge another jury, in- steaa ot one that he had previously challenged. Bex V. Parry, 7 C. & P. 836 ; 1 Jur. 674. Ordering Jurors to Stand by.]— The right of ordering jurors to stand by, in cases of misde- meanor, may be exercised by a private prosecutor equally with the crown. Beg. v. WGowen, 11 Ir. C. L. R. 207. On a writ of error upon an indictment for murder, the record stated, that in forming the jury, after challenges by the crown without cause assigned, and by the prisoner, nine only of those called were elected to be sworn. Twelve of the jurora returned upon the panel were dur- ing that time deliberating upon their verdict in another case. Thereupon the name of I., who had been before ordered to stand by upon a chal- lenge by the crown without cause being assigned, was again called, and being again challenged by the crown, the counsel for the prisoner prayed that the crown might be put to assign cause. Before any judgment was given by the court the twelve jnrora who sat as the jury in the other case came into court and gave their verdict. There- upon the counsel for the crown prayed that I. should be ordered to stand by until those twelve should be called. The counsel for the prisoner objected that I. should be sworn, unless good cause of challenge was assigned by the crown. The court adjudged that I. should stand by, and that the names of the jurors who so came into court should then be called instead of the name of P., who stood next after I. The three required to complete the panel were taken from those jurors : — Held, that, it being conceded that the 33 Edw. 1, St. 4, and 6 Geo. i, c. 50, s. 29, did not take away the power of the crown to challenge without assigning cause till the panel had been gone through or perused, the panel had not been gone through or perused, so as to require the crown to assign cause of challenge, when the twelve jurors came into court, nor until their names had been called, and thereupon the judge was right in ordering I. to stand by the second time. Mansell v. Reg. (in error), 8 El. & Bl. 54 ; Dears. & B. C. C. 375 ; 27 L. J., M. C. 4— Ex. Ch. The record stated that P., named on the panel, was called, and elected, and tried, to the intent that he should be sworn ; without being sworn, he said that he had conscientious scruples against capital punishment. The counsel for the crown prayed that he should be ordered to stand by. The counsel for the prisoner prayed that the crown should assign cause of challenge. The judge told him that if he felt that he could not do his duty he had better withdraw ; and there- upon it was ordered by the court that he should stand by : — ^Held, that this was a ahallenge by the crown without assigning cause, and therefore the judge was right in ordering P. to stand by. n. Held, that the statement that the court ordered jurymen to stand by was unobjectionable, as it meant, that, being challenged by the crown, they were to stand aside until the proper time for deciding upon the challenge arrived. lb. Order in which Names Called.]— The names of the jurors who had served in the other case, standing in different parts of the panel, were called over consecutively before any who had been already called once were called again :— Held, that this was a proper course ; that there Digitized by Microsoft® was no fixed rule of practice as' to the order in which the names of the jurors on the panel should be called ; and that if the usual course was departed from it was not ground of error. li. Talesmen — Who may be.] — "Where, on an indictment for the publication of a libel (ap- pointed to be tried by a special jury), a tales panel was quashed for unindifEerency in the sheriff : — Held, that a writ of venire facias juratores might be awarded to the coroner of the county, although two of the special jurors sum- moned attended on a former occasion ; and upon a prayer for an award of a tales de circumstanti- bus at nisi prius, it is not compulsory on the coroner or sheriff to select the talesmen from among the bystanders accidentally in court ; but they may be chosen from among persons pre- viously appointed by the coroner or sheriff to be in attendance, in expectation that a tales would be necessary. Rex v. Dolly, 3 D. & E. 311 ; 2 B. & C. 104. Since 7 & 8 Will. 3, c. 32, talesmen can only be taken from the panel of the jury summoned to try the other causes, and not from the bystanders. Rex V. Sill, 1 C. & P. 667. On the trial of a quo warranto, which has been made a special jury cause, jurors who have been summoned to try the prisoners on the crown side of the assize are not thereby qualified to act as talesmen. Rex v. Tipping, 1 C. & P. 668, Warrant.] — The warrant for a tales on a trial in a county palatine must come from the king's attorney-general. Rex v, Zamb, 4 Burr. 2171. Semble, that, in an information at the suit of the attorney-general, a tales may be prayed for the crown without his warrant, though he is not present ; but not for the defendant. Att.- Gen. V. Parsons, 2 M. & W. 23 ; 2 Gale, 227. Some Special Jurymen not Summoned.] — On the trial of an information for a libel, only ten special jurymen appeared, and two talesmen were accordingly sworn to fill up the jury : — Held, to be no ground for a new trial that two of the non-attending special jurymen named in the panel had not been summoned to attend, although it appeared that this fact was unknovm to the defendant until after the trial was over. Rem v. Mmit, 4 B. & A. 430. Challenge to array of.] — On the trial at nisi prius of an indictment for libel, on which only three special jurors appeared, the counsel for the prosecution prayed a tales, and the defendant challenged the array of the tales, on the ground that the sherifi was a subscriber to a society who were the prosecutors; and, on issue taken on this challenge, two triers were appointed by the court, who found in favour of the chal- lenge, and the cause was made a remanet. Rex V. Dolby, 1 C. & K. 238. 4. View. When Permitted.] — Where, on the trial of a rape, it was wished on the part of the prisoner that the jury should see the place at which the offence was said to have been committed, and the place was so near to the court that the jury 2 B 721 CEIMINAL LAW — Juries and Challenges. 722 could have a view without inconvenience, the judge allowed a view, although the prosecutor did not consent to it. Reg. v. Whalley, 2 C. & K. 376, The court will only under peculiar circum- stances grant a view in an indictment for per- jury ; but a view will be refused if there is any risk of its misleading the jury. Anon., 2 Chit. 422. An inspection by the jury of the locus in quo may be directed by the court in a criminal case. Reg. V. Whalley, 2 Cox, 0. C. 231. After Sunumng-np.] — It is no irregularity to allow a jury in a criminal case to have a view of premises after the judge has summed up. Reg. V. Martin, 1 L. K., 0. C. 378 ; 41 L. J., M. C. 113 ; 26 L. T. 778 ; 20 W. R. 1016 ; 12 Cox, C. C. 204. Venue Changed.] — ^When it appears to be necessary for the purpose of a criminal trial that the jury should have a view of premises situated in a different county from that in which the offence was committed, this is sufS.cient reason for ordering the trial to take place in such county. Reg. v. Sheldon, 32 L, T. 27. 5. Locking up. Juryman ill.] — If after a jury is locked up to consider their verdict in a capital case one of them is iU, the judge will . allow a medical man to see him, and anything which the medical man in his discretion will give him bonS, fide as medicine he may have, but not sustenance. Reg. V. Newton, 3 C. & K. 85 ; 13 Q. B. 716 ; 3 Cox, C. C. 489 ; 18 L. J., M. C. 201 ; 13 Jur. 606. Kon-arrival of Witnesses.] — After a trial for murder had commenced, it was ascertained that a witness had not arrived, but was expected by a train. The judge ordered the jury to be locked up until the arrival of the witness, had another jury called, and proceeded with another cause. Reg. V. Forster, 3 C. & K. 201. In Cases of Misdemeanor.] — Upon the trial of an indictment for a misdemeanor, which con- tinued for more than one day, the jury, without the knowledge or consent of the defendants, separated at night : — ^Held, that the verdict was not therefore void. Rex v. Kinnedr, 2 B. & A. 462. 6. Discharge op. How long Jury should be kept.] — After the jury has retired to consider their verdict in a criminal case, whether felony or misdemeanor, and has remained in deliberation a full and sufficient time without being able to agree upon a verdict, it is in the discretion of the judge to discharge them if there is no reasonable prospect of their agreeing upon a verdict. Winsor v. Reg. (in error), 1 L. K., Q. B. 289 ; 35 L. J., M. C. 121 ; 12 Jur., N. S. 91 ; 14 L. T. 195 ; 14 W. K 423 ; 6 B. & S. 143. Affirmed on appeal, 1 L. R., Q. B.-390 ; 35 L. J., M. C. 161 ; 12 Jur., N. S. 561 ; 14 L. T. 567 : 14 W. R. 695 : 7 B. & S. 490 —Ex. Ch. Hatter of Discretion.] — The exercise of such discretion by a judge cannot be reviewed by a court of error. Jb, Effect of Discharge on Prisoner.] — ^The maxim that a man cannot be put in peril twice for the same offence, means that a man cannot be tried again for an offence upon which a verdict of acquittal or conviction has been given, and not that a man cannot be tried again for the same offence where the first trial has proved abortive, and no verdict was given. lb. Where, in a case of misdemeanor, the jury is improperly and against the will of the defendant, discharged by the judge from giving a verdict after the trial has begun, this is not equivalent to an acquittal, nor does it entitle the defendant quod erat sine die. Reg. v. Cliarlesworth, 1 B. & S. 460 ; 9 Cox, C. C. 44 ; 31 L. J., M. C. 25 ; 8 Jur., N. S. 1091 ; 5 L. T. 150 : 9 "W. E. 842 : S. C, at nisiprius, 2 F. & F. 326. Where a man was indicted, pleaded not guilty, and was given in charge to the jury, who retired to deliberate, and had not agreed upon a verdict by the time all the rest of the business before the court was finished, when they were discharged by the judge and the prisoner remanded: — Held, that the dismissal of the jury was not equivalent to an acquittal, and that he might lawfully be put upon his trial the second time. Reg. v. Davismi, 2 F. & F. 250 ; 8 Cox, C. C. 360. By Consent.] — A jury may be discharged by consent, after having been charged. Reg. v, Beane, 5 Cox, C. C. 501. One Juryman leaving without Permission.] — In the course of the trial, and during the exam- ination of witnesses, one of the jurors had, without leave, and without it being noticed by any one, left the jury-box and also the court house, whereupon the court discharged the jury without giving a verdict, and a fresh jury was empanelled. The prisoner was afterwards tried and convicted before a fresh jury : — Held, that the course pursued was right. Reg. v. Ward, 10 Cox, C. C. 573 ; 171.. T. 220 ; 16 W. E. 281. Grounds of — ^Belation to Prisoner.] — If during the trial of a felony it is discovered that the prisoner has a relation on the jury, this is no ground for discharging the jury. Rig. v. Wardle, Car. & M 647. 7. Jtjht Peocess. (15 ^- 16 Vict. c. 76, ss. 104, 105.) The jury process in an indictment for a con- spiracy was made returnable on one of the three days before full term ; and on the same day a con- tinuance by a new venire was awarded. Held not erroneous ; inasmuch as the return day was con- formable to 1 Will. 4, c. 3, s. 2, and the court, though not sitting for the dispatch of business before full term, might award the continuances on the return days. Wriglit v. Reg. (in error"), 14 Q. B, 148 ; 14 Jur. 305— Ex. Ch. Held, also, that, even if there had been a dis- continuance in the jury process, the defendant waived the objection by afterwards pleading guilty to the indictment. lb. Two defendants being indicted for conspiracy, one of them cannot, on writ of error, object to a Digitized by Microsoft® 723 CRIMINAL LAW — Counsel, Addresses to Jury, dc. 724 discontiniiance in the process against the other. An indictment at quarter sessions contained two counts : one charging a stealing of moneys above the value of 51. in a dwelling-house ; the Particular other charging simply a stealing of moneys of Offences. the same description as those contained in the first. The jury process directed the jury to be summoned to inquire if the prisoners were guilty of the felony in the indictment specified ; and the verdict found them guilty of the felony aforesaid. Upon that verdict they were adjudged to be transported for fourteen years. The judg- ment was reversed in the Queen's Bench, with a direction that a venire de novo should be awarded by the sessions : — Held, first, that the jury process had been misawarded in the first instance, and therefore a venire de novo had been properly awarded by the Queen's Bench ; and that it was no objection that judgment had been given upon the prisoners by the sessions. Cam.pieU v. Reg. (in error'), 11 Q. B. 799; 17 L. J., M. C. 89 ; 12 Jur. 117— Ex. Ch. Held, secondly, that the direction to award a venire de novo was not void, inasmuch as the sessions, being a court of oyer and terminer, is not an inferior court, and is a continuing court of oyer and terminer. lb. The record in an indictment set out an award of the venire to the sheriff, which required him to return " good and lawful men of the county," and stated that the sherifE returned persons following (naming them), but the return did not state that the persons named were " good and lawful men of the county :" — Held, that the jurors must be taken to have been good and law- ful men of the county. Mansell v. Beg. (in error), 8 El. & Bl. 54 ; Dears. & B. 0. C. 375 ; 27 L. J., M. C. 4. The 16 & 17 Vict. c. 113 (Ir.), s. 109, which prescribes the summoning of jurors to try civil as well as criminal issues, according to the precept of the judge of assize, does not interfere with the common law authority of justices of gaol delivery to order a jury to be returned instanter, when, from the' panel having been quashed, or for any other reason, a sufficient jury cannot otherwise be had. O'Neill v. Reg., 6 Cox, C. C. 495 ; 4 Ir. C. L. B. 221. 8. Questions fok Juey. Construction of unlawful Notice] — The prisoner was indicted under the Whiteboy Act for posting a notice to the following effect ■.— "G. T. is hereby declared boycotted by the competent tribunal for taking into his employ- ment Stanley, the assassin. All Irishmen must shun him as their deadly enemy." The indict- ment alleged that the notice tended (1) to excite an unlawful confederacy ; (2) to excite a not ; (S) to induce persons to shun George Thompson against the form of the statute. The ]udge at the trial, upon the requisition of the counsel tor the Crown, ruled that the notice on the face ot it was an unlawful notice within the meaning ot the statute, but reserved for the court the point whether he should have so ruled or should have left the question to the jury. The jury, m answer to the only question submitted to them, found that the prisoner had in fact posted the notice and the prisoner was accordingly con- victed :— Held, that the notice was capable ot bearing the meaning alleged ^^Ql^-^f^^^^^^^^j^^ but that the question whether it did in fact bear such meaning should not have been withdrawn from the jury. Reg. v. Ooady, 15 Cox, C. C. 89. Cases.] See B. Paeticulae V. COUNSEL, ADDRESSES TO JURY, &c. 1. Counsel for Prosecution. 2. Defence iy Counsel, 725. 3. Right of Reply and Sunmdng up EvideTioe, 729. 1. Counsel fob Pkosecution. Duties of.] — It is a general principle of criminal procedure, that counsel for the prosecu- tion should consider themselves not merely as advocates for a party, but as ministers of justice, and inot as struggling for a verdict, but as as- sistants in the ascertainment of truth according to law. Reg. v. Berens, 4 F. & F. 842. It is the duty of the counsel for the prosecu- tion to be assistant to the court in the further- ance of justice, and not act as counsel for any particular person or party. Reg. v. Swrsjield, 8 0. & P. 269. The fiction of law in criminal cases is, that the judge is coimsel for the prisoner. It is a violation of this principle, and indecent, to con- stitute the judge counsel for the prosecution, and leav,e him to make out from the depositions a case against the prisoner. Therefore, all pro- secutions ought to be conducted by counsel, and the court will in all cases direct the depositions to be handed to counsel for that purpose. Reg. V. Page, 2 Cox, C. C. 220. Where no counsel is engaged for the prosecu- tion, and the depositions are handed, by direction of the court, to a gentleman at the bar, he should consider himself as counsel for the crown, and act in all respects as he would if he had been instructed by the prosecutor ; and should not consider himself merely as acting in assistance of the judge, by examining the witnesses. Reg. v. Uttleton, 9 C. & P. 671. Whether Prosecutor can Conduct Case in Per- son.] — A prosecutor conducting his case in per- son, and who is to be examined as a witness in support of the indictment, has no right to address the jury as counsel. Rex f. Brice, 2 B. & A. 606 I 1 Chit. 362. In a criminal prosecution it is not competent to the prosecutor to appear and conduct the case in person. Reg. v. Ourney, 11 Cox, C. C. 414. Opening Case for Prosecution.] — In opening the case for the prosecution in felony counsel ought to state declarations proposed to be proved, as well as facts. Rex v. Orrell, 1 M. & Bob. 469 ; S. P., Rex v. Davis, 7 C. & P. 783 ; Rex V. Hartel, 7 C. & P. 773. Unless the declarations amount to a confes- sion ; and then they should not be opened. Rex V. Davis, 7 C. & P. 783 ; S. P., Rex v. Hartel, 7 C. & P. 773. Where there is counsel for the prisoner, the counsel for the prosecution ought always to open the case ; but he should not open if the prisoner has no counsel, unless there is some peculiarity in the facts of the case to require it. Rex v. eigne, 1 C. & P. 772. 'icrosoft® 2 B 2 725 CEIMINAL LAW — Counsel, Add/fesses to Jwry, dc. 726 The counsel for the prosecution, in opening a ' ease of murder, has a right to put hypothetically the case of an attack upon the character of any particular witness for the crown, and to state that if such attack should be made, he should be prepared to rebut it ; he also has a right to read to the jury the general observations of a judge, made in a case tried some years before, on the nature and effect of circumstantial evidence, if he adopts them as his own opinions, and makes them part of his own address to the jury. Beg. v. Cowrvoisier, 9 C. & P. 362. If additional evidence is discovered during the progress of a case, the counsel for the prosecution is not at liberty to open the nature of such evidence in an additional address to the jury. /*. Counsel for the prosecution opening no case against one prisoner, statements made by that prisoner are not to be used except in a regular way of evidence. Me/), v. Gardner, 9 Cox, C. C. 332. 2. Defence by Counsel. Statute.]— By 6 4; 7 Will. 4, c. 114, s. l,per- ions tried for felonies, after the close of the case for the prosecution, may maJte full answer and defence thereto ty counsel. By s. 2, in all cases of summary conviction, persons accused shall ie admitted to make their full ansicor and defence, and to ha^e all luit- ■nesscs examined and cross-examined by covnsel. Eepealed by 11 & 12 Vict. o. 43, s. 36, but re- placed by the same act, s. 12. By 28 & 29 Vict. c. 18, s. 2, upon every trial for felony or misdemeanor, tuhether the prisoners or defendants, or any of them, shall ie defended iy counsel or not, each and every such prisoner or defendant, or his or their counsel respectively, shall he allowed, if he or they shall think fit, to open his or their case or cases respectively ; And after the conclusion of such opening, or of all such openings, if more than one, such prisoner or prisoners, or defendant or defend- ants, or their counsel, shall be entitled to examine such witnesses as he or they may think fit, and when all the evidence is concluded, to sum up the evidence respectively ; and the right of reply, and practice and course of pro- ceedings, save as hereby altered, shall be as at present. Queen's Counsel.]— On the trial of a criminal information a Queen's counsel ought not to be counsel for the defendant without a licence from the Queen, or at the least a letter from the secre- • tary of state ; and it is not enough that an appli- cation for a licence has been sent to the secretary of state from an assize town in the country, to which no answer has been received at the time of the cause being tried. Req. v. Bartlett, 2 C. & K. 321. Where a Queen's counsel was instructed to argue a criminal case for a defendant, on a point reserved, but at the time iixed for the argument, had not obtained a licence from her Majesty to argue against the crown, but only a certificate from the secretary of state's office, the court directed the argument to stand over for such licence to be obtained. Reg. v. Jones, 9 C. & P 401 ; 2 M. C. C. 171. Assignment by the Court.]— The court rmay properly request counsel to give his honorary services to a prisoner. Alitor, with an attorney. But the court will recommend, that, in such cases, the crown should pay the fees both of counsel and attorney, as assigned. Reg. v, Fogarty, 5 Cox, C. C. 161. On a trial for murder, the court refused to allow counsel to appear for a prisoner without his expressed assent. Meg, v. Yscuado, 6 Cox, C. C. 386. Order of Defending several Prisoners.] — Where the counsel for several prisoners cannot agree as to the order in which they are to address the juiy, the court will call upon them, not in the order of their saniority, but in the order in which the names of the prisoners stand in the indict- ment. But where the counsel for one prisoner has to examine witnesses to facts, the counsel for another cannot be allowed to postpone his address to the jury until after those witnesses have been examined. Reg, y. Barber, 1 C. & K. 434. Where two prisoners are jointly indicted, and the second in the indictment only is defended by counsel, the latter will be permitted to address the jury before the other makes his statement, notwithstanding the rule established in Reg. v. . Richards (1 Cox, C. C . 62). Reg. v. Sazell, 2 Cox, C. C. 220. Where one prisoner was indicted for stealing and the other for receiving, and the receiver was defended by counsel, but the principal felon was undefended, the court called upon the principal to make his, statement to the jury before the counsel for the receiver was permitted to address them. Reg. v. Martin, 3 Cox, C. C. 56. Where two are indicted, one for larceny, and the other as receiver of the stolen property, the latter of whom is defended by counsel, and the former not, the counsel for the receiver should make his' defence first. Reg. v. Belton, 5 Jur., N. S. 276. When several prisoners are defended by dif- ferent counsel, the order of their defences is not to be determined by the seniority of their counsel at the bar, but on the precise offence charged against each ; and in a weU-drawn indictment, the order in which the prisoners should be called on for their defence usually coincides with the order .of their names in the indictment. Reg. v. Meadows, 2 Jur., N. S. 718. Where several persons are indicted for the same offence, the order in which they should be called on to make their defence is not determined by the order in which their names stand in the indictment. Reg. v. Holman, 3 Jur., N. S. 722. Where two were indicted for the same offence, with a second count charging one of them as accessory after the fact, the one named first in the indictment, though he had no counsel, was heard in his defence before the other, who was defended by counsel. Beg. v. Thomas, 3 Jur., N. S. 272. Contents of Address.] — A prisoner's counsel, in addressing the jury, will not be allowed to state anything which he is not in a situation to prove, or which is not already in proof ; nor will he be allowed to state the prisoner's stoiy. Reg. v. Beard, 8 C. & P. 142 ; 8. P., Reg. v. Butcher, 2 M. & Eob. 228. But on an indictment for murder, the death having been caused by shot from a gun in the Digitized by Microsoft® 727 CEIMINAL LAW— CoTOsei!, Addresses to Jury, dc. hands of the prisoner, the prisoner's counsel allowed to make a statement on the part of the Snfl»^^' )f, ^^!^ *l^?t the trigger of tfie gun was pulled without the intention of firing it. Meq. v. Weston, 14 Cox, C. C. 346. The jury should take the law from the judge, and therefore when cases had been cited to the judge m a legal argument and he had given an opinion on them, they were not allowed to be read to the ]ury in the address of the prisoner's " """' *" '■'"- ^- V. Parish, 8 C. & P counsel 94, to them. Addressing Jury again after Evidence offered by other Prisoner.]— Two were indicted for man- slaughter ; the counsel for one of them having addressed the jury on his behalf, the counsel for the second prisoner did the same, and called wit- nesses, whose evidence tended to show negli- gence on the part of the fli-st :— Held, that the counsel for the first prisoner had a right to cross- examine the witnesses for the second, and then to address the jury again, confining himself to comments on the testimony the second prisoner had adduced. Reg. v. Wood, 6 Cox, C. C. 224. Where one prisoner calls a witness who gives evidence tendiiig to criminate another prisoner, the counsel of the latter has a right to cross- examine the witness, and address the jury on his evidence. Meg. v. Zuck or Surdett, Dears. C. C 431 ; 3 C. L. R. 440 : 24 L. J., M. 0. 63 ; 1 Jur. N. S. 119. L., B. and C. were indicted for larceny, and were defended by separate counsel. At the close of the case for the prosecution C. was acquitted by direction of the court, and was afterwards called by L. as his witness. C.'s evidence tended to criminate B. : — Held, that B.'s counsel was entitled to cross-examine the witness C, and reply upon his evidence. li. A. and B. were indicted for manslaughter ; the counsel of A. called a witness, who gave evidence which brought home the crime to B., whereupon his counsel was allowed to examine the witness and address the jury after A.'s counsel had closed his case and had summed up his evidence. Reg. V. Copley, 4 F. & F. 1097. Whether Prisoner and his Counsel may Address Jury.] — If the prisoner's counsel has addressed the jury, the prisoner himself will not be allowed to address the jury also. Reg. v. B&ticher, 8 C. & P. 141 ; S. P., Reg. v. Sv/rrows, 2 M. & Bob. 124. But on the trial of a case of shooting, with intent to do grievous bodily harm, there having been no person present at the time of the offence but the prosecutor and prisoner, the latter was, under these special circumstances, allowed to make a statement before his counsel addressed the jury. Reg. v. Malins, 8 C. * P. 242. But the privilege is not to be considered as a precedent with respect to the general practice in such cases. Reg. v. Walking, 8 C. & P. 243. A prisoner charged with felony, who is defended by counsel, ought not to be allowed to make a statement in addition to the defence of counsel, unless under very particular circum- stances ; and the general rule ought to be, that a prisoner defended by counsel should be entirely in the hands of his counsel ; and that rule should not be infringed, except in very special cases. Reg. v. Rider, 8 C. & P. 531. On a trial for felony, a prisoner, if defended by 728 counsel, ought not to be allowed to make a state- ment to the jury in his defence. Reg. v. Man- zano, 8 Cox, C. C. 321 ; 2 F. & F. 64 ; 6 Jur., N. S. 406. A prisoner will be allowed to make his own statement to the jury, but his counsel cannot be permitted afterwards to address the jury for him Reg. V. Taylor, 1 F. & F. 535. A prisoner on his trial defended by counsel is not entitled to have his explanation of the case to the jury made through the mouth of his counsel, but may, at the conclusion of his counsel's address, himself address the jury and make such statement, subject to this, that what he says will be treated as additional facts laid before the court, and entitling the prosecution to the reply. Reg. v. Shitnmin, 15 Cox, C. C. 1.ZZ. The prisoners, who were defended by counsel, were indicted for maliciously shooting at the pro- secutor, and at the conclusion of the evidence for the prosecution, without waiting for their counsel, they themselves addressed the jury in their de- fence. When they had concluded their observa- tions, the judge permitted their counsel then to address the jury on their behalf. Reg. v. Stephens, 11 Cox, C. C. 669. A foreigner, indicted for felony, being unable to speak English, the proceedings were explained to him by an interpreter., He was defended by counsel, who cross-examined the witnesses for the prosecution ; at the close of which the judge, through the interpreter, acquainted the prisoner that he might choose whether he would make his defence himself or allow his counsel to make it for him, but that both could not be heard. Bea. V. Teste, 4 Jur., N. S. 244, Counsel arguing Points of law.]— On the trial of an indictment for perjury, the judge will allow the defendant to address the jury and cross-examine the witnesses, and his counsel to argue points of law, and suggest ques- tions to him for the cross-examination of the witnesses. Rex v. Parkins, 1 0. & P. 548 : K. & M. 166. Where, on an information for a misdemeanor, the defendant conducts his own defence, counsel may be heard on any point of law which arises. Rex V. White, 3 Camp. 98. But he cannot have the assistance of counsel in examining and cross-examining witnesses, and reserve to himself the right of addressing the jury. IJ>. Number of Counsel for Defence.] — Not more than two counsel are entitled to address the court for a prisoner during the trial upon a point of law. Reg. v. Bernard, 1 F. & F. 240. Appearance by Separate Counsel.] — Several defendants charged in an indictment with dif- ferent illegal acts severed in their defence, and being convicted and sentenced to different punishments, brought separate writs of error : — Held, that they were entitled to appear by sepa- rate counsel, and that such counsel were severally entitled to reply. O'Connell v. Reg. {in error'), 11 C. & F. 155 ; 9 Jur. 25. Objection to being Defended by Counael^Writ of Error.] — On a trial for murder, the prisoner objecting to be defended by counsel, but, in the result, allowing counsel to act for him, he Was Digitized by Microsoft® 729 CEIMINAL LAW — Counsel, Addresses to Jury, d;c. 730 not afterwards allowed to raise any objection to the proceeding, and a fiat for a writ of error was refused. Reg. v. Southey, 4 F..& F; 864. Addresses in Mitigation.] — Where a party had pleaded guilty at the Central Criminal Court to an indictment for libel, and aflSdavits were filed both in mitigation and aggravation, the judges refused to hear counsel on either side, but formed their .judgment of the case by reading the afBda- Tits. Reg. v. Gregory, 1 C. & K. 228. 3. Right of Ebply, and Summing up Evidence. Statute.]— By 28 & 29 Vict. c. 18, s. 2, if any prisoner or prisoners, defendant or defendants, sliall ie defended T>y counsel (find l>ys.^,tTie word cimnsel includes attorneys where attorneys are allowed iy law, or iy the practice of any court, to appear as advocates'), hut not otherioise, it sliall be the duty of the presiding judge, at the close of the case for the prosecution, to ash the counsel for each prisoner or defendant so de- fended hy counsel whether he or they intend to addiice evidence ; and in the event of none of them thereupon amiouncing his intention to adduce evi- dence, the counsel for tlie prosecution shall ie allowed to address the jury a second time in sup- port of his case, for thopurpose ofs^i/mming up tlie evidence against such prisoner or prisoners, or defendant or defendants. Prosecution — Bight to sum up when Prisoner calls no Witnesses.] — It being a general principle of criminal procedure, that counsel for the pro- secution should consider themselves not merely as advocates for a party, but as ministers of justice, and not as struggling for a verdict, but as assistants in the ascertainment of truth ac- cording to 'law ; therefore, counsel for the pro- secution ought not to exercise their right of siunming up the evidence where the prisoner calls no witnesses, unless counsel really, in their discretion, deem it to be necessary for the pur- poses of justice. Reg. v. Berens, 4 F. & T. 842. Under 28 & 29 Vict. c. 18, s. 2, the counsel for the prosecution ought not, when the prisoner calls no witnesses, to sum up the evidence. Reg. v. Wehh, 4 F. & F. 862. Contents of Sxuuming up.] — The counsel for the prosecution ought not, in summing up the evidence, to make observations on the prisoner's not calling witnesses, unless at all events it has appeared that he might be fairly expected to be in a position to do so. Neither ought counsel to press it upon the jury that, if they acquit the prisoner, they may be considered to convict the prosecutor or prosecutrix of perjury. Req. v Puddich, 4 F. & F. 497. Beply before Evidence in Beply.] — Where counsel for the prosecution, intending to put in evidence in reply, begins his reply to the jury before doing so per incuriam, he ought not, there- fore, to be debarred from the right to put in his evidence in the usual course. Req. v. White, 2 Cox, C. C. 192. Beply to Prisoner's Statement.] — ^A pri- soner on his trial defended by counsel is not entitled to have his explanation of the case to the jury made through the mouth of his counsel, but may, at the conclusion of his counsel's address, himself address the jury and make such states ment, subject to this, that what he says will be treated as additional facts laid before the court, and entitling the prosecution to the reply. Reg, V. Shimmin, 15 Cox, C. C. 122. When Beply allowed,] — A statement of facts not intended to be proved gives a reply to the counsel for the prosecution. Reg. v. Butcher, 2 M. & Rob. 228. It is entirely at the discretion of the prose- cutor's counsel, whether he will exercise his right of reply or not. Rex v. Wliiting, 7 C. & P. 771. The counsel for the crown, where the crown is the defendant in a writ of error, is not necessarily entitled to the final reply, though the crown is the real litigant party. O'Connell v. Reg. (in error), 11 C. & F. 155 ; 9 Jur. 25. The prosecuting counsel ought not to reply where witnesses are called to character only. Patteson's case, 2 Lewin, C. C. 262. A prosecutor's counsel has, iu strictness, the right of reply, though the counsel for the prisoner only calls witnesses to character. Rex v. Stan- nard, 7 C. & P. 673. Witnesses merely called as to character do not give the counsel for the prosecution a reply. Reg. V. Bowse, 4 F. & F. 492. Several Prisoners — Evidence Adduced by Some only.] — ^A. was charged with feloniously carnally knowing and abusing a girl under ten. B. was charged with being present, aiding and abetting. A.'s counsel called no witnesses ; B., who had no counsel, called a witness to prove an alibi for A. : — Held, that the evidence was in effect evidence for A., and that, in strictness, the counsel for the prosecution had a right to reply on the whole case, but that it was summum jus, and ought to be exercised with great forbearance, Reg. V. Jordan, 9 C. & P. 118. Three were indicted for murder, and witnesses were called for the defence of one only : — Held, that the counsel for the prosecution was entitled to reply generally, and was not to be limited in his reply as against the prisoner for whom the witnesses were called, although the evidence ad- duced for the one did not affect the case as it respected the other two, but if the evidence against two affect them with different offences, such as larceny and receiving, ■ and one calls witnesses, there is no right of reply against both, Reg. V. Blachhunie, 3 C. & K. 330 ; 6 Cox, C. C. 333. Two being- indicted for night poaching, the defence being on the question of identity, one of them calling witnesses to prove an alibi, the other calling no witnesses, the counsel for the prosecution was allowed a general reply on the whole case as against both. Req. v. BHqas, 1 F. & F. 106. '^^ The prisoners were indicted for obtaining goods by false pretences and conspiracy to defraud. At the close of the evidence for the prosecution, witnesses were called for the defen- dants Welham and Schneider only, whose evidence was applicable to their respective cases only, and did not affect the cases of the other defendants : — Held, that the counsel for the prosecution should confine his reply to the cases of Welham Digitized by Microsoft® 731 CEIMINAL 'LK^— Evidence. 732 Beg. T. Trevelli, 15 Cox, C. C. and Schneider, 289. Where there are several prisoners, and they sever in their defences, if one should call wit- nesses and the others not, the right of reply is in practice confined to the case against the prisoner who has called witnesses. Mea. v. Bun-ton. 2 F. & F. 788. A. and B. were indicted for manslaughter ; the counsel of A. called a witness, who gave evidence which brought home the crime to B., whereupon his counsel was allowed to examine the witness and address the jury after A.'s counsel had closed his case and had summed up his evi- dence ; the counsel for the prosecution being entitled to a general reply. Meg. v. Copley, i F. & F. 1097. By the Attorney or Solicitor-General.] — The attorney-general may reply with new matter in collateral issues, though no evidence is given for the prisoner. Ilex v. Ratcliffe, 1 W. Bl. 3. Where the attorney-general or a king's counsel states that he appears officially to conduct a pro- secution on an indictment for misdemeanor, he is entitled to reply, though the defendant calls no witness. Hex v. Marsden, M. & M. 439. Martin, B., intimated that he thought the right of reply on behalf of the crown a bad practice, and that he should confine the right to the attor- ney-general of England in person. Reg. v. Christie, 1 F. & F. 75. The right of reply, where no evidence is called for the defence on behalf of the crown, in Mint cases, was not admitted. Reg. v. Taylor, 1 F. & F. 535. In a prosecution by the post-office for a felony, it being stated by the counsel for the prosecution that he appeared as representative of the attorney- general ; on the ground of his representing the attorney-general, he was entitled to reply with- out reference to the prisoner's having called witnesses or not. Reg. v. Gardner, 1 C. & K. 628. „ In conducting prosecutions for the post-office, where the solicitor-general appears on behaU of the attorney-general, he has, on the part of the crown, the right to reply on the whole case, although the prisoner calls no witnesses. . Reg. v. ToaUey, 10 Cox, C. C. 406; S. P., Reg. v. Barrow, 10 Cox, C. C. 407. . The attorney-general for the county palatine, though prosecuting in person, has no right to reply. Reg. v. Christie, 7 Cox, C. C. 506. In a prosecution directed by the poor law board, counsel for the crown cannot claim the right to reply where the prisoner calls no witnesses. Reg. V. Beckwith, 7 Cox, C. C. 505. VI. EVIDENCE. 1. Confessions and Admissions. a. Confessions, when Admissible, 732. b. Other Points relating to Confessions, 744. e. Admissions other than Confessions, 745. d. Proof of, 748. 2. Depositions. a. Form and Contents, 752. i. Duties of Magistrates, 754. c. When Admissible in Evidence, 755. d. Copies, 763. e. Examination on— Putting in, &c,,_7bl- 3. Presumptions or ProiaMlities of Guilt, 767. 4. Accomplices, 767. 5. Government Spies, 770. 6. Competency of Witnesses, 770. 7. Compelling Attendance, 775, 8. Swearing, 775. 9. Ordering to Leave Court, ITI. 10. Karnes on Bach of Indictment, 777. 11. Declarations in Articulo Mortis. — See MUBDBB. 12. Examining and Cross-examining Witnesses, 779. 13. Decliniiig to Answer, 781. 14. Evidence to Character, 782. 15. Evidence to Credit, 783, 16. Evidence of Identity, 783. 17. Privileged Communications, 784. 18. Mode of Tailing, at Trial, 786. 19. Admissiiility of Evidence. a. Evidence of other Offences, 786. T), In other Cases, 790. 20. Documents, 792. 21. Previous Convictions, Records and Judg-t ments, 798. 1. CONrESSIONS AND ADMISSIONS. a. Confessions, when Admissible. Inducement — Hope of Benefit.] — On a trial for larceny, evidence was received of a confession made by the prisoner to the prosecutor in the presence of a police inspector, immediately after the prosecutor had said to the prisoner, "The inspector tells me you are making house-breaking implements ; if that is so, you had better tell the truth, it may be better for you : " — Held, that the confession was not admissible in evidence. Reg. V. Fennell, 7 Q. B. D. 147 ; 50 L. J., M. 0. 126 ; 44 L. T. 687 ; 29 W. B. 742 ; 45 J, P. 666 ; 14 Cox, C. C. 607. Z. was indicted for feloniously having in his possession a lithographic stone, on which was engraved a portion of a Dutch coupon. In the presence of an agent of the Dutch consulate, and of the person who signed the coupons, and after Z. had been told that if he had had any- thing to do with lithographing it, it would be better for him to tell it, he made a statement : — Held, that it was admissible against him. Reg. V. Zeigert, 10 Cox, C. C. 555. Sed qusere. The prisoner, while in the custody of a police- man on a charge of arson, said to her mistress, " If you forgive me I will tell you the truth." The mistress answered, "Ann, did you do it?" The prisoner thereupon made a statement :— Held, that the statement thus made was inad- missible against the prisoner. Reg. v. Mansfield, 14 Cox, C. C. 639. If a prisoner is told. " You had better split, and not suffer for all of them ; " this is such an inducement to confess as will exclude what the prisoner said in consequence of it. Rex v. Thomas, 6 C. & P. 353. So, where the witness said to the prisoner. It would have been better if you had told at first." Rex V. WalUey, 6 C. & P. 175. The prosecutor in the presence of a constable said to the prisoner, " It will be better for you to tell the truth, as it will save the shame of a search-warrant in your house." This statement was rejected. Reg. v. Collier, 3 Cox, C. C. 57. A girl was charged with administering poison Digitized by Microsoft® 733 CRIMINAL TuAW— Evidence. 734 with, intent to murder. Tiie surgeon said to her, " You are under suspicion of this, and you had better tell all you know." After this she made a statement to the surgeon : — Held, that that statement was hot admissible. Rex v. Kingston, 4 C. & P. 387. No use Denying it.] — A constable said to a person charged with felony, " It is of no use for you to deny it, for there is the man and boy who will swear they saw you do it : " — Held, that this was such an inducement as would exclude evidence of what the prisoner said. Mess v. Mills, 6 C. & P. 140. If Handcuffs are Taken off.] — A prisoner charged with felony, being in custody, hand- cuffed, in the house of the prosecutor, after a conversation with the prosecutor and another person, in which he was told that they would do all they could for him, said, ;• If the handcuffs are taken off, I will tell you where I put the property:" — Semble, that this statement was receivable, and could not be objected to, either as a confession made under a promise, or a state- ment obtained by duress. Hex v. Green, 6 C. & P. 655. Promise not to Sepeat Statement.] — A witness stated, that a prisoner charged with felony asked him if he had better confess ; and the witness replied, that he had better not con- fess, but that the prisoner might say what he had to say to him, for it should go no further. The prisoner made a statement : — Held, that it was receivable on the trial. Scm v. Thomas, 7 C. & P. 345. A. was in custody on a charge of murder. B., a fellow prisoner, said to him, " I wish you would tell me how you murdered the boy — pray Bplit." A. replied, " Will you be upon your oath not to mention what I tell you ? " B. went upon his oath that he would not tell. A. then made a statement : — Held, that this was not siich an in- ducement to confess as would render the state- ment inadmissible. Bex v. Sliaw, 6 C. & P. 372. Beceiving Something to Drink.] — Where a prisoner said to the officer in whose custody he was, " If you will give me a glass of gin, I will tell you all about it : " — Held, that a confession made in consequence of his having received some gin was inadmissible. Mex v. Sexton, 3 Euss. C. & M. 368. Seeing Wife.]— A. and his wife were separately in custody on a charge of receiving stolen property. A person who was in the room with A. said, " I hope you will tell, because Mrs. G. (the prosecutrix) can ill afford to lose the money ;" and the constable then said, "If you will tell where the property is, you shall see your wife : " — Held, that a statement made by A. afterwards was admissible. Rex v. Lloi/d, 6 C. & P. 393. Under the Influence of a Beward or a Pardon.] — The mere knowledge by a prisoner of a handbill, by which a government reward and a promise of a pardon are offered in a case of murder, are not sufficient ground for rejecting a confession of such prisoner, unless it appears that the inducements there held out were those which led the prisoner to confess. Reg. v. Bos- well, Car. & M. 584. Where a prisoner desii'ed that any handbill that might appear concerning a murder, with which he stood charged, might be shewn to him, and a handbill was shewn to him by a constable, by which a reward and a free pardon were offered to any but the person who struck the blow, and the prisoner three days afterwards made a state- ment, this statement was held to be receivable in evidence. lb. But where it was afterwards proved by another constable that the prisoner, on the night before he made the statement, said to him, that he saw no reason why he should suffer for the crime of another, and that as the government had offered a free pardon to any one concei-ned who had not struck the blow, he would tell all he knew about the matter : — The judge held, that the statement that had already been given in' evi- dence was not properly receivable, and struck it out of his notes. lb. Several prisouera being in custody on a charge of murder, A., who was one of them, said to the chaplain of the prison, that he wished to see a magistrate, and asked if any proclamation had been made, and any offer of pardon. The chap- lain said that there had ; but he hoped that A. would understand that he could offer him no in- ducement to make any statement, as it must be his own free and voluntary act. When A. saw the magistrate, he said that no person had held out any inducement to him to confess anything, and that what he was about to say was his own free and voluntary act and desire. A. then made a statement to the magistrate : — Held, that this statement was receivable against A. on his trial for the m,urder. Reg. v. Dingley, 1 C. & K. 637. A., a prisoner charged with murder, was visited by B., who was both a magistrate and a clergy- man ; B. told him, that if he was not the person who struck the fatal blow, and he would tell all he knew, he (B.) would use his en- deavours and influence to prevent anything from happening to him ; and that if he (A.) did not make a disclosure, some one else would probably do so. After this B. wrote to the secretary of state, who returned an answer that mercy could not be extended to A. ; which answer was com- municated by B. to A. After this A. sent for the coroner and wished to make a statement. The coroner told him that if he did so it would be used in evidence against him. The prisoner made a confession : — Held, that this confession was admissible. Rex v. Clowes, 4 C. & P. 221. Statements made by a prisoner with the know- ledge of a reward and a pardon to any but the actual perpetrator of the offence, and under cir- cumstances which led to the belief that such statements were made with the hope of receiving the reward, and being allowed to give evidence as a witness on the part of the crown, are inad- missible. Reg. V. Rlachburn, 6 Cox, C. C. 333. A printed copy of a reward offered for such private information and evidence as would lead to the detection and conviction of a murderer or the murderers, and a statement that the secretary of state would recommend the grant of a pardon to any accomplice, not having been the actual perpetrator of the murder, who should give snch evidence, was hung up in the magistrate's room in a county gaol. A prisoner, who could read, made a statement to the governor of the gaol in Digitized by Microsoft® 735 CEIMINAL LA'W— Evidence. ^Z,i^^' ^""^^^^P^^ that statement inquired whether he could give evidence, but did not say that he made the statement in that expectation, or m the hope of getting the reward, and before making the statement, he was told it would be used against him :-Held, that such statement was inadmissible. 2 b. But statements made, and anonymous letters written by a prisoner before his apprehension, are not madmissible merely on the ground of the prisoner's knowledge of the offer of the reward and pardon, or by reason of his having been em- ployed by the police authorities and paid money for his support, under the belief that he was an important witness for the crown. li. -^ — Benefit expected must be Temporal.] A prisoner charged with murder, being a few days short of fourteen, was told by a man who was present when he was taken up, but not by a con- stable, " Now kneel you down, I am going to ask you a very serious question, and I hope you win tell me the truth, in the presence of the Almighty ; " the prisoner, in consequence, made certain statements : — Held, strictly admissible. Bex V. Wild, 1 M. C. C. 452. A constable who apprehended a prisoner, asked him what he had done with the tap he had stolen from the prosecutor's premises ; and said, " You had better not add a lie to the crime of theft : " — Held, that a confession made to the constable was not receivable. Hex v. Slieppard, 7 C. & P. 579. The mother of a little boy, in custody on a charge of attempting to obstruct a railway train, said to him and another little boy in custody also on the same charge, in the presence of the mother of the latter and of the policeman, " You had better, as good boys, tell the truth," where- upon both boys confessed : — Held, that the con- fession was clearly admissible. Reg. v. Reeve, 1 L. R., C. C. 362 ; 41 L. J., M. C. 92 ; 26 L. T. 403 ; 20 W. E. 631 ; 12 Cox, C. C. 179. A daughter of the prosecutor (the prisoner's master), but who did not live with her father, and was not the prisoner's mistress, whilst she had temporary charge of the prisoner, who had been previously taken into custody, said to her, '.' I am very sorry for you, you ought to have known better. Tell me the truth, whether you did or no. Do not run your soul into more sin, but tell the truth ; " when the prisoner made a full confession : — Held, that there was no threat or inducement held out to the prisoner. Reg. V. Sleeman, 6 Cox, C. C. 245 ; Dears. C. C. 249 ; 2 C. L. E. 129 ; 23 L. J., M. C. 19 ; 17 Jur. 1082. The prosecutor called the prisoner to his room and said, " Jarvis, I think it is right I should tell you that, besides being in the presence of my brother and myself, you are in the presence of two officers of the police, and I should advise you that, to any question that may be put to you, you will answer truthfully, so that if you have committed a fault you may not add to it by stating what is untrue." A letter was then pro- duced, which Jarvis said he had not written, and the prosecutor then added, " Take care, Jarvis ; we know more than you think we know : " — Held, that the answer of the prisoner in the nature of a confession was admissible. Reg. v. Jarvis, 1 L. E., C. C. 96 ; 37 L. J., M. C. 1 ; 17 L. T. 178 ; 16 W. B. Ill ; 10 Cox, C. C. 574. A prisoner was before a magistrate on a charge of felony, and, after the examination of the wit- 736 Digitized by Microsoft® nesses against him, the magistrate said to him, " Be sure you say nothing but the truth, or it will be taken against you, and may be given in evi- dence against you at your trial : "—Held, that this did not exclude the prisoner's statement fi'om being given in evidence. Reg. v. Holmes, 1 C. & K. 248. On a prisoner being brought before a magis- trate on a charge of forgery, the prosecutor said, in the hearing of the pi-isoner, that he considered the prisoner as a tool of G. ; and the magistrate then told the prisoner to be sure to tell the truth ; upon this the prisoner made a statement : — Held, that the statement was receivable. Rex v. Com-t, 7 C. & P. 486. A policeman asked the prisoner, a boy between eight and nine years old, various questions as to his going to school, knowing the Lord's Prayer, where he would go to if he told a lie, whether Gfod knew everything ; and then asked, whether he thought God knew who set fire to the hay- stack. The boy not answering, and beginning to cry, the policeman asked him if he could give any information- about the fire, and receiving no answer, he said he should apprehend him upon charge of setting fire to the hay-stack. The boy then made a statement : — Held, that it was not admissible. Reg. v. Bay, 2 Cox, C. 0. 209. To Chaplains.] — ^A prisoner committed on a charge of murder sent for the chaplain to pray with him, who told him that, as the minister of God, he ought to warn him not to add sin to sin by attempting to dissemble with God, and that it would be important for him to confess his sins before God, and to repair as far as he could any injury he had done. The chap- lain had two interviews with the prisoner, and considered he had made a great impression on him, but distinctly told him he did not wish him to confess. After this the prisoner made two confessions to the gaoler and the mayor, after having been warned of the consequences by both those persons : — ■ Held, that these confessions were good evidence, and rightly received. Rex V. Gilham, Car. C. L. 51 ; 1 M. C. C. 186. A chaplain to a workhouse had, in his spiritual capacity, frequent conversations there with the prisoner, who was charged with the murder of her child, but who was too ill to be removed from the workhouse. Semble, that these con- versations ought not to be adduced in evidence at the trial. Reg. v. Griffin, 6 Cox, C. C. 219. Threats — What are Sufficient.] — A policeman asked a prisoner, who was suspected of having made away with her illegitimate child, to tell him where it was. She refused to do so, upon which he said that if she did not tell she might get herself into trouble, and it would be the worse for her. Then she made a statement : — Held, that the statement was inadmissible. Reg. V. Coley, 10 Cox, C. C. 536.' The words, " I must know more about it," said by a police constable to a prisoner in the course of conversation between them respecting the subject-matter of the charge, immediately before apprehension, are not a sufficient induce- ment to exclude an admission. Reg. v. Reason, 12 Cox, C. C. 228. The prosecutrix lost her purse, containing \l. is., in a market, and asked the prisoner, who had been standing near her, whether he had seen the purse or seen any one pick it up. He replied 737 CEIMINAL 1.AW— Evidence. 738 that he had not. She, however, suspecting that he had robbed her, gave information to the police. A policeman, a short time afterwards, went in search of the prisoner, and having found him, told him that the prosecutrix had lost her purse, and that it was supposed that he had picked it up, and added, " Now is the time for you to take it back to her." He denied having it, and went with the policeman. As they went along he commenced making a statement, but the policeman told him to say nothing until they saw the prosecutrix. Having met the pro- secutrix after they had walked about 600 yards, some conversation took place and the prisoner was searched, and on a half-sovereign being found, the prisoner said to the prosecutrix that he would make it all up to her. Twenty minutes had elapsed between the time of the policeman's remark, " Now is the time to take it back to her," and the prisoner's, " that he would make it all up to her : " — Held, that there was no inducement held out to the prisoner, and that his statement or confession (that he would make it all up to her) was admissible against him. Meg. V. Jones, 12 Cox C C. 241 ; 27 L. T. 765. A person being in Custody, and having been charged with setting fire to some bobbins of cotton in a mill, was shewn a piece of paper (partially burnt) with writing on it, which had been found among the burnt property. Without receiving any caution whatever, he was then asked by the policeman whose writing it was, and what he had done with the remainder of it : — Held, that what he said in answer to the ques- tions was receivable, as the questions did not amount to a threat. Reg. v. Megan, 17 L. T. 325. The captain of a vessel said to one of his sailors, suspected of having stolen a watch, " That unfortunate watch has been found, and if you do not tell me who your partner was, I vrill commit you to prison as soon as we get to Newcastle ; you are a damned villain, and the gallows is painted in your face : " — Held, that a confession made by the sailor after this threat was not receivable on his trial for the felony. Rex V. Parratt, 4 C. & P. 470. A confession, induced by saying, " Unless you give me a more satisfactoiy account, I will take you before a magistrate," or by saying, " Tell me where the things are, and I will be favourable to you," cannot be given in evidence. Mex v. Thompson, 1 Leach, C. C. 291 ; S. P., Rex v. Cass, 1 Leach, C. 0. 293, n. Where the prosecutor asked the prisoner, on iinding him, for the money which the prisoner had taken out of the prosecutor's pack, but before the money was produced said " he only wanted his money, and if the prisoner gave him that he might go to the devil if he pleased ; " upon which the prisoner took 11*. 6\d. out of his pocket, and said " it was all he had left of it : " — Held, that the confession could not be received. Rex V. Jones, E. & E. C. C. 142 ; S. P., Rex v. Clarhe, Car. C. L. 59. After an investigation before a magistrate on a charge of concealment of birth, and after the accused had been cautioned in the usual manner, and had stated that she had nothing to say, but before her actual committal, the presiding magis- trate asked her what she had done with the body -" the child :— Held, that her statement in of answer was not admissible. 6 Cox, C. C. 388. A prosecutor said to the prisoner, "I should be obliged to you if you would tell us what you know about it ; if you will not, we, of course, can do nothing : " — Held, that this was such an in- ducement to confess, as would exclude what the prisoner said. Rex v. Partridge, 7 C. & P. 551. Admissions by a prisoner, elicited by question* of a police ofBcer, with an admonition to tell all she knew, are inadmissible, Beg, v, Cheverton, 2 F. & F. 833. Obtained by Persons in Authority.] — It is the opinion of the judges that evidence of any con- fession is receivable, unless there has been some inducement held out by some person in authority. Reg. V. Taylor, 8 C. & P. 733.. If a person, not in office or in authority, holds out to an accused party an inducement to con- fess, this will not exclude a confession made to that person, lb. Who are.] — ^Where, on the apprehension of a prisoner for larceny, persons having nothing to do with the apprehension, prosecution or ex- amination of the prisoner, advised him to tell the truth and 'consider his family: — Held, that such admonition w^as no ground for excluding a confession made an hour afterwards to the con- stable in prison. Rex v. Row, E, & E. C. C. 153. The confession of a girl fifteen years old, occa- sioned by many applications by the prosecutor's relations and neighbours, amounting to threats and promises, is not receivable. Rex v. Simp- son, 1 M. C. C. 410. So a confession obtained from a servant through hopes and threats held out by the wife of the master and prosecutor, is inadmissible. Rex V. Upchurch, 1 M. C. C. 465. The wife of a person in whose house an ofEence is committed, such person not being prosecutor, nor engaged in the apprehension, prosecution or examination of the otfender, and the ofEence not being in any way connected with the manage- ment of the house, is not a person in authority within the rule which excludes confessions. Reg. V. Moore, 2 Den. C. C. 522 ; 3 C. & K. 153 ; 5 Cox, C. C. 555 ; 21 L. J., M. C. 199 ; 16 Jur. 621. Upon a trial for child murder the prisoner's confession to a surgeon, who was attending her, was ofiered. Before the surgeon came in, her mistress had told her that she had better speak the truth ; and she had said, in answer, that she would tell it to the surgeon ; but the husband of the mistress was not the prosecutor : — Held, that as the ofEence was not an ofEence against the mistress, she was not a person in such authority that the inducement which she had held out would exclude the confession, which was conse- quently admissible. li. A daughter of the prosecutor (the prisoner's master), but who did not live with her father, and was not the prisoner's mistress, whilst she had temporary charge of the prisoner, who had been previously taken into custody, said to her, " I am sorry for you ; you ought to have known better. Tell me the truth, whether you did it or no. Do not run your soul into mors sin, but tell the truth ; " when the prisoner made a full confession : — Held, that the confession was not Reg. V. Berriman, made to a person in authority, and was therefore admissible. Reg. v, Sleeman, Dears, C, C. 249 ; Digitized by Microsoft® 739 CEIMINAL luAW— Evidence. 740 2 C. L. E. 129 ; 23 L. J., M. C. 6 Cox, C. C. 245 ; 19 ; 17 Jur. 1082, On an indictment foi stealing the goods of two persons in partnership, a confession made after an inducement to confess has been held out in their absence by the wife of one of them, who assisted in the management of their business, is inad- missible. Beg. V. Warringham, 2 Den C C 447, n.; 15 Jur. 318. A man and a woman being apprehended on a charge of murder, another woman, who had the female prisoner in custody, told her that she "had better tell the truth, or it would lie upon her, and the man would go free :"— Held, that a declara- tion of the female prisoner made to this woman afterwards was not receivable. Hex v. Enoch, 5 C. & P. 539. A female, in custody on a charge of murder, desiring to go to the water-closet, was sent there by the police with a woman, who was impliedly authorized to prevent her escape. When alone together in the closet, the woman, an acquaint- ance of the prisoner, alluding to the crime said, " How came you to do it?" whereupon she made a statement in the nature of a confession : — Held, that the statement was not induced by any hope or fear caused by a person in authority, and was, therefore, admissible against her. Reg. V. Verjion, 12 Cox, C. C. 153. A woman in custody, on a charge of murder, was, on arriving at the gaol, placed in a room alone with E., in order to be searched. E. was employed as searcher of female prisoners ; but, except in that capacity, had no other duties or authority in the gaol. Whilst the usual search was being made, the prisoner said, " I shall be hung, I shall be sure to be hung ; " and shortly afterwards, " If I tell the truth, shall I be hung ? " E., in order to soothe the prisoner, replied, "No, nonsense, you wUl not be hung ; who told you so?" — Held, that a statement of the prisoner made to E. immediately afterwards was not receivable. B^g. v. Windsor, 4 F. & F. 360. By Persons without Authority.] — There is a difference of opinion among the judges, whether a confession made to a person who has no authority, after an inducement held out by that person, is receivable. Bex v. Spencer, 7 C. & i". 776. The confession of a prisoner is evidence, aIthoi:^h previously to it an inducement to con- fess had been held out by another person, if that pereon had no authority to do so. Bex v. Gibbons, I C. & P. 97. So a confession by a prisoner to a constable, who had held out no inducement, is evidence, although an inducement had been previously held out by a person in no oflSce or authority. Bex V. Tyler, 1 C. & P. 129. Any person's telling a prisoner that it will be better for him to confess, will exclude a confes- sion made to that person, although that person was not in any authority, as prosecutor, constable, or the like. Bex v. Dunn, 4 C. & P. 543; S. P., Bex V. Slaughter, 4 0. & P. 544. Person in Authority not dissenting from In- ducement held out by Another.] — A married woman was apprehended on a charge of felony, and her husband, in the presence of the constable, held out an, inducement to her to confess. She then made a statement :-^Held, that it was not receivable, as an inducement held out in the Digitized by Microsoft® presence of the constable was the same in effect as if it had been held out by him. Beg. v. Laugher, 2 C. & K. 225. The prosecutor and a policeman went into a room in the house of one of the prisoners, in which were assembled the two prisoners and W. The policeman then charged one of the prisoners and W. with stealing the prosecutor's hops, and the other prisoner with feloniously receiving them. W. then said, "Well, John, you had better tell Mr. Walker " (the prosecutor) " the truth." Neither the prosecutor nor the police- man dissented from or remarked upon this advice, but the prisoner John thereupon made a state- ment amounting to a confession ; and subse- quently, whilst being conveyed to prison, of his own accord, made a further statement : — Held, that the statements were admissible. Beg. v. Parker, L. & C. 42 ; 8 Cox, C. C. 465 ; 30 U J., M. C. 144 ; 7 Jur., N. S. 586 ; 4 L. T. 451 ; 9 W. K. 699. Where the house of Mr. L. had been on fire, and the prisoner, a female servant there, was sent for into the parlour, where Mr. W., a person not in authority, in the presence of Mrs. L., held out an inducement to the prisoner to confess respect- ing the fire, Mrs. L. expressing no dissent : — Held, that a confession made after this was not receiv- able, as the inducement must be taken as if it had been held out by Mrs. L., who was a person in authority over the prisoner. Beg. v. Taylor, 8 C. & P. 733. Upon the trial of an indictment for an un- natural crime with a mare, one of the witnesses, in the presence of T., the owner of the mare, threatened to give the prisoner in charge to the police if he did not tell what business he had in T.'s stable, where the mare was. At that moment the charge had not been made known to the prisoner, but was immediately afterwards, and then he confessed -.—Held, that this confession was inadmissible, having been made imder the influence of a threat held out to him in the presence of one who, being the owner of the mare, was likely to prosecute for the offence. Bea. V. Zuchhurst, 6 Cox, C. C. 243 ; Dears. C C. 245 ; 2 C. L. E. 129 ; 23 L. J., M. C. 19 ; 17 Jur. 1082. A statement made by one of two prisoners to the other, after an inducement suggested by that other in the presence of the constable in whose custody they are, and uncontradicted by the con- stable, is inadmissible. Beg. v. Miller, 3 Cox, C. C. 507. Confession relating to another Offence.]— A servant was charged with attempting to set fire to her master's house. It was proved that the furniture in two of the bed-rooms was on fire, and a spoon and other articles were found m the sucker of the pump. The master told the prisoner that if she did not tell the truth about the things found in the pump, he would send for the constable to take her, but he said nothing to her respecting the fire :— Held, that this was such an inducement to confess as would render inadmissible any statement that the prisoner made respecting the fire, as the whole was to be considered as one transaction. Beg. v. Mearn, Car. &M. 109. ^. ^„,. ,., A. was indicted for stealing a sbilhng which had been previously marked and put into a tUJ. A constable found the shilling in his possession, and asked him if he had any more money about 741 CKIMINAL LAW— Evidence. 742 him. The prisoner produced some half-crowns, and then made a statement : — Held, that this statement was not receivable, on the ground that it related to another and distinct felony. Meg. V. Butler; 2 C. & K. 221. Inducement to one Prisoner — Confession by Anotlier.]^An inducement or a threat offered by a master to one of two apprentices jointly accused of larceny will not, though offered in the presence of the other, preclude the reception in evidence of a confession immediately made by the other. Seg. v. Jacobs, i Cox, C. C. 5i. Confession obtained by Fraud.] — Where a prisoner in a gaol on a charge of felony asked the turnkey of the gaol to put a letter in the post for him, and after his promising to do so the prisoner gave him a letter addressed to his father, and the turnkey instead of putting it into the post, transmitted it to the prosecutor : — Held, that the letter was admissible against the prisoner, notwithstanding the manner in which it was obtained. Bex v. Derrington, 2 C. & P. 418. A statement, made by a prisoner when he is drunk, is receivable in evidence ; and semble, that if a constable gave him liquor to make him so, in the hope of his saying something, that will not render his statement inadmissible, but it will be matter of observation for the judge in his summing up. Rem v. Sinlsbury, 7 C. & P. 187. Previous Caution or Warning by Magistrates.] — The 11 & 12 Vict. c. 42, s. 18, which requires a caution to be given by the magistrate to the prisoner, applies only to the concluding proceed- ings of the examination ; and, therefore, a voluntary statement made by a prisoner in the course of an examination before a magistrate, and before all the witnesses have been examined, is admissible at the trial, although no caution has been given by the magistrate. Beg. v. Stripps, Dears. C. C. 648 ; 23 L. J., M.C. 109 ; 2 Jur., N. S. 452. On an examination on a charge of felony before a magistrate, the prisoner was asked if he wished to put any question to a witness against him. Instead of asking anything, he made a statement, which was written down on the depositions, but not signed by the prisoner, who had received no caution : — Held, that this statement was not evidence per se, but that any one who heard the prisoner make it might give evidence of it, refreshing his memory from what was thus written down, but in such a case a prisoner ought to be told that that was not the proper time for him to make a statement. Beg. V. Watson, 3 C. & K. 111. A statement made by a prisoner before a com- mitting magistrate, and signed by the prisoner and the magistrate, if taken in the fonn pre- scribed in the schedule to 11 & 12 Vict. c. 42, is admissible in evidence against him at his trial at common law. Beg. v. Sansomc, 1 Den. C. C. 645 ; 4 New Sess. Gas. 152 ; T. & M. 260 ; 3 C. & K. 332 ; 4 Cox, C. C. 203 ; 19 L. J., M. C. 143 ; 14 Jur. 466. It will be prudent for justices always to give the prisoner the second caution as well as the first. lb. After taking the examination of the witnesses on a charge of felony against the prisoner, the magistrate cautioned the prisoner in the language prescribed by 11 & 12 Vict. c. 42, s. 18, but did not, as the proviso to that section requires, tell the prisoner he had nothing to hope from any promise of favour, or to. fear from any threat. The prisoner then made a statement, which was taken down, but was not signed by him or the magistrate. The prisoner, after a remand, being brought again' before the magistrate, some questions were put to the witnesses by the prisoner's attorney, who then objected to the statement being treated as the prisoner's state- ment, as an Edition had been made to the evidence, and the j)risoner being then asked if he wished to mak^ any statement, declined doing so :— Held, that the prisoner's statement was admissible as evidence against him at his trial. Beg. V. Bond, 4 New Sess. Cas. 143 ; T. & M. 242 ; 1 Den. 0. C. 517 ; 3 C. & K. 337 ; 4 Cox, C. C. 231 ; 19 L. J., M. C. 138 ; 14 Jur. 399. A statement made by a prisoner before a magistrate, not signed either by the magistrate or the prisoner, is not excluded as evidence because the magistrate omits to inform him that he has nothing to hope or to fear from either promise or threat. lb. Semble, that before a statement made by a prisoner in the presence of, and duly signed by the committing magistrate, can be received in evidence against him, proof must be given that he was cautioned in the manner provided by 11 & 12 Vict. c. 42, s. 18, dehors any declaration to that effect contained in the caption of the state- ment itself. Beg. v. Higson, 2 C. & K. 769. When a prisoner is willing to make a state- ment, it is the duty of magistrates to receive it ; but magistrates, before they do so, ought entirely to get rid of any impression that may have before been on the prisoner's mind, that the statement may be used for his own benefit ; and the prisoner ought also to be told, that what he thinks fit to say will be taken down, and may be used against him on his trial. Beg. v. Arnold, 8 C. & P. 621. A statement of a prisoner is admissible, although he has previously been toldThat what- ever he said " would be used against him." Beg. V. Chambers, 4 Cox, C. C. 92. A prisoner ought to be told by the magistrate that if he makes any statement it may be used as evidence against him, and that he must not expect any favour if he confesses ; but the magistrate ought not to dissuade him from con- fessing. Bex V. Green, 5 C. & P. 312. Where a person, who made a confession to a constable in consequence of a promise held out, was taken before a magistrate, who, knowing what had taken place, cautioned the prisoner against making any confession before him, but the prisoner, notwithstanding, did make a con- fession to the magistrate : — Held, that this second confession was receivable on the trial of the prisoner, though it did not appear that the magistrate told the prisoner that his first con- fession would have no effect, and he therefore might have acted under an impression that, having once acknowledged his guilt, it was too late to retract. Bex v. Howes, 6 C. & P. 404. When Inducement continues and rendei^s subsequent Confession Inadmissible.] — A second confession made under the same influence as the first is not receivable. McynelVs case, 2 Lewin, Digitized by Microsoft® 743 CKIMINAL -Lk^— Evidence. 7U C. C, 122; S. P., Sherrington's case, lb. The committing magistrate told a prisoner that he would do all that he could for him if he would make a disclosure ; after this, the prisoner made a statement to the turnkey of the prison, who held out no inducement to the prisoner to confess : — Held, that what the prisoner said to the turnkey could not be received, more especially as the turnkey had not given the prisoner any caution. Rex v. Cooper, 5 C. & P. 535. A girl, accused of poisoning, was told by her mistress that if she did not tell all about it that night, a constable would be sent for in the morn- ing to take her before a magistrate ; she then made a statement, which was held to be not admissible. Next day a constable was sent for, and as he was taking her to the magistrate, she said something to him, he having held out no inducement to her to do so : — Held, that this was receivable, as the former inducement ceased on her being put into the hands of the constable. Meie V. Ricliards, 5 C. & P. 318.' A female servant being suspected of stealing money, her mistress, on a Monday, told her that she would forgive her if she told the truth. On the Tuesday she was taken before a magistrate, and was discharged, no one appearing against her. On the Wednesday the superintendent of police went with her mistress to the Bridewell, and told her in the presence of her mistress that she " was not bound to say anything unless she liked, and that if she had anything to say her mistress would hear her ; " but the superinten- dent, not knowing that her mistress had promised to forgive her, did not tell her that if she made a statement it might be given in evidence against her. The prisoner made a statement : — Held, that this statement was not receivable, as the promise of the mistress must be considered as still operating on the prisoner's mind at the time of the statement, but that, if the mistress had not been then present, it might have been otherwise. Reg. v. Hevyitt, Oar. & M. 534. Admissions by a prisoner, elicited by questions of a police officer, with an admonition to teU all she knew, are inadmissible. But a subsequent statement by the prisoner to another officer is not necessarily so far under the same influence as to exclude it. Beg. v. Cheverton, 2 F. & F. 833. A servant girl was questioned by the mother of a child who had been found dead in a ditch ; and she was asked whether she had anything to do with its disappearance ; upon which she cried, and said, " If you won't send for the police I will tell the truth," whereupon her mistress replied, " I will not hurt you if you tell the truth ;^ you will be much happier if you tell the truth ;" and she promised not to send for the police ; where- upon the prisoner made a confession, which upon the trial was rejected as being made under an inducement. It further appeared that shortly- after this confession, the mistress sent for a neigh- bour and informed him of the confession, where- upon he had an interview alone with the prisoner, and asked her questions upon the subject, but he held out no inducement, and she then made a similar confession :— Held, that the second con- fession was so connected under the circumstances with the first, that it was inadmissible. Reg. v. Rue, 13 Cox. C. 0. 209 ; 34 X. T. 400. The prosecutor, in the presence of the constable, said to the prisoner, " It will be better for you to tell the truth, as it will save the shame of a Digitized by Microsoft® search-warrant in your house." The statement was rejected. The constable then took the prisoner into a loft, and, in the absence of the prosecutor, the prisoner made a statement. The evidence was rejected. Half an hour after, the constable took the prisoner to the station-house, and on the way cautioned him not to say any- thing, after which he made a statement : — Held, to be inadmissible, as the inducement was still operating. Reg. v. Collier, 3 Cox, C. C. 57. b. Other Points relating: to Confessions. Confession Inadmissible — Facts resulting from, may be given in Evidence.] — Confessions, ob- tained in consequence of promises or threats, cannot be given in evidence ; but evidence of facts resulting from such inadmissible confes- sions may be received. Rex v. Wanoielishall, 1 Leach, C. .0. 263 ; 2 East, P. C. 658 ; S. P., Rex v. Mosey, 1 Leach, C. C. 265, n. "Where a prisoner was charged with stealing a guinea and two promissory notes, and the prose- cutor told him that it would be better for him to confess : — Held, that after this admonition, the prosecutor might prove that the prisoner brought him a guinea and a bl. note, which he gave up to the prosecutor as the guinea and one of the notes that had been stolen from him. Rex v. Griffin, K. & E. C. C. 152. When a prisoner's confession had been rejected, the judge would not allow a witness to be asked whether in consequence of the confession, he did a particular thing. Reg. v. Berriman, 6 Cox, C. 0. 388. Where anything is found in consequence of a statement made by a prisoner, under circum- stances which preclude its being given generally in evidence, such part of it as relates to the thing found in consequence is receivable, and ought to be proved. Reg. v. Gould, 9 C. & P. 364. If a confession is improperly obtained, it is a ground for excluding evidence of the confession, and of any act done by the prisoner in conse- quence towards discovering the property, unless the property is actually discovered thereby. Rex V. Jenkins, E. & K. C. 0. 492. Confession, when Sufficient to Support Con- viction.] — ^A prisoner's confession is sufficient ground for a conviction, although there is no other proof of his having committed the offence, or of the offence having been committed, if that confession was in consequence of a charge against the prisoner. Rex v. MUridge, R. & E. C. C. *40. The confession of a prisoner before a magis- trate is a sufficient ground to warrant a convic- tion, although there is no positive proof aliunde that the offence was committed. Rex v. White, E & E. C. C. 608 ; S. P., Rex v. Tippet, E. Sc E. C. C. 509. . ^_ , , Where a knowledge of any fact is obtained by means of a confession which cannot be received, the party should be acquitted ; unless the fact would be sufficient to warrant a conviction with- out any confession leading to it. Bex v. Harvey, 2 Bast, P. C. 658. A voluntary confession which enters into minute details of a crime, and states that the prisoner was one of the party concerned m its commission, is evidence to go to a jury when the corpus delicti is proved by evidence aliunde. 745 CKIMINAL T-.AW— Evidence. 746 although the witness proving such corpus delicti swears that the prisoner was not of the party engaged in the commission of the crime, Segi. v. ~ " Ij, 4 Cox, C. 0. 270. In Cases of Bigamy.] — See ante, BiGAMT. Proof of CircTunstances before Eeception.] — A person charged with murder made a confession before the coroner. It appeared that, before he made this confession, B., who was both a clergy- man and a magistrate, had had an interview with him : — Held, that the prosecutors were not bound to call B. before they put in the confession, but that it would be fair for them to do so ; and that if the prosecutors did not call B., the prisoner might call him. before the confession was read, to prove that some inducement was held out. Hex V. Clewes, i C. &. P. 221. A prisoner was in the custody of A., a con- stable ; B., another constable, coming into the room, A. left it, and the prisoner immediately made a confession to B, : — Held, that, if the pri- soner was in custody as an accused party, A. must be called to prove that he had held out no induce- ment to the prisoner to confess, before the con- fession made to B. is receivable ; but if it appears that the prisoner was not then in custody on any charge, but merely detained as an unwilling wit- ness, it will not be necessary to call A. Hex v. Swatltms, 4 C. & P. 548. In order to render a confession by a prisoner admissible, the prosecution must shew affirma- tively, to the satisfaction of the judge, that it has not been made under the influence of an improper inducement ; if this appears doubtful on the evi- dence the confession ought to be rejected. Meg. v. Wa/rringimm, 2 Den. C. C. 447, n. ; 15 Jur. 318. At the trial of a servant for attempting to poison her mistress, a medical man having denied that he had held out any inducement to the pri- soner to confess, gave evidence of a confession, without which the prisoner could not have been convicted. Evidence was then given that before she made her confession he had said to her, in the presence of her mistress, " It will be better for you to tell the truth." The medical man was re- called, but did not admit this, and the judge left the evidence, including the confession, to the jury, but reported, that if the evidence had been given in the first instance he should have excluded the confession : — ^Held, that the confession ought to have been struck out, and that the conviction was wrong. Meg. v. Garner, 3 New Sess. Gas. 329 ; 1 Den. 0. C. 329 ; T. & M. 7 ; 2 C. & K. 920 ; 3 Cox, C. C. 175 ; 18 L. J.. M. C. 1 ; 12 Jur. 944. S. P., Meq. V. Boswell, Car. & M. 584. To render a confession admissible, it is not so much material to prove to whom or when it is made, as it is to ascertain the mind of the person making it, and see whether or not it is probable that it was made voluntarily. Meg. v. Mue, 13 Cox, C. C. 209 ; 34 L. T. 400. c. Admissions other than Confessions. In Private Conversations.] — What a prisoner is overheard to say to his wife, or even what he is overheard to say to himself, is receivable against him on a charge of felony ; it is, how- ever, a species of evidence to be acted on with caution, as it is very liable to be unintentionally misrepresented by the witnesses. Mesc v. Simons, 6 C. & P. 540. A conversation between the prisoner and his mother, in which she made a statement to his prejudice, which he denied, is not admissible against him. Meg. v. Welsh, 3 F. & F. 275. But a conversation between two persons in relation to the charge under investigation, made in the presence of the prosecutrix, but in the absence of the prisoner, was admitted. Meg. v. Arnall, 8 Cox, C. C. 439. ' If a witness gives evidence of a conversation with a prisoner, in which that prisoner says something implicating another prisoner, the wit- ness, in giving his evidence, must not omit the name of such other prisoner, and say " another person," but must give the conversation exactly as it occurred, and the judge will tell the jury that is not evidence against such other prisoner. Msse V. Hearne, 4 C. & P. 215 ; S. P., Mex v. Walltely, 6 C. & P. 175. By Wife, in Presence and Hearing of Prisoner.] — What the wife of a person charged with felony says in his presence and hearing is admissible on the trial. Mex v. Bartlcti, 7 C. & P. 671. Before Suspicion attaches to Prisoner.] — ^A statement made by a prisoner before suspicion attaches to him, and before search made, in order to account for his possession of property, which he is afterwards charged with having stolen, is admissible as evidence for him. Meg. v. Abra- ham., 3 Cox, C. C. 434 ; 2 C. & K. 550. Statement not Denied by Prisoner,] — The coiirt will not exclude a statement made in the prisoner's presence by another party to a third person, merely because some inducement has been held out to that party to make it ; but very little weight ought to be attached to the fact of no answer being given to such statement by the prisoner, as he would not know whether it would be better for him to be silent or not. Meg. v. Jaiikowski, 10 Cox, C. C. 365. Sufficiency.] — A prisoner, indicted for stealing two heifers, said, " I drove away two heifers from 'the World's End Dolver'" (i. e.. Fen). The prosecutor's farm was called by that name, but he could not swear that there was not any other of the same name in the neighbourhood : — Held, insufficient to warrant a conviction. Mex V. Tuffs, 5 C. & P. 167. Statement Made after being Sworn.] — A pri- soner before a magistrate was sworn by mistake, but the deposition was afterwards destroyed and the prisoner cautioned. After this he made a statement ; — Held, admissible. Mex v. IfeJJ, 4 C. & P. 564. Depositions of Prisoner, when Evidence against Himself.] — See post. Depositions. Admissibility for and against Prisoner.] — If the declaration of the prisoner, in which she asserts her innocence, is given in evidence on the part of the prosecution, and there is evidence of other statements confessing guilt, the judge will leave the whole of the conflicting statements to the jury for their consideration ; but if there is in the whole case no evidence but what is com- patible with the assertion of innocence so given in- evidence for the prosecution, the judge will direct an acquittal. Mex v. Jones, 2 C. & P. 629. If a prosecutor proves in evidence a declara- Digitized by Microsoft® 747 tion made by a prisoner, it becomes evidence for the prisoner as well as against him, but like all other evidence, the jury may give credit to one 3 a & P 6^03 '^°^ *° '"'°'''^''" ^""^ ""• ^'Sgi^' If a prosecutor gives in evidence a declaration made by a prisoner exculpatory of himself, the ]ury is not bound to take this to be true merely because the prosecutor gives it in evidence ; but they ought to consider how far it is consistent with the rest of the evidence, and whether thev & P 397* *° ^^ ^^^'^^ *"'®" ^"^^ ^" '^*'?Pf<"'. * C- In an indictment for highway robbery, accom- panied by violence, witnesses were called for the prisoner, to shew that he had received certain marks of blood on his coat before the robbery • — Held, that it was competent to the prosecution to put m the prisoner's statement before the magistrate, wherein he gave a different account o± the same matter. Meg. v, WMte, 2 Cox, C. An incidental observation made by a prisoner m the course of his examination before a magis- trate, which is not taken down as part of the prisoner's statement, is not admissible in evidence against him at the trial if it relates to any matter which formed part of the judicial inquiry then being conducted before the magis- trate. Meff. V. Carpenter, 2 Cox, C. C. 228. Answers to Questions on Examination before Magistraftes.]— An examination of a prisoner charged with a felony taken without threat or promise, by questions put by the magistrate, is notwithstanding admissible. Hex v. Mlis, E. & M. 432 ; S. P., Rex v. Bartlett, 7 C. & P. 832. On Interrogations by the Police.]— The prac- tice of questioning prisoners by policemen, and thus extracting confessions from them, though it does not render the evidence so obtained in- admissible, is one which is strongly reprehensible, and which ought not to be permitted. Req. v. Wick, 3 F. & P. 822. Ananswer by a prisoner after his arrest, to a question asked by a policeman, is inadmissible. Beg. V. BodUn, 9 Cox, C. C. 403. A policeman ought not, in general, to question prisoners who are in his custody ; but if he does, the interrogation ought not to be confined to questions calculated to compromise the party. Meg. V. Stokes, 17 Jur. 192. J., suspected of having committed felony, was followed and stopped by a constable in plain clothes. The constable having told J. what he was, and that she (J.) was charged with felony, proceeded to put several questions to her relative to a parcel in her hand, which contained the goods supposed to have been stolen. At the time he asked the questions the constable had not told J. that she was under arrest, but he would not let her go. He did not expressly hold out any threat or inducement to J., nor did he, before she answered him, give her any caution. J. having answered the questions, the constable then told her she was not bound to say anything that would criminate herself, and said he should bring her to the police office r — Held, that the conversation between J. and the constable was receivable in evidence. Meg. v, Johnston, 15 Ir. C. L. R. 60. Where there is no clear evidence of an offence having been committed, a police officer is not CEIMINAL LAW-Evidence. 748 justified, in consequence of mere rumours in a neighbourhood, in putting searching questions to a person for the purpose of eliciting the proof of a crime, as well as of that person's connexion with it. Meg. v. Berriman, 6 Cox, C. C. 388. A confession obtained without threat or promise from a boy fourteen years old, by questions put by a police officer in whose custody the boy was on a charge of felony, and when he had had no food for nearly a whole day, is rightly received Mea: v. Tlwrnton, 1 M. C. C. 27, Previous Warning by Police.]— Though there may be cases in which it will be proper, yet, as a general rule, it is better that a policeman should not question a prisoner in his custody, without cautioning him that his answers will be evidence against him. Meg. v. Eerr, 8 C. & P. 177. Where a police constable, who apprehended the prisoner, having told him the nature of the charge, said "he need not say anything to criminate himself ; what he did say would be taken down and used as evidence against him ; " and the prisoner thereupon made a confession : Held, receivable. Meg. v. Baldry, 2 Den C 430 ; 21 L. J., M. C. 130 ; 16 Jur. 599 ; 19 L.'t.J A constable ought not to caution a prisoner not to say anything. A constable is not to lead a prisoner to say anything ; but if a prisoner chooses to say sornething, it is the duty of the constable to hear what it is he has to say Mea V. Priest, 2 Cox, C. C. 378. Admissibility of, against Fellow Prisoner.] Where A. and B. were charged with the joint commission of a felony, and A., on his examina- tion before a magistrate, stated, in the hearing of B., that he and B. jointly committed such felony, which B. did not deny :— Held, that these circumstances were not admissible as evi- dence against B. Meai v. Applehy, 3 Stark. 33 : S. P., Ilex V. JSearne, 4 C. & P. 215. If two are taken before a magistrate on a charge of felony, what the fii-st says in his state- ment before the magistrate cannot be given in evidence against the second, because when before the magistrate the second is only called upon to answer the statement in the depositions on oath, and not what any other prisoner may have said on his examination. Meg. v. Swinnerton, Car. & M. 593. d. Proof of. Made before Magistrates — Confession Written and Signed.] — On the trial of a prisoner who has made before a magistrate a voluntary con- fession of his guilt, previously to the conclusion of the evidence against him, which confession is taken down in writing, and signed by the pri- soner, and attested by the magistrate's clerk, the proper course is for the clerk to give evidence of the prisoner's statements, refreshing his memory by the written paper. i?(!.c v. Bell, 5 C. & P. 162. A prisoner charged with felony made a state- ment before the committing magistrate, which was taken down and signed by the prisoner, but there was nothing on the face of the paper to shew that at the time the prisoner made the statement he was under examination on a charge of felony : — Held, that this examination could not be used as such, but that the clerk to the magistrate might state what the prisoner said. Digitized by Microsoft® 749 CEIMINAL LAW— Evidence. using the paper to refresh his memory. Rea; v. Tarrant, 6 C. & P. 182. When unsigned by Prisoner.] — A magis- trate may give evidence of what a prisoner said at examinations before him, although much of what he said was in answer to questions put by the magistrate, no threat or promise being used, and although the prisoner had refused to sign the magistrate's notes of thq examination, on the gi'ound that they were an incorrect account of the transaction. Mea; v. Jones, Car. C. L. 13. And the magistrate may refresh his memory from the notes. li. A voluntary confession of felony made by a prisoner on his examination before a magistrate, and reduced by the magistrate into writing, may be given in evidence on the trial, though the magistrate has neglected, and the prisoner has refused, to sign it. Rex v. Zamhe, 2 Leach, C. C. 552. A prisoner charged with felony made a state- ment before the committing magistrate, which was taken down in writing, but not signed by the prisoner : — Held, that the' magistrate's clerk might give evidence of what the prisoner said, using that which was taken down to refresh his memory. Rem v. Presaly, 6 C. & P. 183 ; Cox, C. C. 156 ; 31 L. J., M. C. 147 ; 8 Jur., N. S. 522 ; 6 L. T. 334 ; S. P., Beg. v. Croueheo; 3 F. & F. 285. Therefore, when a deposition was admitted upon evidence that the prosecutrix was daily expecting her confinement and otherwise poorly, and therefore too ill to travel, the court declined to interfere with the exercise of the discretion of the judge. Ih. Where a witness for the prosecution is so ill as not to be able to travel, the judge may, at his. discretion, permit the deposition to be read, or postpone the trial. Beg. v. Tait, 2 F. & F. 553. Pregnancy.] — Pregnancy alone may be a gi-ound for the admission of a deposition. Beg. V. GooOfellow, 14 Cox, C. C. 326. Pregnancy may create an illness within 11 & 12 Vict. c. 42, s. 17, so as to give the judge dis- cretionary power to admit in evidence upon a criminal trial the deposition of a witness duly taken, who owing to pregnancy is proved to be unable to travel. Beg. v. WelliTigs, 3 Q. B. D. 426 : 47 L. J., M. C. 100 ; 38 L. T. 652 ; 26 W. R. 592. Proof of Pregnancy.] — It was proposed to read, on the trial at the assizes, the deposition of a witness called before the magistrates on a charge of murder, absent by reason of preg- nancy. Evidence given by a medical man on February 5th, that he had last seen the witness on the 29th day of January, and that she then was daily expecting her confinement, but which had not yet taken place, was held sufficient to entitle the deposition to be read at the trial on the 5th of February. Beg. v. Heeson, 14 Cox, C, C. 40. Through Old Age.] — ^At the trial of an indictment it was proposed to read the deposi- tion of a witness on the ground that the witness was so ill as not to be able to travel. The evi- ,dence upon that point was as follows : — The medical attendant of the witness was called and said : " I know M. L. She is very nervous, and sgventy-four years of age. I think she would faint at the idea of coming into court, but I think that she could go to London to see a, doctor without difficulty or danger. I think the idea of seeing so many faces would be dangerous to her, and that she is so nervous that it might be dangerous to her to be examined at all. I think she could distinguish between the court going to her house and she herself coming to the court." The witness whose deposition it was proposed to read lived not far from the court : — Held, that the deposition was not admissible. Beg. V. Far roll, 2 L. E., C. C. 116 ; 43 L. J., M. C, 94 ; 29 L. T. 404 ; 22 W. K. 578 ; 12 Cox, C. C. 605. Digitized by Microsoft® 763 CKIMINAL l.K^— Evidence. 764 When a medical man testifies that the attend- ance of a witness aged eighty-seven, who had given evidence before the coroner, will be dan- gerous to her life, and that he will not answer for the consequences if she is required to appear in court, but. that she is suffering from no illness beyond great nervousness which may bring on a fit of apoplexy if she is publicly to give her ' evidence, her deposition taken before the coroner will not be admissible. Beg. v. Thomvson, 13 Cox, C. C. 181. Insanity of Witness.]— If ar witness is actually insane at the time of the trial of an indictment for a misdemeanor, his deposition taken before the committing magistrate is receiv- able the same as if the witness was dead, although the insanity of the witness may be only temporary ; but if it appears that the wit- ness is not insane, but that the witness has been sufEering from delirium and depression of spirits in consequence of a blow on the head, and that his intellect is affected by the injuries he has received, and it is the opinion of his physicians that he will recover, then the deposition is not receivable. Beg. v. Marshall, Car. & M. 147. ' Witness kept away by Procurement of Prisoner.] — If the deposition of a witness on a charge of an indictable offence has been regu- larly taken before a magistrate, and at the time of the trial such witness is dead or so ill as not to be able to travel, the deposition may be read as evidence against the prisoner. So also, if it is proved that the witness is kept away by the prisoner's procurement. Beg. v. Scaife, 17 Q. B. 238 ; 5 Cox, C. C. 243 ; 2 Den. G. C. 281 ; 20 L. J., M. C. 229 ; 15 Jur. 607. But such deposition is not admissible on the ground merely that the prosecutor, after using every possible endeavour, cannot find the wit- ness. Jl>. If procurement of the absence is shewn, and there are several prisoners, the deposition is evi- dence against those only who are proved to have procured the absence. li. d. Copies. Furnished on Payment.] — By 11 & 12 Vict, c. 42, s. 27, at any time after all the examinations shall have ieen completed, and leforc the first day of the assizes or sessions, or other first sitting of the covrt at which any person ad- mitted to iail is to be tried, sueh person may require, and shall be entitled to have of and from the officer or person having the custody of the same, copies of the depositions on which he shall have been committed or bailed, on payment of a reasonable sum for the same, not exceeding at the rate of three halfpence for each folio of 90 words. (^Substituted for provision contained iw 6 & 7 Will. 4, c. 114, s. 3, repealed by s. 34 of 11 & 12 Vict. c. 42.) Bigbt to Copies of Depositions.] — Under 6 & 7 Will. 4, c. 114, s. 3, persons committed to prison "for re-examination on charges of felony, were not entitled to demand copies of the depo- sitions Fletcher, Ex parte, 1 New Sess. Cas. 40-1 D. & L. 996 ; 13 L. J., M. 0. 67 ; 8 Jur. 269' • S. C, nom. Beg. v. London (Lord Mayor'), D. & M. 486 ; 5 Q. B. 555. The right to copies does not attach until the prisoner is held to bail, or committed to prison for trial. lb. A prisoner had been committed on a charge of high treason, and afterwards the grand jury returned a true bill against him with others for feloniously demolishing a house under 7 & 8 Geo. 4, c. 30, s. 8. He pleaded to the indictment and wished to be tried after the other prisoners who were indicted with him for feloniously demolish- ing the house on the ground that he had had no copy of any depositions as to that charge. This was not allowed, as the prosecution might have been commenced without going before any magis- trate, and then there would have been no de- positions at all. Beg. v. Simpson, Car. & M. 669. A party applying to the Queen's Bench for a rule, calling upon the justices^ to furnish copies - of the depositions taken against him, must shew a right existing at the time of his application to the court, as well as at the time of the refusal by the justices to grant the copies. Beg. v. Herefordshire (Justices'), 1 L., M.& P. 323 ; S. C, nom. Humphreys, Ex parte, 4 New Sess. Cas. 179 ; 17 L. J., M. C. 189 ; 15 Jur. 608. The 11 & 12 Vict. c. 42, s. 27, applies only to the case of a person committed to prison or admitted to bail for the purpose of being tried. lb. Depositions taken before Coroner.] — Depositions taken before a coroner were within 6 & 7 Will. 4, c. 114, s. 3, which required copies of depositions to be furnished on application to prisoners at the rate of charge therein provided ; and a coroner who demands more is guilty of ex- tortion in his office. Beg. v. White, 5 Cox, C. C. 562. A coroner's jury, on the investigation of a case of homicide, returned a verdict of wilful murder against some person or persons unknown. The coroner returned the deposition he had taken to the Central Criminal Court : — Held, on applica- tion by the counsel for the prisoner indicted for the murder of the same person, for a copy of such depositions, that, although the coroner could not in such a case have been compelled to return them, under 7 Geo. 4, c. 64, s. 4, yet that having done so, the judges had power, by their general authority as a court of justice, to order a copy to be given if they thought it material to the interests of justice. Beg. v. Greenacre, 8 C. & P. 32. Copy of Prisoner's Statement.] — A pri- soner was not entitled, under 6 & 7 Will. 4, c. 114, s. 3, to a copy of his own statement returned by the magistrate, as made before him, but only to a copy of the depositions of the witnesses against him. Beg. v. Aylett, 8 C. & P. 669. e. Examination on — Putting in, &c. Counsel allowed to see Depositions in another Case.] — A. was committed for having received stolen iron. B. was admitted as a witness for the crown against A. The counsel of A. applied to the judge for a sight of the depositions which had been returned against B., which was granted, Beg. V. -Walford, 8 C. & P. 767. Practice relating to.] — The reading, on the part of the prosecution, of the prisoner's state- ment, returned by the magistrate at the end of the depositions, does not give the prisoner the Digitized by Microsoft® 765 CEIMINAL -LK^— Evidence. 766 right to consider the depositions as in evidence on the part of the prosecution, though it appears that they were all taken before the statement was made ; but if the prisoner wishes to have the whole or any particular part of the deposi- tions read, he must read it as his evidence. Rex V. Pearson, 7 C. & P. 671. The practice of putting the depositions into the hands of a witness on cross-examination, telling him to read over the evidence which he has given before the magistrates, and then ask- ing him whether he adheres to his present state- ment, without putting the depositions in evidence, or giving the jury an opportunity of knowing their contents, is inexpedient, and contrary to principle. Reg. v. Ford, 2 Den. C. C. 245 ; 3 C. & K. 113 ; T. & M. 573 ; 20 L. J., M. C. 171 ; 15 Jur. 406. The proper course is, to read the deposition to him at the time, and to cross-examine upon it, or to put it in afterwards as evidence for the prisoner. lb. . A vritness may be asked by prisoner's counsel as to what he said before the coroner, without putting in the depositions. Reg. v. Moloney, 9 Cox, C. C. 26. A prosecution cannot use or refer to the depo- sitions without putting them in. Reg. v. Mailer, 10 Cox, C. C. 43. If upon a trial a witness makes a statement which does not appear in his deposition, he may be asked, on cross-examination, without his de- position being put in, whether he ever made such a statement before. Reg. v. Moir, 4 Cox, C. C. 279. In a case of felony, in order to prove that a witness did not state a particular fact before the magistrate, bis deposition must be put in, and a witness cannot be questioned as to what he either did or did not state before the magistrate, with- out first allowing him to read, or to have read to him, his deposition taken before the magistrate. Reg. V. Taylor, 8 C. & P. 726. In cross-examining a witness who has been examined before the magistrate, although it is admissible to ask him, referring to the deposi- tions, whether he has not said so-and-so, his answer must be taken, unless the depositions are put in to contradict him, and it is not admissible to state that the depositions do contradict the witness without thus putting them in. Reg. v. Riiley, 4 r. & F. 964. On the trial of a prisoner his counsel may ask a, witness for the prosecution whether he did not make a certain statement whilst under cross- examination before the magistrates, although the depositions contain no note of such cross-exami- nation. Reg. v. Curtis, 2 C. & K. 763. A witness cannot be cross-examined as to his statements made before the committing magis- trate, until his depositions have been read over to him ; such questions may, however, be put by the court personally, and by the prisoner's coun- sel, as the mouthpiece of the court, by its per- mission. Reg. V. Peel, 2 P. & F. 21. There is no distinction between depositions before a coroner and before a magistrate with reference to the modes of cross-examination upon them. A witness cannot therefore be asked on cross-examination as to what he said before the coroner. But the dep6sition may be put into the witness's hands to read over to himself and refresh his memory. Reg. v. Barnet, 4 Cox. C. C. 269. A witness cannot be asked on cross-examinar tion whether, when he was examined before the magistrate, he recollected such and such a particular fact, Reg. v. Newton, 4 Cox, C. C. 262. Where witnesses were sworn and examined before a magistrate, in the presence of the prisoner, and minutes of the evidence were written down by the clerk to the magistrates, and afterwards the depositions were written out from the minutes and the statements of the witnesses, by a clerk in the magistrates' clerk's ofBce, after which the depositions so written out were read over, and signed in the presence of the magistrate and the prisoner : — Held, that an answer given by a witness to the clerk in the magistrates' clerk'soffice, in the course of writing out the depositions, was properly receivable in evidence, without the production of the deposi-' tions. Reg. v. Christopher, 4 New Sess. Cas. 139 ; 2 C. ■& K. 994 ; 1 Den. C. C. 536 ; T. & M. 225 ; 4 Cox, C. C. 76 ; 19 L. J., M. C. 103 ; 14 Jur. 203. DepositionB Lost — Cross-Examination on Copy.] — If it is shewn, that depositions were regularly returned by the magistrates to the proper officer, and it is proved by the latter that they cannot be found after diligent search, the prisoner's counsel may cross-examine from copies of them, those copies being proved to be correct by the magis- trates' clerk. Reg. v. Shellurn, 9 C. & P. 277. Refreshing Memory of Witness.] — ^Where a witness for the prosecution gives a different answer on examination in chief to that which was expected, his deposition may be put in his hands for the purpose of refreshing his memory, and the question then put to him. If the witness persists in giving the same answer after his me- mory has been so refreshed, the question may be repeated to him from the deposition in a leading form. Reg. v. Williavis, 6 Cox, C. C. 343. • The deposition made by a witness was allowed to be put into his hands to refresh his memory, and he was then asked what he said about a fact which he had answered before in the negative,- and answered the question affirmatively. Reg. v. Quin, 3 F. & F. 818. Where an accomplice who could not read had made a statement before the committing magis- trate, and at the trial gave evidence falling very short of what he said before the magistrate, the judge allowed his deposition to be shewn to him, but would not allow the deposition to be read to him by the officer of the court, that the counsel for the prosecution might examine upon it. Reg. V. Beardmorc, 8 C. & P. 260. Where, on cross-examination, a witness is asked, with permission of the judge, to look at his depo- sition before the committing magistrate, and say whether he still adheres to his present statement, and it appears the witness is unable to read, the depositions cannot be read to the, witness for the same purpose without being put in as evidence. Reg. V. Matthews, 4 Cox, C. C. 93. Evidence not in Depositions.] — Material evi- dence may be given against a prisoner on his trial in addition to what appears from the depositions to have heen given against him before the magistrates. Req, v. Ward, 2 C. & K. 759. Digitized by Microsoft® 767 CRIMINAL JjAW— Evidence. 768 Calling Witnesses not in Depositions.] — A witness whose eyidenoe is relevant may be called by the prosecution, although he has not been before the magistrates, and although his name and the substance of his evidence have not been given to the prisoner or to his attorney. Sea. v. Greenslade, 11 Cox, 0. C. 412. How Proved.]— In a case affecting the life of a party, it is very desirable that a magistrate who took the depositions against the prisoner with his own hand should be called as a witness, before the depositions are read, to prove the cor- rectness of what he took down ; but it is not absolutely necessary, in point of law, that he should be called, and the depositions may be read on proof of his handwriting. Beg. v. PiTtesley, 9 G. & P. 124. If upon the trial of a prisoner a witness gives evidence of facts of which no mention is made in his deposition as taken before the committiug magistrate, the clerk to the magistrate may be called for the purpose of stating that such facts were stated by the witness when he made his deposition, but were not taken down by him, the clerk. Reg. v. Moore, 20 L. T. 987. Depositions may be proved by a person who was present, without calling the magistrate or his clerk. Reg. ■/. WiUliaw, Car. & M. 145. 3. Peesumptions ok Probabilities of Guilt. In a criminal case the jury, in order to con- vict, ought to be satisfied by the evidence, affirmatively, as a conviction created in their minds beyond all reasonable doubt, that the guilt of the prisoner is established ; and if there is only an impression of probability, they ought to acquit him. Reg. v. White, 4 F. & F. 383. So far as the case rests on direct testimony, the jury should, if there are any circumstances to impeach the credibility of the witnesses, look carefully to those circumstances as elements of doubt in the case. lb. A mere scintilla of evidence not sufficient to justify a verdict ought not to be left to the jury. Re-g. V. Smith, L. & C. 607. 4. Accomplices. Corrohoration — Bule of Practice not of Law.] — It is not a rule of law, but of practice only, that a jury should not convict on the unsupported testimony of an accomplice. Reg. v. &tubbs, Deai-s. C. C. 555 ; 25 L. J., M. C. 16 ; 1 Jur., N. S. 1115. Therefore, if a jury chose to act on such evidence only, the conviction cannot be quashed as bad in law. lb. The better practice is for the judge to advise the jury to acquit, unless the testimony of the accomplice be cori'oborated, not only as to the circumstances of the offence, but also as to the participation of the accused in the transaction, and when several parties are charged, it is not .sufficient that the accomplice should be con- firmed as to one or more of the prisoners to justify a conviction of those prisoners with respect to whom there is no confirmation. 2 b. The rule that the evidence of an accomplice requires corroboration is not a rule of law, but a rule of general and usual practice ; the applica- Digitized by Microsoft® tion of which is for the discretion of the judge by whom the case is tried ; and in the application of the rule much depends on the nature of the offence, and the extent of the complicity of the witness in it. Reg. v. Roves, 1 B. & S. 311 ; 30 L. J., Q. B. 301. Before admitting a person as an approver, it is the duty of the magistrate to inquire into the case and see how far such approver is mixed up with the transaction, or to what extent he would be criminally liable for his acts. Though an accomplice, who has been admitted as au ap- prover, may give evidence, no matter how great his own criminality, it is a wise observation that, without corroboration, a jury should be slow to convict on such evidence. Reg. v. Dunn, 5 Cox, C. C. 507. A prisoner ought not to be convicted upon the evidence of any number of accomplices, uncon- firmed by other testimony. Rex v. Noajiei, 5 C. & P. 326. A person indicted for a misdemeanor may be legally convicted upon the uncorroborated evi- dence of an accomplice. Rex v. Jones, 2 Camp. 102 ; S. P., Rex v. Hastings, 7 C. & P. 152. Although all persons present at and sanction- ing a prize-fight, where one of the combatants is killed, are guilty of manslaughter, as principals in the second degree ; yet they are not such accomplices as to require their evidence to be confirmed, if they are called as witnesses against other parties charged with the manslaughter. Rex V. Hargrave, 5 C. & P. 170. A married woman who consents to her hus- band's committing an unnatural offence with her, is an accomplice in the felony, and, as such, her evidence requires confirmation, although consent or not consent is quite immaterial to the offence. Reg. v. Jcllyman, 8 C. & P. 601. Evidence Corroborated as to some Prisoners.] — On an indictment against principal and acces- sories, the case against the principal was proved by the testimony of an accomplice, who was confirmed as to the accessories, but not as to the principal. The jury was directed to acquit the prisoners. Rex v. Wells, M. & M. 326. If the testimony of an accomplice is confirmed so far as it relates to one prisoner, but not as to another, the one may be convicted on the testi- mony of the accomplice, if the jury deems him worthy of credit. Rex v. Dawber, 3 Stark. 34, 35, n. What Corroboration Sufficient.] — An accom- plice does not require a confirmation as to the person he charges, if he is confirmed as to the particulars of his story. Rex v. Birltett, K. & E. C. C. 251. And the corroboration of the evidence of an accomplice need not be on every material point, but must be so confirmed as to convince the jury that his statement was coiTect and true. Rex V. Barnard, 1 C. & P. 88. There is a great difference between confii-ma- tions of an accomplice as to th£ circumstances of the felony, and those which apply to the individual charged. The former only shew that the accomplice was present at the commission of the offence, but the others shew that the prisoner was connected with it. Confirmation of an accomplice as to the commission of the felony, is really no confirmation at all, and though a jury may legally convict on the evidence of an 769 CEIMINAL 'LAW— Evidence. 770 accomplice only, the Judges advise them not to act on the evidence of an accomplice, unless he is confirmed as to the particular person who is charged with the offence. Rex v. Wilkes, 7 C. & P. 272. The evidence of an approver may be acted on by the jury if they think it true, but the practice is to require some corroboration of Ijis evidence. It is not necessaiy that he should be corroborated in every particular, for if so it would not be necessary to call him as a witness, but there must be a certain amount of con- firmation sufficient to satisfy the jury. Reg. v. Gallagher, 15 Cox, C. C. 291. On an indictment for causing a person to take excessive quantities of a noxious thing, there being no other evidence but that of the woman that the prisoner incited her to take the excessive doses except that her father accused him of giving his daughter such things " to produce abortion," and that he did not deny it : — Held, that this was some corroborative evidence, even assuming the woman to be in the position of an accomplice requiring corroboration. Reg. v. Cramp, U Cox, C. C. 390. In a case of felony the testimony of the wife of an accomplice is not such evidence as a jury ought to rely upon as confirmation of the state- ment of the accomplicci Rex v. JVeal, 7 C. & P. 168. On a charge of stealing two sheep, an accom- plice stated that the prisoner himself stole them ; and, to confirm Mm, evidence was given that a quantity of mutton was found in the house iA which the prisoner resided, which con'esponded with parts of the stolen sheep : — Held, a sufficient confirmation of the accomplice to be left to the jury ; but that if the confirma- tion had merely gone to the extent of confirming the accomplice as to a matter connected with himself only, it would not have been sufficient. Reg. V. BlrkHt, 8 C. & P. 732. The confinnation of an accomplice ought to be as to some matter which goes to connect the prisoner with the transaction, and it would be highly dangerous to act on the evidence of an accomplice uuconfinued with respect to the party accused. Reg. v. Dylic, 8 C. & P. 261. The confirmation of an accomplice should be as to some circumstance affecting the party accused, 'as by shewing the party and accom- plice together under such circumstances as were not likely to have occurred, unless there was concert between them. Reg. v. Farlar, 8 C. & P. 106. In a case of night-poaching, the only confirma- tion was, that, on the evening of the offence, the accomplice and the prisoner were drinking to- gether at a public-hquse, commonly frequented by the prisoner, and that they both left the house together, when it was shut up for the night. This was considered no sufficient con- firmation, li. Evidence of Prisoner pleading Guilty when Beceived.] — One prisoner who has pleaded guilty will not be allowed to be called as a witness against another, until the judge has heard the evidence necessary to corroborate that of an accomplice. Reg. v. Sparhs, 1 F. & F. 388. Acts of Accomplice Evidence against Prisoner.] — ^An indictment charged K. and W. with falsely pretending to B. that they had a quantity of tobacco, which they proposed to sell, and did sell to him, and thereby obtained money from him. The evidence was, that K. and another pereon. P., acting together, were the chief parties by whom the false pretences had been made : — Held, that the acts of P. were the acts of K., and admissible against him upon the indictment. Reg. V. Kerrigan, L. & C. 383 ; 9 Cox, C. C. 441 ; 3ii L. J., M. C. 71 ; 9 L. T. 843 ; 12 W. E. 416. Before Grand Jury.] — ^An accomplice may give evidence before a grand jury to support an in- dictment against a particeps criminis. Rex v. Bodd, 1 Leach, C. 0. 155. Information of Dead Accomplice.] — The in- formation of a dead accomplice may be read in evidence against a prisoner. Rex v. Westieer, 1 Leach, 0. C. 12. Exemption from Prosecution.] — ^An accomplice, who is a witness for the crown, is not entitled as a matter of right to be exempt from being pro- secuted for other offences at the same assizes, at which he has been such witness. Rex v. Lee, K. & B. C. C. 361 ; S. P., Rex v. Brunton, K. & B. C. C. 454. An accomplice, who in a case out of the statutes, is, under the practice allowed, admitted by the justices of peace as a witness, and is afterwards prosecuted, has only a claim to the mercy of the crown, founded on an express or implied promise of the magistrate on a condition performed : and it depends on his conduct fully and fairly disclosing the joint guilt of himself and his companions, whether the court will admit him to bail, that he may apply for a pardon. Rex v. Rndd, Cowp. 331 ; 1 Leach, C. C. 115. 5. GOTEENMEITT SPIES. CroBS-Ezamination.] — Upon an indictment for murder, a sergeant in the police, after stating in cross-examination that he attended a debating society where political subjects were discussed, by the direction of the commissioners of police, for the purpose of noticing and reporting, and that he went in private clothes, was asked if he was a spy : — Held, that the question could not be put, as it required the vritness to draw an inference from facts ; but that he might be asked under what directions, and for what purpose he went, and what he did when there. Reg. V. Bernard, 1 F. & F. 240. Corrohoration not Bequired.] — ^A person em- ployed by government to mix with conspirators, and pretending to aid their designs for the pur- pose of betraying them, does not require cor- roboration as an accomplice. Reg. v. Mulling, 3 Cox, C. C. 526. 6. Competency op Witnesses. No Incapacity on Ground of Crime or In- terest.] — By 6 & 7 Vict. c. 85, s. 1, no person offered as a witness sliall be excluded by reason of incapacity from crime or interest from giving evidence in any criminal proceeding in any court, but every person so offered may and shall be admitted to give evidence on oath or solemn affirmation, wliere affirmation is by law receiv- Digitized by Microsoft® 771 CRIMINAL IjAM— Evidence. 77a able, notwithstanding mcli person may or shall be interested, and notwithstanding such person offered as a witness may have been previously conmcted of crime. For or against Self-incrimination.] — By 14 & 15 Vict^c. 99, ii. 3, nothing therein, contained shall render any person, wlto in any criminal proceeding is cliai-ged with the commission of any indictable offence, or any offence punishable on swrnmary conviction, competent or compellable to give evidence for or against himself or lierself, or shall render any person compellable to answer any guestio7i tending to criminate himself or herself, Non-Bepair of Highway or Bridge.] — By 40 & 41 Vict. c. 14 (An Act for the Amendment of the Law of Evidence in certain Cases of Misde- meanor), s. 1, on the trial of any indictment or otlier proceeding forthenmi-repair of any public highway or bridge, or for a nuisance to any public highway, river or bridge, and of any otlier indictment or proceeding instituted for tTie putpose of trying or etiforcing a civil right only, every defendant to such indictment or proceeding, and the wife or husband of any such defendant, shall be admissible leitnesses and com- pellable to give evidence. Criminal Proceeding — ^What is.]^An infor- mation against a paity, nnder 1 & 2 WUl. 4, c. 32, s. 23, for unlawfully nsiiig snares for taking game, he not being authorized so to do for want of a game certificate, is a criminal proceeding for an offence punishable on summary conviction within s. 3 of the 14 & 15 Vict. c. 99, and therefore the party charged is not rendered a competent witness by that statute. Cattell v. Ireson, 4 Jnr., N. S. 560. When articles of the peace are exhibited against any person, the person against whom they are exhibited may not give evidence before the justices in contradiction of the facts stated in the articles. Lost v. Sutton, 45 L. J., M. C. 95 ; 34 L. T. 730. TJpon a proceeding under 9 Geo. 4, c. 61, s. 21, against an alehouse-keeper, for unlawfully and knowingly permitting divers persons of noto- riously bad character to assemble and meet to- gether in his house and premises against the tenure of his licence, such alehouse-keeper is not a competent witness, and cannot give evidence in his own behalf. Parker v. Green, 2 B. & S. 299 ; 9 Cox, C. C. 169 ; 31 L. J., M. C. 133 ; 6 L. T. 46. Self-incrimination.] — The persons who are supposed to have been the seconds at a duel may refuse to give evidence on the trial of the principals. Rex v. England, 2 Leach, C. C. 767. But their testimony may be received as the testimony of persons admitted witnesses for the crown. lb. And if once sworn, they must disclose the whole truth, although they may involve them- selves in the guilt of the transaction. Ih. Competency, how Tried.]— The competency of a viritness may be tried by examining him on the voir dire or by evidence aliunde. Wahejield'i case, 2 Levrin, 0. C. 279. ■Witness Insane— Duty of Judge, j— A lunatic patient, who had been in confinement in a lunatic asylum, and who laboured under the delusion, both at the time of the transaction and of the trial, that he was., possessed by 20,000^ spirits, but whom the medical witness believed. to be capable of giving an account of any transaction that happened before his eyes, and. who appeared to understand the obligation of an oath, and to believe in future rewards and punishments, was called as a witness on a trial for manslaughter : — Held, that his testimony was properly received in evidence ; and that where a person under an insane delusion is called as a vritness, it is for the judge, at the time, to- say whether he is competent to be a witness, and it is for the jury to judge of the credit that is to be given to his testimony. Reg. v. Hill, 2 Den. G. C. 254 ; T. & M. 582 ; 5 Cox, C. C. 259 ; 15 Jur. 470. If upon his examination upon the voir dire, he exhibits a knowledge of the religious nature of an oath, it is a ground of his admission. lb. It is the duty of the judge presiding at a trial to decide as to the competency of a witness ; and it he has admitted a witness to give evidence, but upon proof of subsequent facts affecting the capacity of the witness and of observations of his subsequent demeanor, the judge changes his opinion as to his competency, the judge may stop the examination of the vritness, strike his evi- dence out of the notes, and direct the jury to consider the case exclusively with reference to- the eridence of the other witnesses. Reg. v. Whitehead, 1 L. E., C. C. 33 ; 35 L. J., M. C. 186 ; 14 L. T. 489 ; 14 W. E. 677. Guilty Party not Indicted.] — If two are guilty of a murder, and one is indicted and the other not, the party not indicted is a good witness for the crown. Rex v. Tin^kler, 1 East, P. C. 354. Persons joinlly Indicted before Conviction.] — Three were jointly indicted for felony. They pleaded guilty and were tried together. Two of them were allowed before conviction to be called as witnesses on the behalf of the third. Reg. v. J)eeley, 11 Cox, C. C. 607 ; 23 L. T. 168. A., B., C. and D. were indicted together. After plea, and before they were given in charge to the jury, the court allowed D. to be removed from the dock, and examined as a witness against his associates. Reg. v. Gerber, T. & M. 647. ^Vhere two prisoners are jointly indicted for a felony and plead not guilty, l>ut only one is given in charge to the jury, the other is an ad- missible vritness, although his plea of not guilty remains on the record undisposed of. Winsor v. Reg. (in error'), 1 L. E., Q. B. 390 ; 35 L. J., M. C. 161 ; 12 Jur., N. S. 561 ; 14 L. T. 567 ; 14 W. E. 695 ; 7 B. & S. 490— Ex Ch. On an indictment of three persons jointly for publishing blasphemous libels, one was tried separately : — Held, that the defendant, thus tried first and separately, was entitled to call the other defendants as witnesses on his behalf, though they could not be called as vritnesses for the prosecution vrithout taking a verdict of acquittal against them, the trial being separate. The observations of Cockbum, C. J., in Reg. v. Win- sor, held not applicable, as there the feUow- prisoner was called for the crown. Reg. v. Bradlaugh pto. 2), 15 Cox, C. C. 217. Of Persons Tried together.] — ^When two are Digitized by Microsoft® 773 CRIMINAL JjAW—JEvidence. 1U indicted and tried together, one is not a com- petent witness for the other. Jteg. v-. Payne, 1 L. E., C. C. 349 ; 41 L. J., M. C. 65 ; 26 L. T. 41 ; 20 W. E. 390 ; 12 Cox, C. C. 118. Jointly Indicted — Pleading Guilty.] — ^A. and B. being indicted for stealing, and C. for receiving, B. pleaded guilty, and was tendered as a witness against A. and C. He was objected to by the counsel for the prisoners, as inadmissible : — Held, an admissible witness at common law. Beg. V. Hinlts, 1 Den. C. C. 84 ; 2 C. & K. 462. A. and B. were jointly charged in the same in- dictment with breaking into a house and stealing goods. A. pleaded guilty, and B. pleaded not guilty, and was tried. A.'s plea of guilty was re- corded, but no sentence had been passed on him. B. wished to call A. as a witness for him :-^Held, that he might do so. Meg .y .6eorge,Gs.x. &M. 111. A prisoner who pleads guilty to an indictment, and who has been previously convicted of felony, is a competent witness against other prisoners charged in the same indictment. Meg. v. Drury, 3 C. & K. 190 ; S. P., Rug. v. Arundel, 4 Cox, C. C. 260. Prisoner Sentenced to Death.] — A convict ■under sentence of death is incapable of being called as a witness. Reg. v. Weii, 1 1 Cox, C. C. 133. Husband and Wife.]— By 14 & 15 Vict. c. 99, S. 3, nothing therein contained shall in any criiilinal proceeding render aivy husband com- jpctetit or compellable to give evidence for or against his wife, or any wife competent or com- pellable to give evidence for or against her husband. By 16 & 17 Vict. c. 83, s. 2, nothing therein containsd shall render any husband competent or compellable to gire emdence fon or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceeding. By s. 3, no husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be iompellable to disclose any com/nmnication made to her by her husband during the marriage. When Competent Witnesses.] — In all cases of personal injuries committed by the husband or wife against each other, the injured jjarty is an admissible witness against the other. Rex V. Jagger, 1 East, P. C. 455 ; S. P., Reg. v. Pearce, 9 C. & P. 667. ' On a charge of abduction, the wife is a witness &s well for as against her husband, although she has cohabited with him from the day of the marriage. Rex v. Perry, 1 Euss. 0. & M. 949 ; 1 East, P. C. 454. Where several defendants were indicted for conspiring to carry away a girl under the age of sixteen from her father's custody and to cause her to marry one of the defendants : — Held, that assuming the girl to be at the time the lawful wife of one of the defendants, she was a com- petent ■ witness for the prosecution. Rex v. Wakefield, 2 Lewin, C. C. 279. QuEere, whether a woman who has gone through the ceremony of marriage with a man can be allowed to prove the invalidity of the marriage, and that she is not his wife. Peat's case, 2 Lewin, C. C. 288. A. being tried for sheep stealing, it was pro- posed to call the wife of B. to prove that A. and B. had jointly- stolen the sheep, B. having been convicted of it at the previous quarter sessions : — Held, that she was a competent witness. Reg. V. Williams, 8 C. & P. 284. A wife is not a competent witness against her husband, charged under the Vagrant Act (5 Geo. 4, c. 83, s. 3), with neglecting to maintain her, whereby she became chargeable to the parish. Reeve v. Wood, 5 B. & S. 364 ; 34 L. J., M. C. 15 ; 11 Jur., N. S. 201. A reputed firet wife, on a charge of bigamy, cannot give evidence in favour of her supposed first husband. Peat's case, 2 Lewin, C. 0,111. / Husband or Wife of one Prisoner.] — The wife of one of several persons on their trial at the same time on a joint indictment cannot be called as a witness for or against any of them, notwith- standing that the indictment contains more counts than one respectively charging distinct offences. Reg. v. Tlwmpson, 1 L. E., 0. 0. 377 ; 41 L. J., M. C. 112 ; 26 L. T. 667 ; 20 W. E. 728 ; 12 Cox, C. 0. 202. On an indictment for larceny the wife of a receiver who is not indicted cannot be com- pelled to give her evidence against the prisoner. Rex V. Ast, Oar. 0. L. 66. On an indictment against the wife of W. R. and others, for a conspiracy in procuring W. S. to mariy, W. S. is not a competent witness for the prosecution. Rex v. Serjeant, E. & M. 352. The wife of one of several prisoners is inad- missible as a witness. Rex v. Hood, 1 M. C. C. 281 ; S. P., Rex v. Smith, lb. 289. Even to prove an alibi by the other. Reg, v. Penslow, 2 Cox, C. C. 230. The wife of one defendant cannot be called on behalf of a co-defendant, though the parties ap- pear and defend separately. Rex v. Locker, 5 Esp. 107. A. and B. were indicted for burglary and steal- ing. A part of the stolen property was found in the house of each of them : — Held, that the wife of A. was a competent witness to prove that she took to B.'s house the stolen property that was found there. Reg. v. Sills, 1 0. & K. 494. The prisoner was indicted for obtaining money from the trustees of a savings bank, by falsely pretending that a document produced by the wife of D. had been filled up by D.'s authority ; and in another count for conspiring with the wife of D. to cheat the bank. D.'s wife presented the document, which had been fraudulently filled up at the instance of the prisoner, and obtained the money, and afterwards eloped with the pri- soner. D.'s evidence was necessary to shew that he had given no authority, but it was objected to on the ground that it implicated his wife : — Held, that D.'s evidence was admissible, as the wife was not charged upon the indictment. Reg. V. Halliday, Bell, 0. 0. 257 ; 8 Cox, C. C. 298 : 29 L. J., M. C. 148 ; 6 Jur., N. S. 514 ; 2 L. T. 254 ; 8 W. E. 423. Marriage Invalid.] — One of two prisoners had married his deceased wife's sister : — Held, that she was a competent witness against him upon his trial. Reg. v. YouTig, 5 Cox, C. 0. 296. A witness for the prosecution was examined on the part of the prisoners on the voir dire, and deposed that she was married to one of them : — Held, that she might be further examined on Digitized by Microsoft® 775 CEIMINAL 'LkW—Evidence. ipLI il .+1' °'^ ^^^ P^^' °^ t^e prosecution, to prove that the same prisoner had been previously married to her sister. The witness stated, on such further examination, that she and her sister, who was seven years older than herself, had always lived together with their parents and that she always believed her to be her sister ! Held, sufficient proof of the relationship. Ih. 7. Compelling Attendance. Payment of Expenses Refused.] — Where a witness was subpoenaed by a defendant indicted tor a conspiracy, and before he was examined requested to have his expenses paid, and stated that no money was paid to him at the time he was served, he was obliged to give evidence, al- though the defendant refused to pay such ex- penses, and although the indictment was removed by certiorari, and came down for trial at the assizes as a civil recoi-d. Hex v. CooJte, 1 C. & P 322. Attachment for not Obeying Subpoena.]— A subpoena may be issued from the crown-office, requiring a witness to attend at the assizes in the country, to give evidence in support of an intended prosecution for a felony ; and the court will grant an attachment against him for not attending in obedience to the subpoena. Rex v. Ring, 8 T. R. 585. Person Present may be Called though not Subpoenaed.] — In a criminal case, a person, who is present in court, when called as a witness, is bound to be sworn and to give his evidence, al- though he has not been subpoenaed. Rex v. Sadler, 4 0. & P. 218 ; S. P., BlacTtbarn v. Har- greave, 2 Lewin, C. C. 259. 8. Swearing. Affirmation Allowed on Conscientious Grounds.] — By 2-1 & 25 Vict. c. 66, reciting that it is expedient to grant relief to persons who may refuse or ie unwilling, from alleged conscientious motives, to ie sworn in criminal proceedings, it is enacted, if ang person called as a witness in any eourt of criminal jurisdiction in England or Ireland, or required or desiring to malie an affidavit or de- position in the course of any criminal proceeding, shall refuse or ie unwilling, from alleged' con- scientious motices, to ie sworn, it shall ie lawful for the court or judge, or other pres'iding officer or person qualified, to talie affidavits or deposi- tions, upon being satisfied of the sincerity of such oijeotions, to permit such person^ instead of icing sworn, to make his or lier solemn affirmation or declaration in the words following, tliat is to say : " I, A. B., do solemnly, sincerely, and truly affirm and declare, that the taldng of any oath is according to my religious ielief unlawful, and I do also solemnly, sincerely, and truly affirm and declare," ^-c, which solemn affirma- tion and declaration shall ie of the same force and effect as if such person had taken an oath in the usual form. And by s. 2, if the declaration or affirmation ii false, the party making same is liable to the penalties and punishment of perjury. Affirmation Allowed on other Grounds.] — By 32 , & 33 Vict. 0. 68, s. 4, if any person called to give | Digitized by Microsoft® 11^ evidence in any court of justice, whether in a civil orcnmtnal proceeding, shall oiject to take an oath, or shall be objected to as incompetent to tahe an oath, such person shall, if the presiding judge 'IS satisfied that the taking of an oath would have no iinding effect on his conscience, make the foUoicitig promise and declaration: " I solemnly promise and declare that the evi- dence given by me to the court shall ie the truth, the whole truth, and nothing iut the truth " .- And any person who, having made'sueh promise and declaration, shall wilfully and corruptly give false evidence, shall ic liable to be indicted, tried and convicted for perjury at if he had talien an oath. Witness must be Sworn when Affirmation not Allowed.]— No one can give evidence in a court of justice without being sworn, unless he belongs to one of the classes for whom special provision has been made by the legislature. Maden v. Catanach, 7 H. & N. 360 ; 31 L. J., Ex 118 ■ 7 Jur., ST. S. 1107 ; 5 L. T. 288 ; 10 W. R. 112. ' Witness— How Sworn.]— A Scotch covenanter may give evidence in a criminal prosecution, on being sworn according to the custom of his sect, without kissing the book. Mildrone's case, 1 Leach, C. 0. 412. So a Mahometan may be sworn on the Koran in a prosecution for a capital ofience. Rex v. Morgan, 1 Leach, C. C. 54. Mode of swearing Chinese witnesses. Reg. v. Bntrehman, Car. & M. 248. A Chinese, who is sworn according to a form which is obligatory upon his conscience, is a good witness in a court of law. lb. Who may be Sworn.]— A negro, who was called as a witness, stated, before he was sworn, that he was a Christian, and had been baptized : — Held, that he ought to be sworn, and that no further question could be asked him before he was so. Reg. v. Serca, 2 C. & K. 53. An infant cannot, under any circumstances, be admitted to give evidence, except upon oath. Rex V. Powell, 1 Leach, C. C. 110. In cases of carnal knowledge of children, the infant witness, though under seven years of age, if apprised of the nature of an oath, must be sworn. Rex v. Brasier, 1 Leach, C, C. 199 • 1 East, P. C. 443. A witness, though deaf and dumb, may be sworn and give evidence on an indictment for felony, if intelligence can be conveyed to, and received by him, by means of signs and tokens. Ruston's case, 1 Leach, C. C. 408 ; S. P., Rex v. Jones, 1 Leach, C. C. 452, n. A witness cannot be sworn to give evidence unless he has a religious belief. Maden v. Ca- tanacli, 7 H. & N. 360 ; 31 L. J., Ex. 118 ; 7 Jur , N. S. 1107 ; 5 L. T. 288 ; 10 W. R. 112. Postponing Trial to Instruct Witness as to Oath.] — Where a bill for rape on a child under the age of ten has been ignored by the grand jury, in consequence of the judge refusing to allow the child to be sworn as a witness, on the ground of her want of knowledge of the obliga- tion of an oath, the prisoner was ordered to be detained in custody until the child could be properly instructed. Reg. v. Baylis, 4 Cox, C 0.23. A person who has no notion of eternity, or of ■777 CRIMINAL J.AW-^Evidenee. 778 a future state of rewards and punishments, can- not be examined as a witness, but the trial may "be postponed until the witness is instructed in ■the nature of this obligation. Rex y. Wliite, 1 Xeach, C. C. 430. In a case of carnally knowing and abusing a :girl under ten years of age, it appeared on an application on the part of the prosecution to post- pone the trial, that the girl was only six years •old, and by reason of her age quite incompetent to take an oath : — Held, that the trial ought not to be postponed in order that the child might be Instructed as to the nature of an oath ; but that there might be cases of children of more inatured intellect, e.g., of ten or twelve years old, who might be from neglected education incapable of being sworn, in which such a postponement might be proper. Reg. v. Nicholas, 2 C. & K. 246 ; S. P., Rex v. Williams, 7 C. & P. 320. Witness by Mistake not Sworn.] — If on an indictment for felony, after the jury has de- livered a verdict of guilty, it is discovered that one of the witnesses for the prosecution has given his evidence without having been pre- viously sworn ; the proper course to pursue is to direct the jury to reconsider the case, dis- missing from their minds the evidence of that particular witness. Reg. v. James, 6 Cox, C. C. 5. By whom Witnesses Sworn.] — Witnesses are sworn by the court through the instrumentality of some of its officers, and it is not material whether the oath is administered by the crier or clerk of the peace, so that it is done in open court. Reg. v. Tew, Dears. 0. C. 429 ; 24 L. J., M. C. 62. 9. Oedbeing to leave Couet. Eight to Order.] — It is almost a matter of right for a party to have a witness go out of court while a legal argument is going on as to bis evidence. Reg. v. Murphy, 8 C. & P. 297. Disobedience to Order — Effect of.] — Where a "witness for a prosecution remains in court after an order for the witnesses to withdraw, the judge may still allow him to be examined, subject to observations on his conduct for disobeying the •order. Reie v. CoUey, M. & M. 329. The witnesses had been ordered out of court, but the attorney remained in court : — Held, that lie could not be examined as a witness. Rex v. WeU, 3 Stark. L. of Ev. 1733. On a trial for arson, a witness for the prisoner had left the court, on an order being given for the witnesses to go out of court ; but he had afterwards come into court again, and heard a part ■ of the evidence : he was allowed to be •examined. Rex v. Brown, 4 C. & P. 588, n. But on the trial of an indictment for perjury, all the witnesses were ordered out of court. After this order a witness for the prosecution remained in court : the judge would not allow him to be examined. Rex v. WyUe, 6 C. & P. 380. 10. Names on Back op Indictment. Duty of Prosecution to call Witnesses.] — Counsel for the prosecution is not bound to call all the witnesses on the back of- an indictment. He may use his own discretion, but must have the witnesses in attendance. If the prisoner wishes i to have a witness called, when not called for the prosecution, the witness becomes his witness, and the counsel for the prosecution will have the right to reply. Rea. v. Cassidy, 1 F. & F. 79 ; S. P., Reg. V. Woo'dhead, 2 C. & K. 520. Where there are witnesses on the back of the indictment who have not been called, the prisoner may insist on their being put into the box as the witnesses for the crown, in order that they may be cross-examined in his behalf. Reg. V. Bailey, 2 Cox, 0. C. 191. It is, in general, a matter entirely within the discretion of counsel for the prosecution, whether all the witnesses at the back of the bill should be called on behalf of the crown or not ; and al- though the judge has the power to interfere, he will only exercise it in extreme cases. Reg. v. Edwards, 3 Cox, C. C. 82. Although the counsel in a, prosecution for felony is not bound to call every witness whose name is on the back of the indictment ; yet the judge may do so, to allow the prisoner's counsel an opportunity of cross-examining them. Rex V. Simmonds, 1 C. & P. 84. If counsel for the prosecution calls a witness whose name is on the back of the indictment, but does not examine him, and such witness is examined by the prisoner's counsel, any question put by the prosecutor's counsel after this must be considered as a re-examination, and therefore the prosecutor's coimsel cannot ask anything that does not arise out of the previous examination by the prisoner's counsel. Rex v. Beezlen, 4 C. & P. 220. Though the counsel for the prosecution may content himself with putting into the box a wit- ness whose name is on the back of the bill, with- out asking him any questions on the part of the prosecution ; yet it is better that he should be examined, whether his evidence is favourable to the prosecution or not, as the only object of the investigation is to discover the truth. Reg. v. Bull, 9 C. & P. 32. If the counsel for the prosecution declines calling a witness whose name is on the back of the indictment, it is in the discretion of the judge who tries the case, whether the witness shall or shall not be called, for the prisoner's counsel to examine him before the prisoner is called on for his defence. Rex v. Bodle, 6 C. & P. 186. If the witness is so called, the judge will allow the examination of the witness to assume the shape of a cross-examination, but will not allow the prisoner's counsel to call any witnesses to contradict him. lb. The calling of a witness, whose name is on the back of the indictment for the other side, to cross-examine him, is by no means of course. It is discretionary, even in felony, but it is a dis- cretion always exercised. Reg. v. Vincent, 9 C. & P. 91. Defendant not entitled to Names and Ad- dresses.] — The court has no power to oblige a, prosecutor to give to a, defendant the additions and places of residence of witnesses named on the back of an indictment. Reg. v. Gordon, 2 D., N. S. 417 ; 12 L. J., M. C. 84 ; 6 Jur. 996. A prisoner indicted for felony is not entitled to a list of the names and addresses of the witnesses on the back of the indictment, but he will be allowed to inspect the indictment for the purpose of seeing the names ' of such witnesses. Reg. v. Lacey, 3 Cox, C. C. 517. Digitized by Microsoft® 779 CBIMINAL 'LKSR— Evidence. '.^■■\ ^^^- Record.] -Where an indictment OS tried at msi pnus, the nisi prius record does Tiot siiew what names were on the back of the indictment. Rea; v. Smith, 5 C. & P 201 11 Declaeations in Akticulo moetis. See ante, Muebek. 12. Examining and Csoss-Examining Wit- nesses. When Court calls Witness.]— The court re- fused, on the application of the prisoner's counsel, to call a, witness who had been examined before the'coroner, but had not been called by the pro- secution. Reg. Y. Wiggim, 10 Cox, C. C. 562. See aUo cases ante, col. 778. Cross-Examination— What may be Asked.]— A witness for the crown cannot, in cross- examination, be compelled to state ' through what channel he made a disclosure to Govern- ment, either imnjediately or mediately. Wat- son's case, 2 Stark. 116. A witness for the prosecution in felony may be asked in cross-examination whether he has not stated certain facts before the grand jury, and the witness is bound to answer that question. Reg. T. Gibson, Car. & M. 672. Whether Witness previously Convicted.] —By 28 & 29 Vict. c. 18, s. 6,a witness may he questioned as to whether he has been convicted of any felony or misdemeanor, and, upon icing so questioned, if he eitlier denies or does not admit the fact, or refuses to answer, it shall ie lawful for the cross-examining party to prove such con- viction; and a certificate containing the sub- stance and effect only (omitting the formal part) of the indictment and conviction for such offence, purporting to be signed by tlie clerli of tile court or otlier officer having the custody of the records of the court where the offender was convicted, or by tlie deputy of such clerh or officer (for which certificate a fee of 5s. and no more shall be demanded or talierC), shall, upon proof of identity of tlie person, be sufficient evidence of the said conviction, without proof of tlie signature or official character of the person appearing to have signed the same. As to previous Contradictory Statements of Adverse Witness.]— By 28 & 29 Vict. c. 18, s. 4, if a mitness, upon cross-examination as to a former statement made by him relative to the subject-matter of the itidictment or proeeediiig, and inconsistent with his present testimony, does not distinctly admit that lie has made such statement, proof may be given that he did in fact make it ; but before such proof can be given, the circumstances of the supposed statement, sufficient to desigiiate the particular occasion, must be mentioned to the witness, and he must be ashed whether or not he has made such state- ment. And by s. 5, a witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to tlie subject- matter of the indictment or proceeding, loithout such writiiig being shewn to Mm ; but if it is intended to contradict such mitness by the writing, his attention must, before such con- 780 tradictory proof can be given, be called to those parts of the luriting lohich are to be used for the purpose of so contradicting him : provided alivays that it sliall be competent for the judge at any time during the trial, to require tU pro- duction of the writing for his inspection, and he may thereupon malie such use of it for tlie pur- poses of the trial as he may thinlifit. Eehutting Case in Seply to Substantive Evi- dence contradicting Witness. for Prosecution.]- In a trial for murder, a witness who swore he identified the prisoner as one of the persons who committed the murder, was cross-examined on behalf of the prisoner, as to an alleged conversa- tion which he had shortly after the Commission of the crime, in which he was alleged to have stated_that the prisoner was not the guilty party. The witness denied that he made such a state- ment, and the prisoner, as a substantial part of his defence, produced A. and B., who were present at the alleged conversation, to contradict the witness. At the close of the prisoner's case the prosecution were allowed to examine C. and D., who were present at the alleged conversation, to corroborate the statement of the witness and contradict A. and B. A witness, who gave evi- dence to identify the prisoner as one of the persons who committed the murder, had a con- versation with E., a police constable, shortly after the commission of the crime. B., who was examined on behalf of the prisoner, deposed that the witness stated to him that he could not recognize any of the murderers, as they were masked. On cross-examination, E. said that he had made a report to his superior officers of this statement of the witness. The crown were not allowed to examine B.'s superior officers for the purpose of contradicting him as to the fact of his having made such a report to them. Reg. v Whelan, 8 L. E., Ir. 314 ; 14 Cox, C. C. 595; Contradicting.]— The sole witness to the com- mission of an offence having sworn that she did not know the prisoner at the time, evidence was admitted for the defence that she had in fact known him for years. Ren. v. Dennis. 3 F & F. 502. Discrediting Character of Adverse Witness.] —By 28 & 29 Vict. c. 18, s. 3, in all criminal cases a party producing a witness shall not be allowed to impeach Ms credit by general evi- dence of bad character ; but lie may, in case the witness sliall, in the oxnnion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony ; but before such last-men- tioned proof can be given, the circumstances of tlie supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be ashed whether or not he has made such statement. Where in an indictment for rape a witness to whom the prosecutrix had made a statement shortly after the commission of the alleged offence, being asked on cross-examination as to the particulars of such statement gave an answer which was different from that which the prose- cuting counsel was instructed she had made: — Held, that it was competent for the counsel for the prosecution in re-examination, to ask the witness whether she had not at other times made Digitized by Microsoft® 781 CRIMINAL IjAW— Evidence. 782 a different statement, and one inconsistent with her present testimony, to certain persons named ; and also to call such persons to give evidence of the statements so made to them, under 28 & 39 Vict. c. 18, s. 3. Beg. v. Little, 15 Cox, 0. C. 319. Calling Witnesses after Close of Case.] — After the cases for the prosecution and prisoner are closed, the judge will not, at the suggestion of the counsel for the prosecution, examine a witness not before called. Meg. v. Haynes, 1 F. & F. 666. 13. Declining to Answer. At what Stage Privilege Claimed.] — It makes no difference in the right of the witness to pro- tection, that he had before answered in part, as he is entitled to claim the privilege at any stage of the inquiry ; and no answer forced from him by the presiding judge (after such a claim) can be afterwards given in evidence against him. Beg. V. Garhett, 2 C. & K. 474 ; 1 Den. C. C. 236 ; 2 Cox, C. C. 448. When Justified.] — -If a witness claims the pro- tection of the court, on the ground that his answer would tend to criminate himself, and there appears reasonable ground to believe that it would do so, he is not compellable to answer ; and if obliged to answer notwith- standing, what he says must be considered to have been obtained by compulsion, and cannot be given afterwards in evidence against him. Ih. A witness is not only not bound to answer that which will criminate him, but he is not bound to answer anything that tends to criminate him. In a prosecution for libel, a witness is not bound to answer whether he has written a particular paragraph in a newspaper, but he must answer whether he- knew whose writing it was, but he is not bound to name the person whose writing he knew it to be. Bex v. Slaney, 5 C. & P. 213. On the trial of an information for bribery at a parliamentary election, filed by the attorney- general, in pursuance of a resolution of the House of Commons, a person, alleged in the indictment to have been bribed, was called as a witness ; he refused to answer any question, on the ground that the answer would tend to criminate him. A pardon under the great seal was then handed to the witness, but he still refused to answer, upon which the judge compelled him to answer, and on his evidence the defendant was convicted : — Held, that the pardon took away the privilege of the witness so far as any risk of prosecution at the suit of the crown was concerned ; and that, though the" witness might still be liable to an impeachment by the House of Commons, not- withstanding the pardon, by reason of the 12 & 13 Will. 3, c. 2, yet that was so unlikely to happen that the witness could not be said to be in any real danger, and he was therefore rightly com- pelled to answer. Beg. v. Soyeg, 1 B. & S. 311 ; 9 Cox, C. C. 32 ; 2 F. & F. 157 ; 30 L. J., Q. B. ,301 ; 7 Jur., N. S. -1158 ; 5 L. T. 147 ; 9 W. K. 690. To entitle a witness to the privilege of not an- swering a question as tending to criminate him, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. If the fact of the witness being in danger is once made to appear, great latitude should be allowed to him in judging of the effect of any particular question. The danger«to be apprehended must be real and appreciable, with reference to the ordinary opera- tion of law, in the ordinary course of things, and not a danger of an imaginary character, having reference to some barely possible contingency. n. L. being called as a witness on the trial of a criminal information against K. was compelled to answer, notwithstanding his objection that such answer would tend to criminate him in certain actions for penalties, under the Corrupt Practices Acts, which were then pending against him : — Held, that it was immaterial to inquire whether he was or was not compelled to answer, as such issue could not affect a party in the cause. Beg. V. Kinglalte, 18 W. E. 185. Witness's Knowledge of law presumed.] — The witness's knowledge of the law enabling him to decline, to answer criminating questions must be presumed on the maxim Ignorantia juris non excusat. Beg. v. Coote, 4 L. B., P. C. 599 ; 42 L. J., M. C. 45 ; 29 L. T. Ill ; 21 W. K. 553 ; 9 Moore, P. C. C, N. S. 463. The 11 & 12 Vict. o. 42, s. 18, requiring magis- trates to caution the accused with respect to statements he may make in answer to the charge, is not applicable to witnesses asked questions tending to criminate them. lb. Counsel supporting Claim.] — If a witness objects to answer questions on the ground that they tend to criminate him, the counsel on the opposite side cannot argue in support of the. witness's objection. Rex v. Adey, 1 M. & Rob. 94. 14. Evidence to Chaeactee. Obtained in Cross-Examination — Proof of Pre- vious Conviction.] — If a prisoner's counsel elicits, by his cross-examination of the witnesses for the prosecution, a statement that the prisoner has borne a good character, evidence may be given of a previous conviction, just the same as if wit- nesses to character had been called on his behalf. Beg. V. Gadlury, 8 C. & P. 676. On a trial for a felony after a previous con- viction, if the prisoner's counsel obtains evidence of good character on cross-examination, this en- titles the prosecutor to go into evidence of the previous conviction before the jury finds a verdict on the new charge, the same as if the prisoner had obtained evidence of good character by calling a witness. Reg. v. Shrimpton, 3 C. & K. 373 ; T. & M. 628 ; 2- Den. C. C. 319 ; 5 Cox, C. C. 387 ; 21 L. J., M. C. 37. Obtained from Witnesses in ordinary Way.] — If evidence of good character is given on behalf of a prisoner, evidence of bad character may be given in reply. Reg. v. Rowton, L. & C. 520 ; 10 Cox, C. C. 25 ; 34 L. J., M. C. 57 ; 11 Jur., N, S. 325 ; 11 L. T. 745 ; 13 W. R. 436. What Evidence Admissible.] — In either case the evidence must be confined to the prisoner's general reputation .; and the individual opinion of the witness as to his disposition founded upon Digitized by Microsoft® 783 CEIMINAL 1.KW— Evidence. 784: Us own experience and observation, is inadmis- sible, lb. Evidence of particular facts cannot be given upon the question of character. lb. Evidence of character must be evidence of general reputation only, and a witness's iudivi- dua,l opinion respecting the character and dis- position of the prisoner, with reference to the charge, is inadmissible. Jb. A man was indicted for an indecent assault, and upon the trial called witnesses, who gave him a good character as a moral and well-conducted man. A witness was then called by the prosecu- tion, who was asked, " What is the prisoner's general character for decency and morality 1 " and in answer said, "I know nothing of the neighbourhood's opinion, because I was only a boy at school when I knew him ; but my own opinion, ^nd the opinion of my brothers, who were also pupils of his, is, that his character is that of a man capable of the grossest indecency and the most flagrant immorality :"— Held, that the answer was not admissible in evidence. lb. Upon an indictment for assaulting a peace oflSicer in the execution of his duty, where the assault was committed by the prisoner in resist- ing his arrest by the officer on a charge of felony, the officer cannot, upon his examination in chief, be questioned as to his knowledge of the prisoner's character for the purpose of shewing that he had reasonable cause to suspect the prisoner of having committed the felony for which he was arrested. Seg. v. Tuberjield, L. & C. 495; 10 Cox, C. C. 1; 34 L. J., M. C. 20 ; 10 Jur., N. S. 1111 ; 11 L. T. 385 ; 13 "W. R. 102. Tlie proper course under such circumstances is, to ask the officer generally whether he had reason to suspect the prisoner, leaving the prisoner's counsel to inquire into the grounds of suspicion, if he thinks fit to do so. lb. Cross-Examining Witnesses to Character.] — It is not usual to cross-examine witnesses to character except the couqsel cross-examining has some distinct charge on which to cross-examine them. Bex v. Modgkiss, 7 C. & P. 298. Time for.] — In general, witnesses to character cannot be examined after verdict and before sen- tence, where the defendant might have examined them upon the trial. Meg. v. jilullins, 3 Cox, C. C. 526. 15. Evidence to Cebdit. What Admissible.] — In order to impeach the character of a witness for veracity, witnesses may be called to prove that his general reputa- tion is such that they would not believe him upon oath. Reg. v. Brown, 1 L. E., C. C. 70 ; 36 L. J., M. C. 59 ; 16 L. T. 364 ; 15 "W. K. 795 ; 10 Cox, C. C. 453. It is not essential that witnesses, who state that they would not believe another person on his oath, should have ever heard such person give evidence upon oath ; as the real question is, whether the witnesses have such a knowledge of the person's character and conduct as enables them conscientiously to say that it is impossible to place any reliance on any statement that such person may make. Rex v. BispTiam, 4 C. & P. 392. 16. Evidence of Identity. Person against whom Bill Ignored.] — A person indicted with others for an offence, but against whom the bill has been thrown out, may, if he is in custody at the time of the trial of the others, be placed at the bar to be identified as. one who was in their company. Rex v. Doeringy 5 0. & P. 165. Form of Question.] — ^A witness, called to prove that he had seen a prisoner at a particular spot at a certain time, added that he had since seen a number of men in gaol, and had pointed out one : — Held, that the following was a proper form of question to put to the witness — " Who did you point him out as being ? " Rsg. v. Blackburn, 6 Cox, C. C. 333. It becoming necessary, on the part of the crown, to identify three other prisoners, charged in the same indictment with the -parly tried : — ■ Held, that the counsel for the prosecution might ask in the most direct terms whether any of the prisoners was the person meant by the witness. Wation's case, 2 Stark. 116. 17. Peivileged Communications. Solicitor — ^When not Eetained.] — A prisoner was in custody on a charge of forgery, and was. not allowed even to see his wife ; he wrote to a. friend " to ask Mr. Gr., or some other solicitor,, whether the punishment was the same whether- the names forged were those of real or fictitious, persons." Mr. G. was not the prisoner's attorney, though he was an attorney : — Held, that this was. not a privileged communication. Rex v. Brewer ^ 6 C. & P.. 363. The wife of A. went to B., an attorney, and produced a forged wUl to him, and asked him to. advance money to A. on the property mentioned in it. B. was not then the attorney of A., or in any way acting as his solicitor. A.'s wife left the forged will with B., who made a copy of It.. A. afterwards called on B., who told all that had occurred and returned him the forged will, de^ cUning to advance any money : — Held, that the conversation between A.'s wife and B. was not a privileged communication ; and that, on the trial of A. for forgery, evidence might be giveit of it. Reg. v. Farley, 2 C. & K. 313 ; 1 Den. C. C. 197 ; 2 Cox, C. C. 72. When Retained.] — Indictment for forg- ing the will of W. T., first, with intent to defraud' the heir-at-law of the said W. T. ; second, with, intent to defraud some person or persons un- known. Quaere, whether (under the circum- stances) a valid objection could be taken to the will being produced in evidence by an attorney^ at the trial, on the ground of its being a privileged communication. Reg. v. Tyliiey, 1 Den. C. C^ 319 ; 18 L. J., M. C. 38 ; S. C, nom. Beg. v.. Tufts, 3 Cox, C. C. 160. The solicitor of a bank is an admissible wit- ness against the directors, of transactions of which he became cognizant in that character, although any communications to or by him, as their attorney, were privileged. Beg. v. Brown. 7 Cox, C. C. 442 ; S. C, sub nom. Beg. v. Esdaile, 1 F.& F. 213. H., who was tried for forging the will of S. J.^ had sent the forged will to his attorney, Mr. M., with some deeds of S. J., ostensibly for the pur- pose of asking his advice, but really that he 2D Digitized by Microsoft® . 785 CRIMINAL 'Lk'W— Evidence. 786 might find the will and act on it. It was af ter- -wards produced by Mr. M. before the magistrates, when H. was charged before them of forging it. At the trial of H. for the forgery Mr. M. was called to produce the will, which he did, without any objection being taken. The officer of the ■court was proceeding to read it, when the prisoner's counsel objected to the reading of it, as being privileged in the hands of Mr. M. The judge directed it to be read in evidence : — Held, that it was' properly so read, it not having been put into the hands of Mr. M. in professional con- ■fidence, even if that would have made a differ- ence. Reg. V. Hayward, 2 C. & K. 234 ; 2 Cox, C. C. 23. A prisoner was indicted for forging a will. The forged instrument had been given by the prisoner to his attorney, ostensibly for profes- sional purposes, but, in the opinion of the judge, Tvith some very different object. On objection that it was a privileged communication, and therefore could not be read : — Held, invalid. Heg. V. Jones, 1 Den. C. C. 166. A., an attorney, was employed by B. as his solicitor, to put out money upon mortgage. C. applied to A. to procure him the advance of money on mortgage, and to act as his solicitor in procuring it. C. stated to A. that he was the •owner of certain freehold lands, and produced a iorged will in proof of his title, which he placed in the hands of A. B. advanced the money, A. acting as his solicitor by preparing the mortgage ■deeds : — -Held, that on the trial of C. for utter- ing the forged will, A. was bound to produce the -will and also to give evidence of what C. said to Tiim as to the advance of the money, Reg, v. Avery, 8 C. & P. 596. letter written by Solicitor for Client.] — A letter written by a solicitor for a client making •a claim for a lost parcel, alleged to contain valu- able articles, is not inadmissible on the ground ■of privilege in a criminal case. But in order to make a client criminally responsible for a letter -written by his solicitor it must be shewn that the letter was written in pursuance of the in- ■structions of the client. A letter, by a solicitor written "in consequence" of an interview with Tiis client is not equivalent to a letter written by the instructions of the client, and is not admis- sible in a criminal case against the client. Reg. -V. Downer, 14 Cox, C. C. 486 ; 43 L. T. 445 ; 45 J. P. 52. tetters written by Client to Solicitor.] — The real prosecutrix had comriiunications with her attorney in reference to certain dealings -with the prisoner. The attorney was called as a wit- ness for the prosecution :— Held, that the letters -written by the client to her attorney could not be put in by the prisoner's counsel. Reg. v. Zeverton, 11 Cox, C. C. 152. Statements made to Counsel.] — Held, that the prosecutrix and her attorney might be cross-examined in reference to any privileged ■communications as to which they had given answers to questions addressed to them by the counsel for the prosecution, but not in respect to such matters about which the attorney had Tolunteered information unasked. lb. In Presence of Prisoner.] — Held, also, that matters which transpired during interviews at which the prisoner was present were not pri- vil^ed. lb. In other Cases — The Confessional.] — ^A Roman Catholic priest, called as a witness, is bound to answer the question from whom he received the property (a watch), alleged to be stolen, although delivered to him by a party in connexion with the confessional. Reg. v. Say, 2 F. & F. 2. 18. Mode of Taking, at Teial. Before Second Jury.] — ^A prisoner for felony was tried, but the jury was discharged, owing to being unable to agree. On being put on trial before a second jury, the judge, at the prisoner's request, instead of having the witnesses ex- amined, simply called and swore them, and read over -his notes, allowing liberty to examine and cross-examine each witness thereafter : — Held, that this was an irregular practice, whether the prisoner assented to it or not. Reg. v. Bertrand, 1 L. K., P. C. 520 ; 36 L. J., P. C. 51 ; 16 L. T. 752 ; 16 W. R. 9 ; 10 Cox, C. C. 618. 19. Admissibility of Evidence. a. Evidence of other Offences. Where several Offences so Connected as to form one Transaction.] — Where several felonies are so connected together as to form part of one entire transaction, evidence of them all may be ^ven in order to prove a party indicted guilty of one. Rex V. Ellis, 6 B. & C. 145 ; 9 D. & E. 174. Upon a trial for breaking into a booking-office of a railway station, evidence was admitted that the prisoners had, on the same night, broken into three other booking-offices belonging to three other stations on the same railway, the four cases being all mixed up together. Reg. v. Cobden, 3 F. & F. 833. A prosecutor will not be permitted to give in evidence several distintt offences, involving dif- ferent transactions, under one indictment. Rex V. Toung, E. & R. C. C. 280, n. But several offences connected with each other may be so given. lb. And see Reic v. Thomas, 2 East, P. 0. 934. A prisoner was indicted for night-poaching, and it was proposed to shew that on the occasion in question one of the prosecutor's gamekeepers had lost his coat, and that it was found in the prisoner's house. There was another indictment against the prisoner for stealing the coat : — Held, that this evidence was inadimssible, unless the prosecutor consented to an acquittal on the in- dictment for the larceny. Rex v. Westwood, 4 C. &. P. 547. A. and B. when riding in a gig together, were robbed at the same time, A. of his money, B. of his watch, and violence used towards both. There was an indictment for the robbing of A. and another indictment for the robbing of B.: — Held, that on the trial of the first indictment, evidence might be given of the fact of the loss of the watch by B., and that it was found on one of the prisoners, but that no evidence ought to be given of any violence offered to B. by the robbers. Rex V. Rooney, 7 C. & P. 517. On an indictment for rape on a child under ten, evidence was admitted of subsequent per- petrations of the same offence on different days previous to complaint to the mother, it appearing Digitized by Microsoft® 787 CRIMINAL JjAW— Evidence. 788 that the prisoner had threatened the child on the first occasion ; — Held, that in such a case it was virtually one continuous ofEence. Meg. v. Rearden, 4 F. & F. 76. Neither upon an indictment for stealing nor receiving can evidence be given that the prisoner had at the time, or previously, other stolen goods in his possession. Reg. v. Oddy, T. & M. 593; 2 Den. C. C. 264 ; 5 Cox, C. C. 210 ; 20 L. J., M. C. 108 ; 15 Jur. 517. See now Si & 35 Vict. c. 112, s. 19, as to evidence of other cases on a charge of receiving. A prisoner was indicted for stealing three articles. Having taken the first article, he returned in about two minutes and took the second, and then returned in half an hour and took the third : — Held, that the last taking was a distinct felony, and could not be given in evidence with the other two ; but that the interval of time between the iirst and second taking was so short, that they must be con- sidered as parts of the same transaction. Rex v. Birdseye, 4 C. & P. 386. Z. was indicted for feloniously having in his possession a lithographic stone, on which was engraved a portion of a Dutch coupon. A second lithographic stone was found in his lodgings, in respect of which another indictment had been preferred against him : — Held, that it was com- petent for the prosecution to give evidence on the trial of the first indictment of what was on the second stone. Reg. v. Zeigert, 10 Cox, C. C, 555. A. was charged with having conspired with J. and others unknown to raise insurrections and ob- struct the laws. It was proved that A. and J. were members of a Chartist lodge, and that A. and J. were at the house of the latter' on a cer- tain day, on the evening of which A. directed the people assembled at the house of J. to go to the race-course at P., whither J. and other persons had gone : — Held, on the trial of A. that evidence was receivable that J. had at an earlier part of the day directed other persons to go to the race-course ; and it being proved that J. and an armed party of the persons assembled, went from the New Inn: — Held, that evidence might be given of what J. said at the New Inn, it being all one transaction. Reg. v. Shellard, 9- C. & P. 277. In answer to an alibi set up on a trial for felony, the prosecutor may shew the circum- stances under which the prisoner was seen near the spot in question ; though those circumstances Involve the commission of another felony by iim. • R^g. v. Briggs, 2 M. & Kob. 199. ■ When Admissible to shew Guilty Knowledge 'or Intent.] — On an indictment for forgery, if a second uttering is made the subject of a distinct indictment, it cannot be given in evidence to shew a guilty knowledge in a former uttering. Rex V. Smith, 2 C. & P. 633. It cannot be shewn on the trial of an indict- ment that the prisoner has a general disposition to commit the same kind of offience as that ■charged against him ; therefore an admission by a prisoner, charged with an infamous crime, that he had committed the same ofEence at another time, and with another person, and that he had a tendency to such practices, was rejected. Rex V. Cole, Phil. Evid. 170. In cases of receiving stolen property, see 34 & 35 Vict. c. 112, s. 19. Digitized by Microsoft® On an indictment for uttering counterfeit coin, to prove a guilty knowledge, evidence may be given of a subsequent uttering by the prisoner of counterfeit coin of a different denomination to that mentioned in the indictment. The difEerence in the denomination of the coin goes to the weight of evidence, but not to its admissi- bility. Reg. V. Forster, Dears. C. C. 456 ; 6 Cox. C. C. 521 ; 3 C. L. E. 681 ; 24 L. J., M. C. 134 ; 1 Jur., N. S. 407. On an indictment for. conspiring and unlaw- fully meeting for the purpose of exciting discon- tent and disaffeation, resolutions passed at a former meeting, in another place, and at which one of the defendants presided, the proposed object of which meeting was to fix the meeting mentioned in the indictment, are admissible to shew the intention of such defendant in assemr bling and attending the meeting in question, at which he also presided. Rex v. E^imt, 3 B. & A. 566. C. was indicted iu four counts for obtaining money by false pretences. It was shewn that he had inserted an advertisement in a news- paper containing statements found to be false, an address and " Trial Paper and Instructions, Is." Six envelopes were found in his possession, each directed to the address given and containing an answer to the advertisement aid twelve postage stamps. Two hundred and eighty-one other letters were produced by a post-ofiice clerk which had been stopped by the postal autho- rities. Each letter contained twelve stamps, but no proof was adduced that they were written by the persons from whom they purported to come : — Held, that they were receivable in evi- dence. Reg. V. Cooper, 1 Q. B, D. 19 ; 45 L. J., M. C. 15 ; 33 L. T. 754 ; 24 W. K. 279 ; 13 Cox, C. C. 123. See also Reg. v. Stenson, 12 Cox, C. C. llli; 25 L. T. 666. On an indictment for an assault with intent to commit a rape, evidence that the prisoner on a previous occasion had taken liberties with the prosecutrix is not receivable to shew the prisoner's intent. Rex v. Lloyd, 7 C. & P. 318. On an indictment for administering sulphuric acid to eight horses, with intent to kill them, the prosecutor may give evidence of adminis- tering at different times to shew the intent. Bex V. Mogg, 4 C. & P. 363. If persons who formed part of a mob obtain money from a person by advising him to give money to the mob, and are indicted for this as a robbery, the prosecutor, to shew that this was not bona fide advice, may give evidence of demands of money made by the same mob at other places, before or afterwards in the course of the same day, if any of the prisoners were present on those occasions. Rex v. Winhworth, 4 C. & P. 441. On the trial of an indictment for threatening to accuse the prosecutor of an infamous crime with intent to extort money, it was proved that the prisoner had gone up to the prosecutor and said to him, " If you do not give me a sovereign, I will ' charge you with an indecent assault : " — Held, that inasmuch as, if the jury believed that such language had been used by the prisoner, the intent was manifest, evidence for the prosecution tending to shew that the prisoner had made a simUar charge two years before ought not to be admitted. Reg. v. McDonnell, 5 Cox, C. C. 153. On the trial of an indictment for accusing a 2 D 2 789 CRIMINAL IjA.'W— Evidence. 790 person of an unnatural crime with intent to extort money — the prisoner being a soldier, and the accusation having been made while he was on duty as sentry — evidence of declarations made by him on a former occasion, on coming off guard, that he had obtained money from a gentleman by threatening to take Mm to the guard-house and accuse him of an unnatural crime, is admissible. Meg. v. Cooper, 3 Cox, C. C, 5i7. Where a prisoner was indicted in one count for stealing coal from the mine of H. J. G., and in the same count for stealing from the mines of thirty other proprietors, and it appeared that all the coal so alleged to have been stolen, had been raised at one shaft ; — Held, that proof of such charges might be relied on, in order to shew a felonious intent. Meg. v. Bleasdale, 2 C. & K. 765. On an indictment for endeavouring to obtain an advance from a pawnbroker upon a ring by the false pretence that it was a diamond ring, evidence was admitted that two days before the transaction in question the prisoner had obtained an advance from a pawnbroker upon a chain which he represented to be a gold chain, but which was not so, and endeavoured to obtain from other pawnbrokers advances upon a ring which he represented to be a diamond ring, but which in the opinion of the witnesses was not so. This ring was not produced : — Held, that the evidence was properly admitted. Meg. v. Francis, 2 L. R., C. C. 128 ; 43 L. J., M. G. 97 ; 80 L. T. 503 ; 22 W. R. 663 ; 12 Cox, C. C. 612. A. was indicted for obtaining a specific sum of money from B. by false pretences. He was em- ployed by his master to take orders, but not to receive moneys, and he was proved to have ob- tained the specific sum from B. by representing that he was authorized by his master to receive it. Evidence of his having, within a week after- wards, obtained another sum from another per- son by a similar false pretence, such obtaining not being mentioned in the indictment in any way, is not admissible for the purpose of proving the intent when he committed the acts charged in the indictment. Meg. v. Molt, Bell, C. C. 280 ; 8 Cox, C. C. 411 ; 30 L. J., M. C. 11 ; 6 Jur., N. S. 1121 ; 3 L. T. 310 ; 9 W. E. 74. To shew that Act not done Accidentally or hy Mistake.] — Evidence of another felony is ad missible to shew the animus of the prisoner, or if the act done was wilful or accidental. A. was indicted for setting fire to a rick on the 29th of March by discharging a gun close to it. Evi- dence was admitted of his having been seen near the same rick with a gun on the 28th, when it had been also set on fire. Meg. v. Dosseit, 2 C. & K. 306 ; 2 Cox, C. C 243. Under an indictment for arson, where the prisoner is charged with wilfully setting fire to her master's house, the previous and abortive attempts to set fire to different portions of the same premises, are admissible, though there is no evidence to connect the prisoner with any of them. Meg. v. Bailey, 2 Cox, C. C. 311. Upon an indictment for arson it is not com- petent for the prosecutor to shew that other fires, of which notice was given by the prisoner, were of a similar nature to the one in question, and different from those of which notice was given by other parties. Meg. v. Megan, 4 Cox, C. C. 335. Upon a trial for arson with intent to defraud an insurance company, evidence that the prisoner had made claims on two other insurance com- panies in respect of fires which had occurred previously, and in succession, was admitted for the purpose of shewing -that the fire which formed the subject of the trial was the result of design and not of accident. Meg. v. ffray, 4 F. & F. 1102. On a charge of arson (the case turning on identity) evidence was rejected that, a few days previously to the fire, another building of the prosecutor was found on fire, and the prisoner was seen standing by, with a demeanor which shewed indiEEcrence or gratification. Meg. v. Harris, iF. &F.j?42. Upon a trial for felony, other felonies, which have a tendency to establish the scienter, may be given in evidence for that purpose. Meg. v. Weelis, L. & C. 18. On an indictment for arson in setting fire to a rick, the property of A., evidence may be given of the prisoner's presence and demeanour at fires of other ricks, the property respectively of B. and C, occurring the same night, although those fires are the subject of other indictments against the pri- soner, such evidence being important to explain his movements and general conduct before and after the fire of A.'s rick ; but evidence is not admissible of threats, statements or particular acts pointing alone to the other indictments, and not tending to implicate or explain the conduct of the prisoner in reference to that fire. Meg. v. Taylor, 5 Cox, C. C. 136. An indictment charged ' the prisoner with having embezzled three sums of 211., the moneys of his employers, he being a clerk or servant. Evidence was given of the embezzlement of these sums, and it was then proposed to give evidence of other sums not charged in the indictment, but which had also been embezzled, to shew that if it should be contended that the sums charged in the indictment were subjects of a mistake in keeping the accounts, there being many other sums unaccounted for, admitting evidence of such sums would assist the jury in determining what value was to be attached to the suggestion : — Held, that such evidence was admissible. Meg. Y. Miehardson, 8 Cox, C. C. 448 ; 2 F. & F. 343. A member of a friendly society was employed to receive weekly payments made by other members, and appropriated certain sums thus paid. Upon the trial, the books of the society were tendered generally in evidence, and received, although it was objected that the evidence ought to be confined to the entries forming the subject of the indictment : — Held, that they were rightly admitted. Meg. v. Proud, L. & 0. 97 ; 9 Cox, C. C. 22 ; 31 L. J., M. C. 71 ; 8 Jur., N. S. 142 ; 5 L. T. 331 ; 10 W. E. 62. To negative Accident in Cases of Murder by Poisoning.] — See ante, Muedee. b. In other Cases. When Evidence shews another Felony.] — Although evidence offered in support of an in- dictment for felony may be proof of another felony, that circumstance does not render it inadmissible, if the evidence is otherwise receiv- Digitized by Microsoft® 791 CRIMINAL luAM— Evidence. 792 . V. Bossett, 2 C. & K. 306 ; 2 Cox, able. Il^ 0. C. 243 It is no objection to evidence on an indictment lor felony, that it also, goes to shew the prisoner guUty of another felony. Rex v. Moore, 2 C. & X. 235. Infancy, how Proved.] — On an indictment against a defendant for obtaining goods by falsely pretending that he was of full age, a plea of infancy m an action brought against him is not admissible for the purpose of proving that he was a minor. Beg. v. Simmonds, i Cox, C. C 277. Rehntting Evidence of Prosecution hy Letters not Proved to have been Beceived by them.]— A schoolmaster was charged with indecently as- saulting a female pupil. Letters relating to the charge written by one of the scholara who was examined as a witness for the prosecution, may, on her denial of the handwriting, be proved and given in evidence on the part of the defendant for the purpose of affecting the witness's credit, and shewing the capacity of the scholars to con- spire to make a false charge against him, although the prosecutrix is not proved to have received the letters, or had any knowledge of their con- tents. JReg. V. Me Gavaran, 6 Cox, C. C. 64. When Letters found upon Prisoner or in his Possession.] — On a charge of conspiring to murder, after it had been proved that the grenades by which the death in question had been caused had been ordered by A., but when there was no evidence to connect A. with the prisoner, it was proved that a letter in A.'s hand- writing, bearing a memorandum in the tand of the prisoner, was found at his residence after his arrest upon the present charge : — Held, that such letter was admissible against him, not upon the ground that A. was a co-conspirator, but upon the ground that it was found in the possession of the prisoner, and was relevant to the inquiry. Beg. V. Bernard, 1 F. & F. 240. On an indictment for forging a bank note, a letter purporting to come from the prisoner's brother, and left by the postman pursuant to its direction, at the prisoner's lodgings, after he was apprehended and during his confinement, but never actually in his custody, cannot be read in evidence against him on his trial. Rex v. Huet, 2 Leach, C. C. 820. On an indictment for a conspiracy, the letters of one of the defendants to the other are, under certain circumstances, admissible in evidence in his favour, to shew that he was the dupe of the other, and was not himself a participator in the fraud. Bex y. Whitehead, 1 C. & P. 67. A prisoner was taken into custody at the house of his brother on a charge of abduction ; when he was taken, a letter was found in a writing desk in the room in which he and his brother were. The letter was directed to a person in the neighbourhood of the prisoner's late residence. The police officer was going to open it, when the prisoner told him it had nothing to do with the business that he had come about : — Held, that the letter was receivable in evidence on the trial of the prisoner for the abduction. Beg. v. Bar- ratt, 9 C. & P. 887. In a case of forging and uttering a forged bill, a letter vmtten by the prisoner to a third person, saying that such person's name is on another bill, and desiring him not to say that that bill is a forgery, is receivable in evidence to shew guilty knowledge. Rex v. Forbes, 7 C. & P. 224. Though a letter found u{)on a prisoner may be read, it is no evidence of the facts it states ; they must be proved by other evidence. Bex v. Plumer, E. & E. C. C. 264. Letters which have never been in the custody of a prisoner, or any way adopted by him (being intercepted at the post-office), although directed to him, cannot be read in evidence against him. Rex V. Bemy, 1 Leach, C. C. 232, 285. Document partly in Prisoner's Writing found in Box not Proved to Belong to Prisoner.] — In a portmanteau not proved to belong to a prisoner ou trial was found a paper folded like a letter, and containing in the inside what purported to be an inventory of goods pawned at different times. The inventory was not in his hand- writing ; but on the outside of the paper his name, and the word " private," both in his hand- writing, were indorsed : — Held, that the contents of the paper were not admissible against him. Reg. V. Hare, 3 Cox, C. C. 247. Card of Prosecutor to Prove his Name.] — Where an indictment charged that a person shot at one Harvey Garnett Phipps Tuckett : — Held, that Tuckett's card, though given to one of the witnesses in the presence of the party charged, could not be given in evidence against him on the trial to prove the name, as its contents were not shewn to have been communicated to him. Reg. V. Douglas, Car. & M. 193. Evidence of Ees gestae.] — The false denial of the husband by the wife, though not directly proved to have been by his authority, or in his hearing, to custom-house officers, coming to his house to search for uncustomed goods imme- diately after discovered by them ou his premises, is admissible, as a part of the res gestse, on the trial of ah information for penalties against the husband, for possessing the goods with a guilty knowledge. Att.-Gen. v. Good, M'Clel. & Y. 286. See also ante, Muedke and Eapb. 20. Documents. Admissibility — Unstamped Documents. ]^0n an indictment for forging a bill of exchange, the bill may be given in evidence although it is not stamped. Rex v. Sawkeswood, 1 Leach, C. C. 257 ; 2 East, P. C. 955 ; 2 T. E. 606, n. ; S. P., Rex V. Morton, 2 East, P. C. 955 ; 1 Leach, C. C. 259, 11. 0. was indicted for embezzlement, and for the purpose of proving his identity as the person re- ceiving certain things from S. & Co. for the pro- secutor, an entry in a book of S. & Co. was read in evidence. The account was kept in four columns, in the first of which were entered the dates ; in the second the name of the person on whose behalf the money was received ; in the third the. signature of the person receiving ; .and in the fourth the amount of the particular pay- ment made by S. & Co. : — Held, that the entiy, as explained by the evidence, amounted to a receipt ; and that even for the purpose of proving identity, the whole entry could not be Digitized by Microsoft® 793 CEIMINAL -LA^— Evidence. 794 read without a stamp, and that therefore the conviction was wrong. Meg. v. Overton, Dears. C. C. 308 ; 6 Cox, C. C. 277 ; 23 L. J., M. C. 29 ; 18 Jur. 134. In the com-se of proving a conspiracy to defraud, carried into effect by prevailing upon the prosecutor to accept hills, a warrant of attorney, given to him for the purpose of inducing him to accept, reciting the acceptance, may be given in evidence, though unstamped. Reg. V. Gompertz, 9 Q. B. 824 ; 16 L. J., Q. B. 121 ; 11 Jur. 204. Now by 33 & 34 Vict. c. 97, s. 17, any docu- ment may ie given in evidence in oritninal pro- ceedings, though not properly stamped. Notice to Produce — When to be Given.] — On an indictment against A. and B. for burglary one of the articles stolen was a ring, which was described particularly by the' prosecutor and proved to have had an inscription upon it, and to have been just like one he produced ; one of the prisoners being proved to have shewn, soon after the burglary, a ring which in the opinion of the witnesses was just like the one produced and had an inscription upon it, but of which no notice to produce had been given : — Held, that the contents of the inscription on the pro- secutor's ring could ,not be proved, and that as there had been no notice given to the prisoner to produce the ring shewn by him to the witness, the contents of the inscription upon it could not be proved. Beg. v. Farr, 4 F. & F. 396. A solicitor was indicted for perjury in having sworn that there was no draft of a certain statutory declaration made by a client. No notice to produce this draft had been given to the solicitor, and upon his trial it was proved to have been last seen in his possession. Secondary evidence having been given of its contents : — Held, that in the absence of such notice, secondary evidence was inadmissible. Meg. v. Mworthy, 1 L. K., C. C. 103 ; 37 L. J., M. C. 3 ; 17 L. T. 293 ; 16 W. K. 207 ; 10 Cox, C. C. 579. Where the witness, swearing to the words spoken by way of oath by the prisoner when he administered the same, said that he held a paper in his hand at the same time when he administered the oath, from which it was sup- posed that he read the words ; yet held that parol evidence of what he in fact said, was suf- ficient without giving him notice to produce the paper. Mesc v. Moore, 6 East, 419. On an indictment for arson on the prosecution of an insurance company, their books are not evidence of the insurance without notice to pro- duce the policy. Bex v. Doran, 1 Esp. 127. A landowner by deed granted the right of shooting to G. over land of which B. afterwards became occupier. Upon an information against B. for entering and being in the daytime upon land in search of game, G. deposed that he had the exclusive right of shooting over the same, and that he had given no authority to B. to shoot ; the deed was not put in evidence : — Held, that the conviction, unsupported by the production of the deed, was wrong. Barher V. DwcU, 34 L. J., M. C. 140 ; 11 Jur., N. S. 651. Where, there has been a written agreement between master and servant, in which the nature of the service is defined, on an indictment for embezzlement against the latter, parol evidence of the service is not admissible ; unless notice has been given to produce the agi'eement. Meg. V. Clapton, 3 Cox, C. C. 126. Upon an indictment for arson with intent to defraud an insurance company, the nature of the proceedings does not give notice to the prisoner to produce the policy, so as to dispense with actual notice to produce it. Beg. v. KUson, Dears. C. C. 187 ; 6 Cox, C. 0. 159 ; 22 L. J., M. C. 118 ; 17 Jur. 422. ■ In order to prove the service of the copy of an order of sessions, a witness was called, who stated, that the order' having been dra-wn up from the minutes of the sessions on paper, and signed ■by the clerk of the peace, was road over by him to each of the defendants, whom he at the same time served with a true copy of it : — Held, suf- ficient ; and that it was not necessary to give notice to produce the copy served in order to let in such evidence. Meg. v. Mortloelt, 7 Q. B, 459 ; 2 New Sess. Gas. 108 ; 14 L. J., M. C. 153 ; 9 Jur. 621. An indictment alleged that the prisoner, being in the employ of the Post-office, stole a post- letter, to wit, a post-letter directed and addressed as follows, that is to say (setting out the ad- dress), which contained property. At the trial, a witness having deposed that he employed a man to post a letter containing the property in question : — Held, that he might be asked how that letter was addressed, although no notice to produce the letter had been given. Meg. v. Clule, 3 Jur., N. S. 698. On Postponement of Trial.] — Where a trial has been postponed from one session to another, a notice to produce served on the prisoner in time for the first session is available for the sub- sequent one without any fresh service, and service on the prisoner in gaol is sufficient. Beg. V. Bobinson, 5 Cox, C. C. 183. Length of Time before Trial.] — If a, forged deed is in the possession of a pri- soner, who is indicted for forging it, the prosecutor is not entitled to give secondary evidence of its contents, unless he has, a reason^ able time before the commencement of the assizes, given the prisoner notice to produce it. A notice given to the prisoner during the assizes is too late. Bex v. Hawoi-th, 4 C. & P. 254. A prisoner tried at the assizes for arson, on Wednesday, the 20th of March, was on Monday, the 18th, served at the prison with a notice to produce a policy of insurance. The commission day ■was Friday, the 15th, and the prisoner's home was ten miles from the assize town : — Held, that the notice was served too late. Mex v. JUllieombe, 5 C. & P. 522 ; 1 M. & Rob. 260. Notice to produce policies of insurance, served on the prisoner's attoi'ney on Tuesday evening, the prisoner then being in Maidstone and the policies twenty miles off, is sufficient when the trial takes place on Thursday. Meg. v. Marker, 1 F. & F. 326. Where notice to produce a policy of insurance was given to the prisoner in the middle of the day preceding the trial, the prisoner's residence being thirty miles from the assize town : — Held, that secondary evidence of the policy could not be given. Meg. v. Kitson, Dears. C. C. 187 ; 6 Cox, C. C. 159 ; 22 L. J., M. C. 118 ; 17 Jur. 122. Service on whom.] — Service of notice to Digitized by Microsoft® 795 CEIMINAL J.AyR— Evidence. ^^ttV?-^'^, attorney who had served a notice on behalf of the prisoner, as to an application to ^il him upon the charge, is sufficient. Eeq. y. ±loucher, 1 F. & F. 486. A notice to produce a document delivered to an attorney, suggested to be the prisoner's attorney, IS (m the absence of evidence that he was so) not a valid notice, so as to enable secondary evidence to be given ; and the attorney was not allowed to be asked whether he had shewn the notice to nis client. Meg. v. Downham, 1 F. & F. 386. Secondary Evidence — When Admissible.] — When a false pretence is contained in a letter which is lost, the prisoner may be convicted, if parol evidence is given of the contents of the letter. Hex v. Chadwich, 6 C. & P. 181. "Where perjury is assigned upon a written in- strument, subsequently lost, secondary evidence is admissible. Reg. v. Milnes, 2 F. & F. 10. If a prisoner has said that he has destroyed a deed which he is charged with forging, no notice to produce it will be necessary. Mea; v. Haworth, 4 C. & P. 254. Where perjury is alleged as having been com- mitted before justices at petty sessions on the hearing of a, charge contained in a written information, that information must be pro- duced, or its loss or destruction proved, before secondary evidence of its contents can be given on the trial of an indictment for perjury. Req. ■ V. JOillo-n, 14 Cox, C. C. 4. On an indictment for uttering a forged deed, it appeared that the deed alleged to have been forged was produced in evidence by the prisoner's attorney on the trial of an eject- ment, in which the prisoner was lessor of the plaintifE ; and that after the trial it was returned to the prisoner's attorney : — Held, that if the prisoner did not produce the deed, he having had notice to produce it, secondary evidence might be given of its contents, without calling his attorney to prove what he had done with the deed. Rex v. Hunter, 4 C. & P. 128. If, as secondary evidence of the contents of a deed, the draft is given in evidence, and, in the draft, words are abbreviated which in the setting out of the deed in the indictment are put in words at length, it will be for the jury to say whether they think that the words abbreviated in the draft were inserted at length in the deed itself. li. On an indictment for the larceny of a bill of exchange, obtained from the prosecutor, under a pretence of discounting it, parol evidence of the bill may be given after proof of a subpoena duces tecum given to the person in whose posses- sion it was shewn to be previously to the trial, but who did not attend. Rex v. Aioldes, 1 Leach, C. C. 294 ; 2 Bast, P. C. 675. Maps and Flans — Form of.] — A map or a plan prepared for the purpose of a trial ought not to contain any reference to transactions and occur- rences which are the subject-matter of the inves- tigation before the court, and not existing when the survey was made ; and if it does, and the objection is taken, the court will not allow the jury to look at it. Reg. v. Mitchell, 6 Cox, 0. C. 82. Proof of Civil Proceedings.] — On the trial of an indictment alleging perjury upon the hearing 795 of a civil action, the production of a copy of the writ and pleadings from the record and yrnt clerk's office is evidence that an action was pend- ing. Reg. V. Scott, 2 Q. B. D. 415 ; 46 L. J., M. C. 259 ; 36 L. T. 476 ; 25 W. K. 697 ; 13 Cox,. C. C. 594. Eefreshing Memory of Witnesses,] — Tke prisoner "was a timekeeper, and C. was pay clerk^ in the employment of a colliery company. It was the duty of the prisoner every fortnight to. give a list of the days worked by the workmeu. to a clerk who entered the days and the wages, due in respect of them in a time book. At pay time it was the duty of the prisoner to read out from the time book the number of days worked by each workman to C, who paid the wages, accordingly. And C. saw the entries in the time book while the prisoner was reading them out. Dpon the trial of an indictment charging the prisoner with obtaining money by false pre- tences : — Held, that C. might refresh his memory by referring to the entries in the time book in order to prove the sums paid by him to workmen. Reg. V. Langton, 2 Q. B. D. 296 ; 46 L. J., M. C. 136 ; 35 L. T. 527 ; 13 Cox, C. C. 345. Bankruptcy — Notices in the London Gazette — Cuttings from the Gazette.]— A petition in bank- ruptcy having been presented against the pri- soner in the D. County Court, the court made an order that the publication of a notice of the petition in the London Gazette should be deemed service of the petition on the prisoiier. The prisoner did not appear according to this notice, and there was no evidence that it had come to his knowledge. The prisoner was adjudicated bankrupt in his absence, and divers proceedings in the bankruptcy took place. Subsequently thereto the prisoner was arrested, and afterwards examined in court touching his affairs by the trustee in the bankruptcy, and the result was that he was indicted and convicted for various offences under the Bankruptcy Act. On the trial, in proof of the publication of the order of the county court in the Gazette, the file of the proceedings in the Bankruptcy Court was pro- duced, containing a cutting from the Gazette of the advertisement of the order of the county court and notice to appear : — Held, that this cutting from the Gazette was improperly received as evidence of the publication of the notice in the London Gazette, and that the conviction could not be sustained. Reg. v. Lowe, 15 Cox, C. C. 286 ; 52 L. J., M. C. 122 ; 48 L. T. 768 ; 47 J. P. 535. Proof of Handwriting — By whom.] — A prisoner's handwriting may be proved by wit- nesses who have seen him write. • Rex v. Sensey, 2 Ld. Ken. 366 ; 1 Burr. 642. A person who has received letters purporting to come from a party, and has acted on those letters, may prove the handwriting of such party. Rex V. Slaney, 5 C. & P. 213. A policeman who has only once seen a prisoner write, and that since suspicion has been excited against him with reference to the charge upon which he is tried, and upon an opportunity taken by the policeman with the view of being able to speak to his handwriting, is not an admissible witness to prove that a document, the foundation of the charge against a prisoner, is in his hand- writing. Reg. V. Crouch 4 Cox, 0. C. 163. Digitized by Microsoft® 797 CRIMINAL LAW— Evidence. 798 Comparison.]— By 28 & 29 Vict. c. 18, s. 8, in all criminal cases, comparison of a disputed writing with any loriting, proved to the satis- faction of the judge to be genudne, sluill he per- mitted to he made by witnesses ; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evi- 4ence of the genuineness or otherwise of the writing in dispute. Proof of Documents by Attesting Witness.] — By 28 & 29 Vict. c. 18, s. 7, in all criminal cases it shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is 7wt requisite, and such instrument may be proved as if there had been no attesting witness thereto, letter of Instruction from lords of Treasury.] — A letter of instruction from the lords of the Treasury, signed by three lords of the Treasury, is admissible upon proof of the handwriting of the three persons whose names were subscribed to it, without producing the commission. Rex v. Jones, 2 Camp. 131. That Indictment Found.] — An allegation in an indictment, "that at the general quarter sessions of the peace holden at U., in and for the county of M., on Monday, the 10th of July, 1826, hefore certain of his majesty's justices of the peace assigned, &c., a certain bill of indictment against S. H. G-. was duly preferred and found," is only proved by a regular record of the indict- ment and caption ; and an examined copy of the mere indictment without any caption, together with the minute-book of the sessions, produced by the deputy clerk of the peace, and from which he reads entries in his own handwriting shewing the time and place of holding the sessions, is not sufficient, although no record has in fact been drawn up. Rex v. Smith, 8 B. & C. 341. Frcduction and Inspection, when Ordered.] — On an indictment in the Central Criminal Court, for obtaining money by a false pretence, that a parcel contained certain letters of the prosecutrix to the prisoner, which he had promised, for a valuable consideration, to give up, and which had been seized under a search warrant, a judge on the rota for the session, after the session had opened, made an order in favour of the prisoner for an inspection of the letters. Reg. v. Coined, 3 F. & F. 103. Privilege of Solicitor.] — A solicitor for a prisoner is bound to produce a document, when the prisoner is charged with an offence in respect of such document. Reg, v. Brown, 9 Cox, C. C. 281. See cases ante, col. 784. letters — Proof by Post-marks.] — The post- oiiice marks, in town or country, proved to be such, are evidence that the letters on which they are were in the office to which those marks belong at the time those marks specify. Rex v. Plumer, E. & B. C. C. 264. Beading at Trial.] — If a letter, written by one of several prisoners, is read in evidence, and in this letter the names of the other prisoners are mentioned, these names must not be omitted in the reading of the letter, but the judge will tell the jury to pay no attention to the letter, except so far as it affects the writer. Rex v. Fletcher, 4 C. & P. 250. 21. Pbevious Convictions, Eecokds, and judgmknts. Proof of.] — By the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. 18, a previous con- viction may he proved in any legal proceeding whatever against any person by producing a record or extract of such conviction, and by giving proof of the identity of the person against whom the conviction is sought to be proved with the person appearing in the record or extract of conviction to have teen convicted : A record or extract of a conviction shall, in tht case of an indictable offence, consist of a certificate containing the substance and effect only {omitting the formal part of the indict- ment and conviction), and purporting to be signed by the clerk of the court, or otlier officer liaving the custody of tlie records of the court hy which such conviction was made, or purporting to be signed by the deputy of such clerh or officer; and in the case of a summary conviction, shall consist of a copy of such conviction, purporting to be signed hy any justice of the peace having jurisdiction over the offence in respect of which such conviction was made, or to he signed hy the proper officer of the court hy which such con- viction was made, or hy the clerh or other officer of any court to which such conviction has been returned : A record or extract of any conviction made in pursuance of this section shall be admissible in evidence without proof of the signature or official character of the person appearing to have signed the same : A previous conviction in any one part of the United Kingdom may he proved against a pri- soner in any other part of the United Kingdom ; a/nd a conviction before the passing of this act sliall he admissible in the same manner as if it liad tahen place after the passing thereof: A fee not exceeding five shillings may he charged for a record of a conviction given in pursuance of this section : The mode of proving a previous conviction;^ OMthorizcd ^y this section shall he in addition to and not in exclusion of any other authorited mode of proving such conviction. By 14 & 15 Vict. c. 99, s. 13, whenever in any proceeding whatever it may he necessary to prove the trial and conviction or acquittal of any persofi charged with any indictable offence, it shall not be necessa/ry to produce the record of tlie conviction or acquittal of such person, ur a copy ijiereof, but it shall be sufficient that it he certified or purport to he certified under the hand of tJie clerh of (he court or otlier officer having the custody of the records of the court where such conviction or acquittal tooh place, or by the deputy of such clerh or other officer,, tliat the paper produced is a copy of the record of tlie indictment, trial, conviction and judgment or acquittal, as the case may be, omitting formal parts thereof. The 14 & 15 Vict. c. 99, s. 13, which allows a criminal record to be proved by a certificate of the officer having custody of the record omitting the formal parts, applies to proof in civil as well as in criminal proceedings. Richardson v. Willis, Digitized by Microsoft® 799 CRIMINAL LAW— Verdict. 800 If a plaintiff, in an action for a malicious pro- secution offers to prove at the trial the original record of the indictment and acquittal, or a true copy thereof, such evidence must be received, though there was no order of the court, or fiat of the attorney-general, allowing the plaintiff a copy of such record ; but the officer, who with- out such authority produces the record, or eives a copy of It to the party, is answerable for the contempt of court in so doing ; and the judge at msi pnus will not compel him to produce the record in evidence, without such authority. Zegatt v. ToUeney, li East, 303. Where a party suing for a malicious prosecu- tion had obtained a copy of the indictment by virtue of the attorney-general's fiat, granted under a mis-statement as to the view entertained by the judge before whom the indictment was tried, the court refused to stay the proceedings, or to pre- vent the plaintiff from using on the trial the copy so obtained. Browne v. Cumminqs, 5 M. & B. 118 ; 10 B. & C. 70. ^ On an indictment on the prosecution of a pri- vate individual for keeping a common gaming- house, the solicitor of the treasury was allowed to have a new record of nisi prius engrossed, and the postea and verdict indorsed from the judge's notes, on an affidavit that the postea could not be found, and that the solicitor of the treasury was instructed by the secretary of state to asli for the judgment of the court. Rex v. Old field, 3 B. & Ad. 659, n. The proper proof that a prisoner was in lawful custody, under a sentence of imprisonment passed at the assizes, is, by the proof of the record of his conviction ; and neither the production of the calendar of the sentences signed by the clerk of the assize, and by him delivered to the governor of the prison, nor the evidence of a .person who heard sentence passed, is sufficient for this pur- pose. Beg. V. Boiwdon, 2 C. cfc K. 366. Of Conviction and Identity.] — ^A previous summary conviction, which, under 14 & 15 Vict c. 99, s. 13, is required to be proved by a certified copy, also requires proof of the prisoner's iden- tity as under 7 & 8 Geo. 4, c. 28, s. 11, which - remains in this respect as it stood before. The identity may be proved by evidence from which a jury may draw the conclusion that he is the same person named in the certificate, although no witness saw him convicted at his trial. S,eg. V. Leng, 1 F. & F. 77. ■ Identity, how Proved.] — In order to prove the identity of a prisoner who is named in a certificate of a previous conviction, it is not necessary to call a witness who was present at the trial to which the certificate relates ; it is sufficient to prove that the prisoner is the person who underwent the sentence mentioned in the certificate. Reg. v. CrofU, 9 C. & P. 219. It is sufficient evidence of a previous summary conviction, to shew .that the certificate of con- viction and the warrant agi-ee, and that the prisoner was received into custody under the warrant, without further proving identity. Reg. V. Levy, 8 Cox, C. C. 73. Certificate, when Admissible.] — A cer- tificate of a conviction, made at the quarter sessions for a borough, purporting to be signed by a person described therein as deputy clerk of the peace of the borough, and having the custody of the records of the quarter sessions, is admis- sible in evidence, as purporting to be made by an officer having the custody of the records of the court where the conviction was made, within 5 Geo. 4, c. 84, s. 24, although the 5 & 6 Will. 4, c. 76, gave no power to appoint a deputy clerk of the peace for a borough within that act. Reg. V. Parsons, 1 L. E., C. C. 24 ; 35 L. J., M. C. 167 ; 12 Jur., N. S. 436 ; 14 L. T. 450 ; 14 W. K. 662. A person de facto filling an office, carrying with it the custody of the records of the court, may lawfully give such a certificate, although he may not hold such office de jure. lb. Indictment — Form of.] — It is no objection to an indictment that a previous conviction is stated at the beginning of it, by way of introductory averment, instead of at the end, in the form of a separate count. Reg. v. Hilton, Bell, C. C. 20 ; 8 Cox, C. C. 87 ; 28 L. J., M. C. 28 ; 5 Jur., N. S. 47 ; 7 W. R. 59. Arraignment on.] — If, to prevent preju- dice, the prisoner, at the request of his counsel, has not been arraigned on the charge of the previous conviction before the verdict has been given on the subsequent charge, he may afterwards be arraigned thereon, and the jury may afterwards inquire respecting it. li. Mode of Conducting Case.] — On a, trial for felony after a previous conviction the prisoner is to be arraigned on the whole indictment, and the jury is to have the new charge only stated to them, and if no evidence to character is given, nothing is to be said to the jury of the previous conviction till they have given their verdict on the new charge, and then, without being re- sworn, the jury is to hear the statement of the previous conviction, and the proof of it. Reg. v. Slmttleworth, 3 C. & K. 375 ; T. & M. 626 ; 2 Den. C. C. 351 ; 5 Cox, C. C. 369 ; 21 L. J., M. C. 36 ; 15 Jur. 1066. C., with others, was charged in the first count of an indictment with larceny from the person. The indictment contained two other counts, each charging a previous conviction against C. : — Held, that any number of previous convictions may be alleged in the same indictment, and, if necessary, proved against the prisoner. Reg. v. Clarh, Dears. C. C. 198 ; 3 C. & K. 367 ; 6 Cox, C. G. 210 ; 22 L. J., M. 0. 135 ; 17 Jur. 582. Proof of Previous Conviction of Witness Ad- missible, though Immaterial to Issue.] — A party to a cause who gives evidence in support of his case may be cross-examined as to whether he has been ever convicted of a felony or misdemeanor, and if he denies or refuses to answer it, the oppo- site party may prove such conviction under s. 25 of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), although the fact of such con- viction be altogether irrelevant to the matter in issue in the cause. Ward v. Sinjield, 49 L. J., C. P. 696 ; 43 L. T. 252. VII. VERDICT. Vacating after being Becorded.] — Though a verdict is recorded, yet if it appears promptly, Digitized by Microsoft® 801 CEIMINAL 1.AW— New Trial. 802 that it is not according to the intention of the jury, it may be vacated and set right. Hex v. ParUn, 1 M. C. C. 45. Power of Court to enter for Defendant.] — Where a misdemeanor is tried in the Queen's Bench Division, and a verdict of guilty has been found, the court has power on motion to enter a verdict for the defendant. Reg, v. Platts, 28 W. E. 915. Validity — Good Pindlng on bad Count and Vice Vers^.] — A good finding on a bad count in an indictment, and a bad finding on a good count, stand on the same footing ; both being nullities. O'Connell v. Beg. {in error'), 11 C. & T. 155 ; 9 Jut. 25. Different Counts.] — A verdict of not guilty can be entered on one count, and of guilty on another. Meg. v. Oraddoch, 14 Jur. 1031. Where a count contains only one charge against several defendants, the jury cannot find any one of the defendants guilty of more than one charge. O'Connell v. Seg. (in error), 11 CI. & P. 155 ; 9 Jur. 25. Becommendation to. Mercy,] — A jury re- turned a verdict of guilty on an indictment, but recommended the defendant to mercy on the ground that perhaps he did not know that he was acting contrary to law : — Held, that the conviction was not invalidated by this addition to the verdict. Reg. v. Crawshaw, Bell, C. C. 303 ; 8 Cox, C. C. 375 ; 9 W. E. 38. Befusal to Eeceive.] — Indictment for murder. Defence that deceased committed suicide. Verdict guilty, the jury adding that they believed the act was committed without premeditation. The judge refused to receive such a verdict, and directed the jury to say guilty or not guilty. Reg. V. Moloney, 9 Cox, G. C. 6. Effect of Abandonment of Counts.] — ^A first count charged the prisoners under 9 Geo. 4, c. 69, s. 2, with being found on land at night armed vrith a gun for the purpose of taking game, by A. and B., who had lawful authority to apprehend them, and that they, being about to apprehend them, the prisoners with a weapon assaulted and wounded them ; a second count charged an un- lawful wounding ; and the third and fourth counts charged a common assault. The counsel for the prosecution abandoned the last three counts, and elected to stand on the first count. The jury returned a verdict of guilty of night poaching and a common assault. Upon a ques- tion raised whether the prisoners could be con- victed of a common assault upon the first count : — Held, that the prosecuting counsel having withdrawn the counts for common assault from the jury, the question ought not to be enter- tained. Reg. V. Bay, 22 L. T. 452. Beconsideration of — ^Alteration in Book.] — ^At sessions the jury gave a special verdict of not guilty, and it was entered in the book of the clerk of the peace. Afterwards, the chairman told the jury they must reconsider their verdict ; and .they gave a verdict of guilty generally, but recommended the defendant to mercy on account of his not doing the act with a malicious intent ; and the verdict was then altered in the book of the clerk of the peace. The court refused to interfere by inandamus to cancel the alterations. Rex V. Suffolli (Justices'), 5 N. & M. 139 ; 1 H. & W. 313. Where a jury returns what the judge con- siders to be an improper verdict, he may direct them to reconsider it, and is not bound to record it unless they insist upon his doing so. Where the Jury reconsider their verdict and alter it, the second is the real verdict of the jury. Reg. V. Meany, L. & C. 213 ; 9 Cox, C. C. 231 ; 32 L. J., M. C. 24 ; 8 Jur., N. S. 1161 ; 7 L. T. 393 ; 11 W. K. 41. One of the jury pronounced a verdict of not guilty, which was entered by the clerk of the peace in his minute book, and the prisoner was discharged. Other^uiymen then interfered, and said their verdict was guilty ; whereupon the prisoner was brought back, and the jury was again asked for their verdict, when they all said it was guilty, and that they had been unanimous. A verdict of guilty was then recorded : — Held, that the verdict was properly, amended ; and the conviction must stand. Reg. v. Vodden, Dears. C. C. 229 ; 6 Cox, C. C. 226 ; 23 L. J., M. C. 7 ; 17 Jur. 1014. Amendment.] — An erroneous entry of the verdict in criminal cases may be amended from the judge's notes, but not from the recollection of the judge. Reg. v. Virrier, 12 A. & E. 317 ; 4 P. & D. 161. VIII. NEW TEIAL. In what Cases.] — No new trial can be granted in cases of felony. Rex v. Mawbey, 6 T. E. 638. But with respect to misdemeanors, it is entirely discretionary in the court whether it will grant or refuse a new trial. Ji. A new trial was granted on the ground of the improper reception of depositions in a case of felony removed by certiorari. Reg. v. Soaife, 17 Q. B. 238. But according to the common law there is no power to grant a new trial in a case of felony. Reg. V. Bertrand,-! L. B., P. C. 520 ; 36 L. J., P. C. 61 ; 16 L. T. 752 ; 16 W. E. 9. In a charge of felony where the indictment is good and the prisoner has been given in charge to a jury in due form of law empanelled, chosen and sworn, and a verdict has been returned and judgment given, the proceedings are final, and a venire de novo will not lie. Reg. v. Murphy, 2 L. E., P. C. 535 ; 38 L. J., P. C. 53 ; 21 L. T. 598 ; 17 W. E. 1047. ^Where Defendant is Acquitted.] — No new trial can be granted on an indictment for per- jury, where the defendant is acquitted. Rex v. Briee, 2 B. & A. 606 ; 1 Chit. 352. After a verdict for a defendant, upon an indict- ment for the non-repair of a highway, the court refused an application for a new trial, on the ground of the improper rejection of evidence ; but suspended the ]udgment in order that another indictment might be preferred. Rex v. Sntton, 5 B. & Ad. 52 ; 2 N. & M. 57 ; S. P., Rex v. Wandsworth, 1 B. & A. 63 ; 2 Chit. 282 ; Reg. i. Challicoml>e, 6 Jur. 481. A new trial will not be granted, after an ac- quittal upon an indictment for obstructing a Digitized by Microsoft® 803 CRIMINAL luAW— New Trial. 804 liighway, on the ground that the verdict is ?f ^J?^*„*^® evidence. Beg. v. Johnson, 29 L. J , M. 0. 133 ; 6 Jur., N. S. 553 ; 8 W. R. 236 Upon the trial of an indictment for obstructine a highway the defendant was acquitted -—Held that a new trial on the ground of misreception of evidencs, misdirection, and that the verfict was against evidence, could not be granted, liea. V. mncan, 7 Q. B. D. 198 ; 50 L. J., M. C 95 • 44 C." 0." 57'l ' ^° ^' ^- ^^ ■ ^' ^- ^- *^^ '1*^°^' A new trial was refused after a verdict of not guilty, upon an indictment for not repairing a road, when the verdict did not bind the right Jtem V. JBurbon, 5 M. & S. 392. The court refused to grant a rule nisi for a new trial after a verdict for the defendant upon an indictment for non-repair of a church-yard fence which was moved for on the ground of the verdict being against evidence. Mex v. Reynell, 6 East, 315 ; 2 Smith, 406. Not granted even for a misdirection, after an acquittal on an indictment for a misdemeanor. Rex V. Cohen, 1 Stark. 516. Where in an indictment not ohargiug an offence for which the defendant, if guilty, might suffer fine and imprisonment, a civil right comes in question, and the right would be bound by the verdict, a new trial may be granted after a verdict for defendant. By Lord Campbell, C. J., and Crompton, J. Reg. v. RuSsell, 3 El. & Bl. 942 ; 23 L. J., M. C. 173 ; 18 Jur. 1022. See Reg.y. Botfield, 1 Jui-., N. S. 594, n. But by Coleridge, J., wherever the substance of a criminal proceeding is civil, a new trial may be granted after a verdict for the defendant, on the ground either of misdirection, or of the verdict being against.the evidence. Ih. Held, accordingly, by Lord Campbell, C. J., and Crompton J. (Coleridge, J., dissenting), that where an indictment charged the defendant with erecting an obstruction to the navigation of the Menai Straits, and the right to an oyster fishery was in question, the court ought not to grant a new trial after verdict for the defendant. n. On what Grounds — Evidence received in absence of Judge.] — When it is alleged that the jury has received evidence in the absence of the judge and of the prisoner, it is for the court before whom the trial takes place to investigate the facts, and ascertain whether the alleged irregularity has occurred : but quaere whether if such irregularity is so found to have occurred, the court has jurisdiction to order a venire de novo, as for a mis-trial. Reg. v. Martin, 1 L. E., C. C. 378 ; 41 L. J., M. C. 113 ; 26 L. T. 778 ; 20 W. E. 1016 ; 12 Cox, C. C. 204. All Jury not present when Verdict given.] — If all the jury were not present when_a verdict of guilty was delivered against a defen- dant fot the publication of a libel, and it is uncertain whether they all heard such verdict pronounced by the foreman, the court will, with the consent of the defendant, grant a new trial. RexY. Wooler, 2 Stark. 111. Jurymen not all Summoned.] — Upon the trial of an information for a libel by a special jury, only ten jurymen appeared, and two tales- men were sworn to make up the jury : it is no ground for a new trial, that two of the non- attending special jurymen named in the panel had not been summoned, though it appeared that this fact was unknown to the defendant until after the trial. Rex v. Hunt, 4 B. & A. 430. Juryman who served on Grand Jury.] — After a special jury had been sworn on the trial of an indictment for a misdemeanor, it was dis- covered that one of them had sat on the grand jury who found the bill. It was proposed that he should leave the box, but the defendants objected to this courae : the trial proceeded, and they were found guilty. Under these circum- stances, the court refused to grant a rule for a new trial on the ground of mis-trial. Reg. v. Sullivan, 1 P. & D. 96 ; 8 A. & El. 831. Juryman with no Qualification — Answer- ing to Same.] — Where on the trial of an indict- ment for perjury, it . was necessary to swear talesmen from the common jury panel, and one J. Williams being called, his son E. H. Williams (at the request of his father, and without collusion) appeared for him, and was sworn and served on the jury, he not being of age, neither having a qualification, not being on the panel: — Held, that there was a mis-trial, and a rule obtained for a new trial was made absolute. Rex V. Tremaine, 7 D. & E. 684 ; 5 B. & C. 254. Upon a trial of a prisfluer for murder, the name of Joseph Henry Thorne was called from the jury panel as a juror to try him, when William Thorniley, who was also upon the j ury panel, by mistake answered to his name and went into the jury-box. He was sworn and the prisoner was convicted and sentenced. The mistake was discovered next day: — Held, that there had been no mis-trial, but quaere whether the objection made would be matter of error. Reg. v. Mellor, Dears. & B. C. C. 468 ; 7 Cox, C. C. 454 ; 27 L. J., M. C. 121 ; 4 Jur., N. S. 214. Of Surprise.] — A new trial will "be granted on an indictment for a misdemeanor on the ground of surprise, as in civil cases. Reg. v. Whitehouse, Dears. C. C. 1. Where, upon trial of an indictment for a, misdemeanor, a witness examined before the grand jury was not examined at the trial, and n, witness not examined before the grand jury was : — Held, that it was not such a surprise upon the defendants as entitled them to a new trial. Rex V. HolUngherry, 6 D. & R. 345 ; 4 B. & C. 329. Jury separating for the Night in Uis- demeanor.] — Upon the trial of an indictment for a misdemeanor, which continued more than one day, the jury, without the knowledge or consent of the defendants, separated at night : — Held, that the verdict was not therefore void ; and that it formed no ground for granting a new trial, it not appearing that there was any suspicion of any improper communications having taken place. Rex v. Kbinear, 2 B. & A. 462. Whether one of several Defendants entitled to.] — Where several defendants are tried at the same time for a misdemeanor, and some are acquitted and some convicted, the court may grant a new trial as to those convicted, if they think the conviction improper. Rex v. Mawley, 6 T. E. 619. Where all of several defendants in an indict- ment for conspiracy are found guilty, if one of Digitized by Microsoft® 805 CEIMINAL LAW — Judgment and Punishment. 806 them shews himself entitled to a new trial, on grounds not affecting the others, the new trial will nevertheless be granted. Reg. v. Gompertx, 9 Q. B. 824 ; 16 L. J., Q. B. 121 ; 11 Jur. 204. Practice on— Time to move.] — ^A defendant, convicted on a criminal prosecution,cannot move for a new trial after the first four days of the next term ; though, if it appears to the court at any time before judgment, that injustice has been done by the verdict, they will interpose and grant a new trial. JRex v. Holt, 6 T. E. 486. A motion for a new trial on behalf of a defendant in an indictment, must be made within the first four days of term, though -the argument will be postponed till he is brought up for judgment. Reg. t. Hetheri-rwton, 5 Jur. B29. Where a new trial is to be moved for by a defendant in a criminal case, intimation must be given to the court during the first four days of term that the party is prepared to move. Reg. V. Newman, 1 El. & Bl. 268 ; Dears. C. C. 85 ; 22 L. J., Q. B. 156 ; 17 Jur. 617. Affidavits.] — ^Affidavits of new facts are not in general admissible in criminal cases, on a motion for a new trial, unless there was some surprise on the defendant at the trial : but afiidavits of the death of a person may be received to account for his not having been examined as a witness. Rex v. Sowditch, 2 Chit. 278. Personal Attendance.] — AH the defen- dants convicted upon an indictment for a con- spiracy must be present in court when a motion for a new trial is made on behalf of any of them. Bex V. Teal, 11 East, 307 ; S. P., Rex v. Askew, 3 M. & S. 9 ; Rex v. Cochrane ^Lord), 3 M. & S. 10, n. Where a defendant convicted of a misdemeanor at the assizes was committed to the county gaol to abide the judgment of the court, and was detained for no other cause ; on a suggestion of his inability to pay the expense of bringing himself up, the court allowed a motion for a new trial to be made without his personal at- tendance. Rex V. Boltz, 8 D. & B. 65. It seems that the consent of the counsel for the prosecution cannot dispense with the rule which requires the presence of defendants con- victed upon a criminal proceeding, during a motion for a new trial. Rex v. Fielder, 2 D. & E. 46. A defendant in the actual custody of the marshal upon criminal process, in consequence of an indictment in the King's Bench, need not be present when a motion for a new trial is made on his behalf. Rex v. If oiling berry, 6 D. & E. 344 ; 4 B. & C. 329. A defendant sentenced to transportation can- not move for a new trial without appearing in court, though the sentence has been passed at the assizes under 11 Geo. 4 & 1 Will. 4, c. 70, s. 9. Reg. v. Caudwell, 17 Q. B. 503 ; 2 Den. C. C. 372, n. ; 21 L. J., M. 0. 48 ; 15 Jur. 1011. Semble, that where there are several defendants, all need not be present in court in order to en- title one or more of such defendants to move for a new trial. lb. In moving for a new trial where the defendant has been found guilty of a nuisance in obstruct- ing a public sewer, and where he is liable not te personal punishment but to a fine, it is not necessary that he should be present in' court. Reg. V. JParkimon, 2 Den. C. 0. 459 ; 15 Jur. 1011. Costs.] — The rule as to payment of costs on a motion for a new trial is the same in prin- ciple in civil and criminal cases. Mex v. i'ord, 1 JSr. & M. 776. Where a new trial, on an indictment removed into the Queen's Bench by certiorari at the in- stance of the defendant, is ordered on the ground of surprise, the court may, in its discretion, order the costs to await the event of the new trial. Reg. V. WMteJwiise, Dears, 0. C. 1. Appeal.]— The 17 & 18 Vict. c. 125, s. 35 (C. L. P. Act 1854), which gives an appeal on motions for new trials, does not apply to indict- ments. Reg. v. Stephens, 7 B. & S. 710. Jurisdiction of Court of Criminal Appeal.] — It seems that the Court of Criminal Appeal has no power on a mis-trial to set aside the verdict and judgment and to order a venire de novo. Reg. v. Mellor, Dears. & B. C. C. 468 ; 7 Cox, C. C. 454 ; 27 L. J., M. C. 121 ; 4 Jur., N. S. 214. IX. JUDGMENT AND PUNISHMENT. 1. Generally. 2. At Nisi Print, 814. 3. Bringing up for Judgment before Court of Queen's Bench, 814. 4. Arrest of Judgment, 816. 5. Reversal of Judgment, 816. 6. Imprisonment, Time of, 817. 1. Geneeally. Forfeiture.] — 33 Vict. c. 23, abolishes the for- feiture of lands and goods for treason and felony, and pro'cides for the administration of the pro- perty of convicts. Becord — After New Trial had.] — The record of the proceedings in the Queen's Bench upon an indictment, containing several counts for perjury, after regularly setting"forth all the proceedings, down to the finding of a verdict of guilty and the prayer of judgment, went on to state that " because it appears to the court here, that the verdict so given against 0. W. K. was unduly given ; therefore, the verdict is by the court here vacated and made void; and all other process ceasing against the jury before impanelled, the sherifE is commanded so that he cause a jury anew thereupon to come, &c., by whom the truth of the matter may be better known.'.' And then, after regularly carrying down the further pro- ceedings to the finding of a second verdict of guilty, and a second prayer of judgment, it con- cluded thus : " It is considered and adjudged and ordered that 0. W. K., for the offence charged upon him in and by each and every count of the indictment, be imprisoned in the Queen's prison for the spaceof eight calendar months :" — Held, that the record in terms contained a sufficient entry of the award of a new trial, it appearing that the form adopted was' the same as the pre- cedents used and approved of, and that the entry of the final judgment and sentence was sufficiently certain. King v. Reg. (_in ei-ror'), 18 L. J., Q. B. 253 ; 13 Jul". 742— Ex. Ch. Digitized by Microsoft® 807 CRIMINAL LAW — Judgment and Punishment, 808 *>, record at the quarter sessions, after stating that the defendants were indicted for stealing oats, to which they pleaded not guilty, and a verdict of guilty thereon, added, " that because it appeared to the justices, that, after the jury had retired^ one of them had separated from the other jurors, and conversed respecting his verdict with a stranger, it was considered that the verdict was bad," and it was therefore quashed, and a venire de novo awarded to the next sessions : and it then proceeded to set out the appearance of the parties at such sessions, and the trial and conviction by the second jury, " whereupon all and singular the premises being seen and considered, judgment was given :"— Held, on a writ of error, that such, judgment was right. Real v. Fowler, 4 B. & A. 273. Judgment — Postponement of.] — A witness being indicted for perjury is not a reason for postponing judgment against the pei-son con- victed. Rex V. Saydon, \ W. Bl. 404 ; 3 Burr. 1387. May be given though Conspirator Untried.] — Indictment against A., B., C. and D. for a conspiracy, charging that they conspired together, with divers other persons unknown. A. and B. were tried. A. was found not guilty, and B. was found guilty of conspiring with C. C. had pleaded before the trial of A. and B., but neither he nor D. appeared to take their trials. On motion to arrest the judgment against B., or suspend it till C. should be tried : — Held, that the verdict was conclusive against B. as a general verdict of guilty, and that judgment might be given against him without reference to what the verdict might be on the trial of C. Rex v. , 7 D. & E. 673 ; 5 B. & C. 538. Fonishment to commence in futnro.] — A judgment of imprisonment against a defendant to commence in futnro, i. e. from and after the determination of an imprisonment to which he was before sentenced for another ofience, is good in law. Willtes v. Rex (in error'), 4 Bro. P. C, 367. Naming Day for Corporal Punishment.]— It is not the practice of any court of criminal jurisdiction to make the day upon which execu- tion of any corporal punishment is to be done a part of the original sentence. The time of in- flicting such punishment is usually left either to the discretion of the ofiicer to whom the execu- tion of the sentence belongs, or is appointed by a particular rule of the court (or statute 27 & 28 Vict. c. 44), which awards the punishment. Atkinson v. Rex (in error), 3 Bro. P. C. 517. Statute need not be Seferred to.] — It is not necessary, in recording sentence, to refer to the statute which gives the punishment. Murray V. Reg. (in error), 7 Q. B. 700 ; 14 L. J., Q. B. 357 ; 9 Jur. 596. Fine Miscalculated.]— Where a fixed fine by statute for a misdemeanor is miscalculated in the verdict and the judgment, the court, upon a rule served on all parties interested, will alter .the rule for judgment against the prisoner, and the entry roll as to so much of the punishment, but they will not alter the judgment and verdict. Rex V. Stevens, 3 Smith, 366. Pronounced in Prisoner's Absence.] — ^A sentence of corporal punishment cannot be pro- nounced on a person in his absence. Rex v. Harm, 3 Burr. 1786 ; S. P., Anon., Loffit, 400. Several Counts.] — A general judgment for the crown, on an indictment containing several counts, one of which is bad, and where the punishment is not iixed by law, cannot be supported. O'Connell y. Reg. (in error), 11 C. & F. 155 ; 9 Jur. 25. An indictment contained four counts for ex- tortion, and three counts for uttering forged licences. The jury having returned a verdict of guilty upon all the counts, the court passed sentence of the same identical term of imprison- ment upon each count separately. Reg. v. Carter, 9 Jur. 178. The judgment, as entered on the record, being that, for the offences charged in each and every count of the indictment, the defendant be imt- prisoned in the Queen's prison for six months now next ensuing : — Semble, that the judgment was, in form, a sentence of one term of six months' imprisonment upon the whole indict- ment, and would, therefore, be erroneous if any count was bad. Gregory v. Reg. (in error), 15 Q. B. 957 ; 19 L. J., Q. B. 867 ; 15 Jur. 79— Ex. Ch. An indictment at quarter sessions charged prisoners, in a first count, with stealing in the dwelling-house of A. the goods of A. above the value of 51. ; in the second count, with simple larceny of moneys and goods (not "other" goods, &c.) of A., describing them precisely as in the first count, and not using the word " after- ' wards." Not guilty. Jury process to try whether the prisoners are guilty of the felony aforesaid. Verdict that the prisoners are guilty of the felony aforesaid. Judgment, that they respectively be transported for ten years : — Held, that an indictment for felony containing several counts is bad in arrest of judgment, and on error, for duplicity, if it necessarily appears that two or more of the counts are for the same offence ; but that this did not necessairily appear on the present indictment. Campbell v. Reg. (in error), 11 Q. B. 799 ; 2 New Sess. Cas. 297 ; 2 Cox, 0. C. 463 ; 15 L. J., M. C. 76 ; 10 Jur. 329. Held, secondly, that the word " felony " was not nomen collectivum, meaniug felony gener- ally, but pointed to one particular charge of felony. lb. See Ryalls v. Reg. (in error), 11 Q. B. 781. Held, thirdly, that the verdict was bad for uncertainty, in not specifying the offence of which it found the prisoners guilty. lb. Held, fourthly, that the judgment was errone- ous, the court not being at liberty to apply it to the first count only. lb. On error in the Exchequer Chamber : — Held, that whether or not the word " felony " was to be taken as nomen collectivum in the judgment at sessions, it could mean in the jury process one offence only, and therefore the process was here misawarded, and the judgment could not be sustained. lb. An indictment for perjury contained , two counts, charging perjury to have been com- mitted by the defendant on two different occa- sions, one in the progress of a trial, the other in an affidavit in chancery. Both acts of perjury had the same object in view : — Held, that they were distinct offences, and a punishment might Digitized by Microsoft® 809 CEIMINAL LAW — Judgment and Punishment. 810 be inflicted in respect of each. Castro v. Beg., 6 App. Cas. 229 ; 50 L. J., Q. B. 497 ; ii L. T. 350 ; 29 W. K. 669 ; 45 J. P. 452 ; 14 Cox, C. C. 546— H. L. (E.) That the full punishment of seven years' penal servitude might be inflicted for each offence, and that the second term of penal servitude was properly made to begin at the termination of the first term. Ih. If one count in an indictment removed from the quarter sessions to the Queen's Bench by writ of error is good, the court may, under 11 & 12 Vict. 0. 78, s. 5, pronounce judgment, or direct the sessions to pronounce it, on the good count. Sollowaij V. Meg. (in error'), 17 Q. B. 319 ; 2 Den. C. C. 287 ; 15 Jur. 852. Charge of Joiat Felony — Proof of Separate Felonies.J — Two persons charged on indictment with a joint felony, ought not to be sentenced thereon on proof of two distinct felonies. If a verdict of guilty is given against both, judgment may be given against the party who is proved to have committed the first felony in order of time. Reg. v. Gray, 2 Den. C. C. 87 ; T. & M. 411. Withdrawing Plea.] — On an indictment for libel, the defendant suffered judgment by retraxit. The record of the judgment stated that the prosecutor and the defendant came, &e., and the defendant " withdrew his plea by him pleaded, whereby our lady the Queen remaineth against him without defence in this behalf, whereupon " it was adjudged that he be con- victed : — Held, sufficient ground for a judgment, though it was not expressly alleged that the defendant confessed the indictment. Gregory V. Reg. (in error), 15 Q. B. 957 ; 19 L. J., Q. B. 367 ; 15 Jur. 79— Ex. Ch. Jndgment or Order.] — To the "judgment of imprisonment was added, " and that he " (defendant) " be placed in the first division of the fourth class of prisoners in the Queen's prison : " — Semble, that, if this direction was not warranted by an order of the secretary of state, under 5 & 6 Vict. c. 22, it did not vitiate the judgment. It. Held, by the Queen's Bench, that such direc- tion, when warranted, is no part of the judgment of the court, but a mere order. lb. Case standing over pending Application to Amend.] — On an objection to the entry of a judgment, on the ground that it was a general judgment upon all the counts, and one of them was bad, the court ordered the case to stand over to allow the prosecutor to apply to the court below to"amend. lb. Fenal Servitude.] — 20 & 21 Vict. c. 3, amendt the 16 & 17 Vict. c. 99, and abolishing transpor- tation, substitutes penal punishment. 27 & 28 Viet. c. 47, amends the. Penal Servi- tude Acts, 16 & 17 Vict. c. 99, and 20 & 21 Vict, c. .S, The Prevention of Crimes Act, 1871, amended by 42 & 43 Vict. c. 65, amends the Penal Ser- vitude Acts. 42 & 43 Vict. c. 55, reduces the minimum terms of penal servitude in case of previous convictions to five years. Transportation — What is.] — By the word transportation in 8 Geo. 3, c. 15, was meant not merely the conveying of the felon to the place of transportation, but his being so conveyed and remaining there during the term for which he was ordered to be transported ; and, therefore, a felon attainted was not by that statute restored to his civil rights till after the expiration of the term for which he was ordered to be so trans- ported. Bulloch V. Dodds, 2 B. & A. 258. Judgment or Order.] — Where a prisoner was convicted of perjury at the assizes at Chester, and the sentence of transportation was entered on the record as follows : — " Wherefore, all and singular the premises being seen by the justices here, and fully Understood, it is therefore ordered that he the said L. K. be transported to the coast of New South Wales, or some one or other of the islands adjacent, for and during the term of seven years : " — Held, on error, that this was no judg- ment, but merely an order. Rex v. Kenworthy, 3 D. & E. 173 ; 1 B. & C. 711. A judgment entered upon the record, that J. M. " be transported beyond the seas for the term of ten years, from the 8th day of August in- stant," without specifying some place of trans- portation, " not in Europe," is correct and valid, notwithstanding. Mai-tin r. Reg., 3 Cox. C. C. 319. Punishment before Penal Servitude need not be given.]— The 2 Geo. 2, c. 25, s. 2, authorizes the judge before whom a person shall be con-- victed of perjury, to order such person to be sent to a house of correction for seven years, there to be kept to hard labour; "and thereupon judg- ment shall be given that the person convicted shall be committed accordingly, over and besides such punishment as shall be adjudged to be inflicted upon such person, agreeable to the laws now in being : " — Held, that this statute did not impose on the pourt the necessity of awarding any punishment previous to that of penal ser- vitude, so as to give the sentence of penal servi- tude the form of an additional punishment. Castro V. Reg., 6 App. Cas. 229 ; 50 L. J., Q. B 497 ; 44 L. T. 350 ; 29 W. E. 669 ; 45 J. P. 452 : 14 Cox, C. C. 546— H. L. (B.) Sentence Presumed to be Passed by Court of Competent Jurisdiction.]— A return to a habeas corpus to bring up two prisoners detained in Millbank prison, set out an act of the Eoyal Court of Jersey, whereby they were convicted of burglary by that court (which was alleged to be a competent court to try and punish that crime), and sentenced to be transported to such place as her Majesty in council should order. It also set out an order in council directing the place of their transportation, and a warrant of the secretary of state for their removal to Mill- bank prison, in order to carry the sentence into effect, and as authority to the keeper of that prison to receive them :— Held, that the court was bound to presume that the sentence being passed by a court of competent jurisdiction, and unreversed, was warranted by law and valid. Reg. V. Brenan, 10 Q. B. 492 : 16 L. J.. Q. B. 289 ; 11 Jur. 775. length of Sentence — Effect of Excess.]— A judgment of transportation for fourteen years, if bad for excess, is bnd in toto, and cannot Digitized by Microsoft® 811 CRIMINAL LAW — Judgment and Punishment. 812 operate as a good judgment of transportation for seven years. Bex v. Ellis, 8 D. & K. 173. "Where a court of quarter sessions passed an erroneous judgment of transportation, tlie court ■would not send it back to be amended, but would reverse it on writ of error, before 11 & 12 Vict. c. 78, s. 5. II. Amendment of Sentence.] — The prisoner was convicted on an indictment for obtaining goods by false pretences, and also pleaded guilty to a previous conviction for false pretences charged in the indictment. He was sentenced to seven years' penal servitude : — Held, that the sentence was wrong, and it was amended by reducing it to five years' penal servitude. Reg. v. Horn, 15 Oox, C. 0. 205 ; 48 L. T 272 ; 47 J. P. 344. Previous Conviction.] — A prisoner had "been convicted on an indictment charging a pre- vious conviction and subsequent felony under 24 & 25 Yict. c. 96, li. 116, and sentenced by mistake to five years' penal servitude, seven years being the minimum under the statute. Upon a writ of error, by the crown, for the purpose of -revers- ing the judgment and passingthe proper sentence, it appeared from the record that the provisions •of the statute, as to arraigning the prisoner, had "been neglected : — Held, that these provisions were ■material, and the conviction was quashed. Reg. -V. Fox, 10 Cox, C. C. 502 ; 15 W. E. 106. • A. was convicted of the misdemeanor of having ■done grievous bodily harm to B. The indictment ■did not charge a previous conviction of felony ; "but after the jury had found him guilty, it was proved on oath that he had been previously con- -victed of felony, but no record or certificate of such conviction was produced. He was sentenced to penal servitude for five years, as for a misde- meanor only without any previous conviction of ielony : — Held, that the sentence was correct under 27 & 28 Vict. c. 47, s. 2. Beg. v. Summers, I L. K., C. 0. 182 ; 38 L. J., M. C. 62 ; 17 W. R. 384 ; 11 Cox, C. C. 248. See Beg. v. Garland, II Cox, C. C. 224. length of Sentence in Particular Cases.] — Under 7 Will. 4 & 1 Vict. o. 90, s. 1, by which any person convicted of the offence of breaking and enteringa dwelling-house, and stealing there- in, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, there was no power to pass sentence of transportation for less than ten years. Whiteliead v. Beg. (in error'), 7 Q. B. 582 ; 14 L. J., M. C. 165 ; 9 Jur. 594. A person convicted of obtaining money by ialse pretences, after a previous conviction for felony (the previous conviction being charged in the indictment), cannot be sentenced to penal servitude for a less term than seven years. Beg. V. DeuTie, 2 Q. B. D. 305 ; 46 L. J., M. C. 155 ; 36 Xi. T. 31 ; 13 Cox, C. 0. 386. See now, however, 42 & 43 Vict. c. 55, which repeals s. 2 of the Penal Servitude Act, 1864. To render a sentence of penal servitude for seven years obligatory under the Penal Servitude Act, 1864, which enacts in s. 2 (repealed), that " where any person shall, on indictment, be convicted of any crime or offence punishable with penal servitude, after having been previously convicted of felony, the least sentence of penal servitude that can be awarded in such case shall Toe a period of seven years;" the indictment must charge- the previous conviction. Beg. v. Willis, 1 L. R., C. C. 363 ; 41 L. J., M. C. 102 ; 26 L. T. 485 ; 12 Cox, C. 0. 192. Therefore, when a man was convicted of un- lawfully wounding on an indictment which charged a wounding with intent to do grievous bodily h^irm, and did not mention a previous conviction for felony, but such a previous con- viction was proved against him : — Held, that the judge was not bound to pass a sentence of penal servitude for seven years, and that a sen- tence of penal servitude for five years was right. lb. An indictment contained three counts ; first, a count stating a previous conviction, and a sub- sequent larceny ; secondly, a count for larceny ; thirdly, a count for receiving stolen goods. When the prisoner was arraigned, so much only of the first count as charged the subsequent felony was read to him, and he pleaded guilty thereto. He also pleaded guilty to the second count. Then so much of the first count was read as stated the previous conviction, and the prisoner pleaded guilty thereto. He was then sentenced to five years' penal servitude on the second count ; a nolle prosequi was entered on the third, and nothing was done on the first. These facts ap- peared on the record. The crown having brought the record upon writ of error for the purpose of having the sentence increased to seven years' penal servitude, under 27 & 28 Vict. c. 47, s. 2 : — Held, that the first count was bad, and no sentence could be entered upon it ; that, the second count being good, the sentence properly entered upon it was not affected by the first count ; and, the croWn entering a nolle pro- sequi on the first count, the judgment and sentence were affirmed ; but the court recom- mended that, under the circumstances, the executive should discharge the prisoner after two years' imprisonment. Beg. v, O'Brien, 1 Ir. R., C. L. 166. Eetnrning from Transportation.] — The king's . sign manual may be given in evidence by the prisoner, on an indictment for returning from transportation ; and if not revoked, and the condition is literally, though not substantially complied with, it will discharge the prisoner from that indictment. Bex v. Miller, 2 W. Bl. 797 ; 1 Leach, C. C. 74. Indictment.] — An indictment for being at large after an order of transportation, stated that the prisoner was capitally convicted at the assizes of 1818 ; and that mercy was ex- tended to him on condition of his being trans- ported for life to some parts beyond the seas ; and that he was ■^hereupon ordered to be trans- ported to New South Wales, or to some of the islands adjacent ; and it appeared that the condition on which mercy was granted was not general, but specific, that he should be trans- ported to New South Wales, or some of the islands adjacent : — Held, a fatal variance. Bex V. Fitzpatriclt, E. & E. C. C. 512. An indictment on 56 Geo. 3, c. 27, ti. 8, for being at large after sentence of transportation, should set forth the effect and substance of the former conviction ; so likewise should the certi- ficate of the former conviction. Bex v. Watson, R. & R. C. C. 468 ; S. P., Beg. v. Snteliffe, R. & R. C. 0. 469, n. In an indictment under 5 Geo, 4, c. 84, s, 22, Digitized by Microsoft® CEIMINAL LAW — Judgment and Punishment. 813 it is necessary to aver that the .prisoner was feloniously at large before the expiration of his sentence, and an indictment omitting the word " feloniously " is bad. Reg. v. Some, 4 Cox, C. C. 263. Original Sentence Eevives.] — ^A prisoner conTicted of a capital crime, whose sentence is respited during the king's pleasure, and who, on having received pardon on condition of trans- portation for life, is afterwards found at large in Great Britain, without lawful cause, will be referred back to his original sentence. Rex v. Madan, 1 Leach, C. C. 223. Payment of Beward.] — The judge, before whom a prisoner is tried for returning from transportatioii, has power to order the county treasurer to pay the prosecutor the reward under 5 Geo. 4, o. 84, s. 22. Reg. v. lEmmons, 2 M. & Bob. 279. S. P., Reg. v. Amiury, 6 Cox, G. C. 79. Proof of Conviction and Sentence.] — On the trial of an indictment against a person for being at large without lawful cause before the expiration of his term of transportation, a certi- ficate of Jiis former conviction and sentence was put in : it purported to be that of J. G., deputy clerk of the peace for the county of L., and clerk of the courts of general quarter sessions of the peace holden in arid for the said county, and having the custody of the records of the courts of general quarter sessions of the peace holden in and for the said county. It was proved that Mr. H. was clerk of the peace of L., and that he had three deputies, partners, of whom J. G., who had signed the ,certificate, was one; and that each of them acted as clerk of the peace ; and that for forty years they had kept the sessions records at their office : — Held, sufficient proof of the conviction and sentence under 5 Geo. 4, c. 84, s. 24. Reg. v. Jones, 2 C. & K. 524. Where a prisoner was indicted under 5 Geo. 4, c. 84, s. 22, for being found at large in England before the expiration of y, term for which he had been sentenced to be transported : — Held, that the fact of such sentence being in force at the time he was so found at large, was sufficiently proved by the certificate of his conviction and sentence, the judgment remaining unreversed ; although, on the face of such certificate, it ap- peared that the sentence was one which could not have been inflicted on him for the offence of which, according to such certificate, he had been committed. Reg. v. Mnney, 2 C. & K. 774. A certificate of previous conviction for felony, prepared under 7 & 8 Geo. 4, c. 28, s. 11, is good evidence of his conviction and sentence, on an indictment for returning from transportation before the expiration of a sentence under 5 Geo. 4, c. 84. Reg. v. Ambury, 6 Cox, C. C. 79. Punishment.] — Under 9 Vict. c. 24, s. 1, the judge had the power of reducing the punish- ment of transportation for life under 4 & 5 Will. 4, IS. 67, for the ofEence of being at large before the expiration of the term for which the prisoner had been ordered to be transported, and might under the latter statute sentence the prisoner to be transported for any term less than seven 814 years after the imprisonment directed by the earlier statute. Reg. v. Lamb, 3 C. & K. 96. 2. At Kisi Pbius. Application to amend Judgment.] — By 11 Geo. 4 & 1 Will. 4, c. 70, s. 9, upon trials for felony or misdemeanor on a K. B. record, judg- ment may be pronounced at the assizes, and shall have the effect of a judgment in the court above, unless the court in the first six days of term grant a rule nisi for a new trial or for amending the judgment. A defendant on such record having been sentenced at the assizes, can- not apply to the court to amend the judgment by diminishing the punishment upon ordinary affidavits in mitigation, or without shewing some specific defect in the sentence, or some matter which could not have been adduced at the assizes, ^ea; v. i^oy^i, 4B. &Ad. 135. Where judgment on a record of the Queen's Bench is pronounced at the assizes under 11 Geo. 4 & 1 Will. 4, c. 70, s. 9, the court may, if they see fit, amend the judgment by ordering it to be ari-ested. Req. v. Nott, 4 Q. B. 768 ; D. & M. 1 ; 12 L. J., M. C. 143 ; 7 Jur. 621. Where a verdict has been given for the crown in such trial, and the defendant desires to have judgment pronounced at the assizes, it is the proper course for his counsel to state at the same time, that he intends to avail himself of the provision of s. 9, by moving the court for a new trial on the ground of misdirection, or in arrest of judgment. lb. Upon the trial of an indictment at nisi prius, judgment was pronounced by the judge, under 11 Geo. 4 & 1 Will. 4, c. 70, s. 9 ; but a rule nisi, to arrest the judgment, was afterwards granted by the court of Queen's Bench, within the first six days of term, and subsequently discharged. Upon writ of error brought, the record was made up without any notice of such rule : — Held, that the judgment could not be impeached upon the ground of such rule having been granted. Dunn V. Reg. (in er^-or'), 12 Q. B. 1026; 3 Cox, 0. 0. 205 ; 18 L. J., M. C. 41 ; 13 Jur. 233— Ex. Ch. Sentence — Commencement of.] — ^A sentence of imprisonment passed at nisi prius,, the defendant not being present, may declare that the impri- sonment shall commence on the day on which he shall be taken to and confined in prison. Xing V. Reg. (in error'), 7 Q. B. 782 ; 14 L. J., M. C. 172; 9Jur. 833— Ex. Ch. New Trial — Second Trial at Sessiong.] — An indictment for felony had been removed from the quarter sessions, and tried at nisi prius. The prisoners were convicted, and the court of Queen's Bench ordered a new trial. Neither side brought down the record, but the prisoners applied to be tried there ; this could not be done, as the record had not been brought down. A procedendo issued, and the prisoners were tried at the quarter sessions and convicted. Reg. v. Seaife, 3 C. & K. 211. 3. Bbinging up foe Judgment befoeb CouET OF Queen's Bench. Sentence passing in Absence or Presence of Defendant. ] — The court cannot compel a prosecu- tor to be at the expense of bringing a defendant Digitized by Microsoft® J 815 CRIMINAL LAW — Judgment and Punishment. 816 in^ custody up to receive iudgment for a misdemeanor ; but if the defendant is too poor to come up at his own expense, they will pass judgment in his absence. Mex v. BvUz, 8 D. & E. 65 ; 5 B. & 0. 334. Where a defendant, convicted upon an indict- ment for a libel, was committed to prison at the instance of the prosecutor, who would not after- wards bring him up for judgment, the court, at the prayer of the defendant, passed judgment in his absence. lb. Ai indictment for perjury was removed by the defendant under 16 & 17 Vict. c. 30, ss. 4, 5. At the trial the defendant was convicted, but sentence was not passed upon her. Due notice was served upon her and her bail that she was to receive judgment on a particular day. She did not appear. The court refused to pronounce jifflgment in the absence of the defendant, but ordered the recognizances to be estreated. Beg. V. WillicMJu, 18 W. K. 806. But where a. defendant had been convicted for a conspiracy to bribe, the attorney-general prayed judgment in the absence of the defend- ant, who produced affidavits shewing that he was too ill to attend : — Held, that the court had a discretionary power whether or not judgment should be pronounced in the absence of a defendant. Had the sentence been that of imprisonment his attendance might have been insisted on ; but as a flue was considered suf- ficient, sentence was passed in his absence. Iteg. V. Kinglalu; 18 W. R. 806. A justice convicted of a misdemeanor in his office must attend in person to receive the judg- ment of the court ; but upon an affidavit of age and infirmity the court will dispense with his personal attendance. Rex v. Constable, 7 D. & E. 663 ; 3 B. & Ad. 659, n. Entering into Becognizauces — Proof that Defendant has since Offended.] — Where, upon a trial of an indictment for libel, one of the defendants pleaded guilty, and entered into recognizances to appear and receive judgment, with a condition that if he ceased to publish libels he would not be called up ; the court would not pass judgment unless the prosecutor produced an affidavit that he had published a libel since the trial. Reg. v. Bieliardson, 8 D. P. C. 511 ; 4 Jur. 104. Practice — In what order Proceedings heard.] — When a defendant is brought up for judgment, after verdict, the defendant's affidavits will be first read, and then those for the prosecution ; after which the defendant's counsel will be heard, and lastly, the counsel for the prosecution. Rex V. BunU, 2 T. E. 683. But where a defendant is brought up for sen- tence, after judgment by default, the prosecutor's affidavits will be first read, then the defendant's ; after which the counsel for the prosecution will be heard, and lastly, the counsel for the defendant. Where several defendants are brought up for sentence, some after judgment by default and others after verdict, the counselfor all must first be heard in mitigation, and then the counsel for the crown in aggravation. Bex v. BesparA, 2 M. & S. 406. Where a defendant, having pleaded guilty to an indictment, is brought up for judgment, the counsel for the crown is to be heard before the counsel for the defendant ; and the affidavits in aggravation -are to be read before the affidavits in mitigation. Reg. v. Bignam, 7 A. & E. 593. Contr^, where a verdict of guilty has been taken, though by consent, and without evidence. Ih. Semble, that the rule is not to be varied where several defendants are jointly indicted, and some suffer judgment by default and others are con- victed on verdict ; and in such case, where there was no affidavit in aggravation, but affidavits were offered in .mitigation, the court heard the counsel for the defendants first. 11. See Be.r V. SiMon, 7 A. & E. 592, n. Acts subsequent to Trial may be Considered.] — When a defendant is brought up for judgment his acts subsequent to the trial may be considered either by way of aggi'avating or mitigating the punishment, even though they are separate and distinct offences, for which he may be afterwards punished. But in such oases the court will take care not to inflict a greater punishment than the principal charge itself will warrant. Rex v. Withers, 3 T. E. 428. Affidavits in Aggravation.] — Affidavits are not admissible in aggravation in a case of felony, although the record has been i-emoved by certiorari. Bex v. Ellis, 9 D. & E. 174 : 6 B. i; C. 145. Where Prosecutor has brought Action for same Offence.] — A d^endant being brought up for judgment for an assault, and it appearing that the prosecutor had commenced an action, which was still depending for the same assault ; the court refused to pass any judgment, except that the defendant should give security for his good behaviour, he having used violent language towards the prosecutor in addressing the court ; and this, although, at the time of the defendant being brought up, the prosecutor offered to dis- continue the action. Bex v. 0' Gorman Mahon, 4 A. & E. 575. 4. Aeebst of Judgment. Presence in Court.] — If a defendant would move in arrest of judgment after conviction for a misdemeanor, he must be present in court. Bex V. Spragg, 2 Burr. 928. 5. Ebversal ov Judgment. Statute.] — By 11 & 12 Vict. c. 78, s. 5, wUeneter any ivrit of error shall ie brought on any judg- ment in any indictment, information, present- ment or inquisition in any criminal case, and the court of error shall reverse the Judgment, it shall be competent for such court of error either to pronounce the proper judgm^ent or to. remit the record to the court below, in order that such court may pronounce the proper judgment upon such indictment, information, presentment or inquisition. Discharge of Prisoner.] — Where a person has been erroneously sentenced at quarter sessions to imprisonment and hard labour, the court, after reversing the judgment in error, has no alter- native but to discharge the prisoner. Silversides V. Beg., 2 G. & D. 617 ; 3 Q. B. 406 ; 6 Jur. 805. Upon a reversal of the judgment, the court has no power to order that the plaintiff in error 2 E Digitized by Microsoft® 817 CRIMINAL LAW — Error and Appeal. 818 should be discharged. Xing .v. Eeg. (in error'), 7 Q. B. 782 ; 14 L. J., M. C. 172 ; 9 Jur. 833— Ex. Ch. Where a judgment of imprisonment was re- versed upon error, the court granted a rule, directing that the plaintiff in error should be discharged out of the custody of the keeper of the Queen's prison, where he had been kept by- virtue of his commitment. ITolt v. Seg. Qin error), 2 D. & L. Hi ; 14 L. J., Q. B. 98 ; 9 Jur. 538. Execution Stayed pending Writ of Error.] — By 8 & 9 Viet. c. 68, s. 1, execntion of judgment upon prosecutions for misdemeanors, while a, writ of error is pending to reverse the judgment , may be stayed upon giving bail. 6.. Imprisonment, Time op. How Computed.] — Where a term of one calen- dar month's imprisonment begins in one month and ends in another, the month must be cal- culated from the day on which the imprisonment commences to the day before the (numerically) corresponding day in the following month. If there be no such numerically corresponding day, the term will end on the last day of the following month. Migotti v. ColvUle, 4 G. P. D. 233 ; 48 L. J., C. P. 695 ; 40 L. T. 747 ; 27 W. E. 744 ; 14 Cox, C. 0. 305— C. A. X. ERROR AND APPEAL. 1. Writ of Error. 2. Appeal, 822. 3. Court of Orotim Cases Reserred, 823. 1. Weit of Breok. Jurisdiction to Review the Granting of.] — The granting of a writ of error is part of the prero- gative of the crown. If, therefore, the attorney- general . of England or the lord-lieutenant of Ireland refuses to grant it, the lord-chancellor has no jurisdiction to review that decision. Piggott, In re, 19 L. T. 114 ; 11 Cox, C. C. 311. After Judgment — Only Means of Bemoving Record.] — After judgment the record can only be removed by a writ of error. Rex v. Seton, 7 T. E. 373 ; 8. P., Rex v. W. R. Torhshire {Jus- tices), 7 T. E. 467. On what Grounds.] — A return to a writ of error, directed to the commissioners of oyer and ter- miner of the city of London, set out the record of an indictment found against the defendant before the lord mayor and others, and stated that he was tried upon the indictment by a jury of the country at the next session holden before the lord mayor and several of the judges, aldermen, recorder and others, assigned by certain letters patent under the great seal directed to them, or any two or more of them, to inquire of certain offences ; and that he was, by the verdict of such jury, found guilty, and that thereunto judgment was given by the court against him. Upon this return the defendant assigned, as errors in law, that the judgment was insufficient, and should have been for the defendant ; and, as errors in fact, first, that when the jury gave their verdict there was but one of the justices named in the commission present in court ; and, secondly, that the verdict was not at the time it was so given entered of record. The king's coroner and attorney answered, in uullo est erratum, and prayfid that the judgment might be affirmed :— Held, as to the first error in fact, that, as it appeared by the record that the verdict was given at a session holden before several of the commissioners and justices, the plaintiff in en'or could not be allowed to aver, in contradiction of the record, that only one of the justices was pre- sent when the jury gave their verdict, and the answer in nullo est erratupi is no admission of the fact assigned for error, unless it could law- fully be assigned, and is well assigned in point of form : — Held, also, that the second en-or in fact assigned was no error, inasmuch as it was im- possible that a verdict should be recorded at the time when it was given, the recording of it being necessarily an act subsequent to the delivery of the verdict by a jui-y. Rex v. Carlile, 2 B. & Ad. 3.62 ; 4 C. & P. 415. Error was brought upon a judgment at the Old Bailey, and one ground assigned waS that a material fact stated on the record was not true. The court held such an averment inadmissible, and affirmed the judgment. The fact being as alleged by the defendant below, the court of oyer and terminer afterwards ordered the record to be amended, and their clerk, by a rule of the court of K. B., came into the latter court and made the amendment there. Upon motion after- wards that the case might be again set down for argument : — Held, that the court of K. B. could not re-hear it, after the expiration of the term in which judgment was given, though the attorney-general consented, and that the only remedy was by writ of error to the House of Lords. Rex v. Carlile, 2 B. & Ad. 971. Where the court appears by the indictment to have had jurisdiction over the offence, it cannot be assigned as ground of error that the ofience was committed out of the jurisdiction of the court. Reg. v. A^'ewtan, 4 El. & Bl. 869 ; 24 L. Ji, Q. B. 246 ; 1 Jur., N. S. 591 ; S. P. and S. C, 16 C. B. 97. When an indictment contains several counts, it is not ground of error that no verdict has been given on some of them, provided a verdict has been found on one good count, and judgment given accordingly. Latham v. Reg. (in error), 5 B. & S. 635. A writ of error was sued out by a person con- victed of a misdemeanor in the Queen's Bench, and judgment of reversal for non-joinder in error was entered up in the Exchequer Chamber. Subsequently the Queen's Bench, by rule, quashed the writ as havirig been improperly issued for the purpose of effecting a. compromise. The writ, assignment of errors, and judgment of reversal remained upon the judgment roll and transcript, and below them an entry was made of the rule of the court, quashing the writ of error. The prisoner sued out a fresh vrrit of error, and assigned errors both in the indictment and in the rule of the Queen's Bench. The prosecutor obtained a rule nisi in the Exchequer Chamber to expunge the entry of the judgment : — Held, that the court of Queen's Bench having, tn the exercise of its equitable jurisdiction, quashed the first writ of error for matter dehors the record, the writ and the judgment under it were both void and gone, and ought not to remain on the record ; that the rule of the Queen's Bench being for matter dehors the writ was not examinable in error, and ought not to Digitized by Microsoft® 819 CRIMINAL I.A^Y— Error and Appeal. appear on the record, and that the rule to ex- punge the judgment might be made absolute in its terms, as the writ of error, on which it was founded, was absolutely avoided ; aliter if the writ of error had been merely voidable, in which case the rule would have been niiseonoeived as not embracing it. AUeyne v. Reg. (m error'), 5 Bl. & Bl. 392 ; Dears. 0. C. 505 ; 24 L. J., Q. B. 282 ; 1 Jur., N. S. 869— Ex. Ch. Previous Fiat of Attorney-General.]— It is in the discretion of the attorney-general to grant his iiat for a writ of error for a misdemeanor, and therefore, if he has exercised his discretion by refusing to grant his fiat, the court will uot order him to grant it. Ileg. v. Xewton, i El. & Bl. 869 ; 24 L. J., Q. B. 246 ; 1 Jur., N. S. 591 ; S. P. and S. C. nom. Xewton, In re, 16 C. B. ■97. ■ _ Where, in a colony, a person has been con- victed of a criminal offence, and is in execution of a sentence passed for that offence, no writ of error will be granted to bring up the record of conviction, unless the attorney-general has first issued his fiat for a writ of error. Nor wjU a certiorari be granted in general to remove a Tecord under such circumstances in order that a writ of error may afterwards be brought. Nor will a habeas corpus be granted under such circumstances to bring up the prisoner. lieg. v. Lees, El., JBl. & El. 828 ; 27 L. J., Q. B. 403. Misdemeanors.] — 16 & 17 Vict. c. 32, imposes terms and conditions for brhiging writs of error nijjon judgments for misdemeanors. Practice on — Presence in Court of Plaintiff in Irror.] — The court dispensed with the attend- ance of a plaintiff in error, to crave oyer of the record of an indictment for bigamy, for the purpose of assigning errors, where it appeared that he was resident in Australia, where he had been for the last thirty years ; that he was sixty-six years of age, and subject to paralytic attacks, and that he could not make the journey ■to this country without injury to his health, and without considerable pecuniary loss. Murray v. Reg. (in error), 3 D. & B. 100 ; 7 Q. B. 700 ; 14 X,. J., Q. B. 357 ; 9 Jur. 410. Upon a motion by a plaintiff in error under 16 & 17 "Vict. c. 32, s. 3, for reversal of judgment upon an indictment for a misdemeanor, he must Tae personally present in court. Howard v. Reg.