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A
SELECTION OF CASES
ILLUSTRATIVE OF
ENGLISH OEIMINAL LAW.
CAMBRIDGE UNIVERSITY PRESS
aoiitron : FETTER LANE, E.C.
C. F. CLAY, Manager
W^
OrDinburaJi: 100, PRINCES STUKKT
lonUon- STEVEXS AND SONS, Ltd., 119 and 120, CnANCERY LANE.
Berlin: A. ASIIER AND CO.
Efip>ig: F. A. BROCKUAUS
p.tto ^orfe: G. P. PUTNAM'S SONS
JSombag anU Calcutta: MACMILLAN AND Co., Ltd.
All rights reserved
SELECTION OF CASES
ILLUSTRATIVE OF
ENGLISH CEIMINAL LAW
BY
COUETNEY STANHOPE KENNY, LL.D.
DOWNING PEOFKSSOR OiT LAW IN THE UNIVERSITY OF CAMBRIDGE.
THIRD EDITION.
CAMBRIDGE:
AT THE UNIVERSITY PRESS.
1912
I'll?.
First Edition 1901.
Second Edition 1907.
Third Edition 1912.
I
V
!
PEEFACE.
V
THE increased attention which, of recent years, has been
bestowed, both in England and in the United States, upon
the methods of legal education, has caused a fuller recognition
of the great value which case-law possesses for even the
elementary student. Only by means of concrete cases can he
give vividness and reality to the abstract principles which he
learns from his text-books, or even form a clear idea of the
way in which questions, whether of law or of fact, are handled
in everyday practice by our courts of justice. But, valuable
though this part of his legal training is, it is the part in
which he most needs direction. Elementary students who read
the Reports under their own guidance are prone to reverse
the true order of things, by attending to the names of cases
rather than to their facts, and to the facts rather than to the
principles decided. Even when the principle itself is sought
for, it is too often sought only by the compendious method of
perusing nothing of the case beyond the head note ; a plan
of study which combines the disadvantages of reading case-law
with those of reading text-books. And even a student whose
greater assiduity has saved him from these errors is often led,
by a natural inclination for reading recent cases in preference
to older ones, to waste his time upon the study of decisions
that are concerned only with some refined limitation of a fund-
amental doctrine, when he has not yet become acquainted with
the cases in which that broad doctrine itself is established.
K. b
787806
vi Preface.
These facts have often been forced upon my attention in
the course of twenty-five years' experience as a law-lecturer at
Cambridge ; an experience which has also afforded me oppor-
tunities of observing what portions of our case-law are best
adapted to ai'ouse the attention and impress the memory of
students in their early days of difficulty, when legal phrases
and principles have not yet ceased to be unfamiliar and un-
inviting. In order to obtain such cases, I have gone to a
variety of sources; not limiting myself to the decisions of the
Courts of Criminal Appeal, or to modern decisions, or even to
English ones. I have preferred short cases ; any longer ones
I have usually abridged. To beginners, at any rate, I hope
the volume will be of service in affording brief and vivid
illustrations of the practical working of the English Criminal
Law.
The compilation of the book would have been impossible
but for the permission which the Incorporated Council of Law
Reporting generously conceded to me, to make use of their
Reports ; a permission for which my most cordial thanks are
due. I must also thank the proprietors of the copyright of
Mr Cox's Criminal Law Reports, for allowing me to take several
cases from their series. To my friend and former pupil, Mr
W. C. A. Laudon, of Gray's Inn, I am indebted for assiduous
assistance in preparing the volume and carrying it through
the press. And to the kindness of Professor Maitland I owe
the admirable English rendering in which the cases cited here
from the Year Books— except one or two added by myself after
he had gone abroad — are made acceptable to modern eyes.
1901.
In this third edition I have introduced a few slight modi-
fications ; and added at the end an Index.
1911.
INDEX OF CASES.
A,
PAGE
PAGE
R. V. Atwood
540
R. V. Lord Abingdon
440
Aveson v. Lord Kinnaird
498
R. V. Aitken
315
R. V. Ayes
113
R V. Alice
41
B.
R. V. Allen
423
R. V. Bailey
29
R. V. Almon
38
R. V. Baker
419
R. V. Amier
220
R. V. Ball
489
Anonymous : —
R. V. Barnard
333
(2 Carringto
Q and Payne)
469
Barrow v. Lewellin
437
(Coke)
449
R. V. Bateman
191
(Dalton)
211
R. V. Baynes
165
(East's P.C.)
284
R. V. Bazeley
305
(Foster)
27
Beale v. Carter
146
(Hale's P.C.
I-)
449
Beatty v. Gill banks
392
(
11.)
467
R. V. Bedingfield
501
(Kelyng)
66
The State v. Bell
55
( » )
79
R. V. Bennett
98
( » )
176
Bennett v. Clough
461
( » )
217
R. V. Birdseye
479
(Lib. Aas. ann. 26)
137
R. V. Churchwardens of Birmingham 512
\ >5 J)
27)
64
R. V. Birt
387
( » »
>,)
219
R. v. Blenkinsop
193
( >» »
43)
141
R. V. Boden
282
(Salkeld)
1
Boldron v. Widdows
477
(Year Book,
2 Edw.
3)
92
R. V. Borrett
461
(
7 Hen.
6)
253
R. V. Bourne
115
(
18 Edw
4)
249
Commonwealth v. Bowen
91
(
3 Hen.
7)
41
R. V. Boyes
535
(
14 Hen
T)
20
R. V. Bradford
2
(
21 Hen
7)
43
R. V. Bradshaw
131
R. V. Ardley
331
R. V. Brown
112
R. V. Ashwell
292
R. V. Bruce
136
Atcheson v. E
veritt
4
R. V. Bryan
328
Attorney General v. Bradlaugh
7
R. V. Bunkall
231
J2
vm
J'iidex of Cases.
PAGE
PAGE
R. V. Burford
436
R.
V.
Dudley
61
R. V. Burton (I)
50
R.
V.
DuflFy
379
(II)
122
R.
V.
Dyson
89
E. V. Butler
217
R. V. Button
342
E.
0.
R.
V.
Edwards
247
The Carrier's Case
223
R.
V.
Egginton
260
Carver v. Pierce
238
R.
V.
ElUs
479
E. V. Gassy
169
R.
V.
Inhabitants of Eriswell
495
R V. Caton
119
R.
V.
Errington
104
Causey v. State
281
F.
E. V. Chappie
82
E. V. Charnoch
379
R.
V.
Faulkner
152
E, V. Cheesenaan
85
R.
V.
Featherstone
274
E. V. Cherry
218
R.
V.
Fenton
117
E. V. Chissera
217
R.
V.
Finney
120
E. V. Closs
184
R.
V.
Fisher
475
Clutterbuck v. Chaflfers
438
Doe dem. Fleming v.
Fleming
458
Cockcroft V. Smith
149
R.
V.
Foley
241
E. V. Cooper (I)
138
The
Forester's Case
238
(II)
333
R.
V.
Forster
142
(III)
470
R.
V.
Foster
417
The State v. Cooper
176
R.
V.
Foulkes
309
E. V. Cope
410
R.
V.
Francis
492
Coppen V. Moore
454
R.
V.
Franklin
118
Cotton V. James
510
R.
V.
Frost
374
E. V. Cresswell
460
R.
V.
Fursey
384
R. V. Crowhurst
470
E. V. Crump
284
G.
E. V. Cruse
66
R.
V.
Gale
316
E. V. Cullum
311
R.
V.
Gamlen
54
E. V, Curgerwen
426
R.
V.
Gardiner
178
R
V.
Gibbons
524
D.
R.
V.
Gilbert
353
R. V. Dalloway
134
R.
V.
Gill
398
E. V. Damaree
371
R.
V.
Gloster
518
R. V. Daniel
2
R.
V.
Gordon
326
R. V. Dant
126
R.
V.
Great North oi
England
R. V. Davis (I)
160
Ry Co.
69
(II)
172
Green v. Godd.ird
147
R. V. Davitt
380
R.
V.
Grey
105
R. V. De Berenger
399
R.
V.
Griffith
73
R. V. Dingley (or Bicgley)
177
R.
V.
Gruncell
359
R. V. Dobbs
176
United States v. Quiteau
48
R. V. DriscoU
151
Keep
era of the Liberties of Eng-
Du Bost V. Bereaford
497
and V. Qwinn
416
Index of Cases.
IX
R. V. Haines
R. V. Hall
R. V. Halloway
R. V. Hammond
The State v. Hardie
The Harlot's Case
R. V. Harris (I)
(11)
R. V. Harrison
R. V. Hart
R. V. Harvey
R. V. Hassall
R. V. Haynes
R. V. Hayward
R. V. Hazelton
R. V. Hazy
R. V. Hehir
R. V. Hench
R. V. Hensey
R. V. Hewlett
R. V. Hickman
R. V. Higgins
R. V. HiU
R. V. Hilton
R. V. Hobson
R. V. Hodgson
R. V. Hoggins
R. V. Holden
R. V. Holland
R. V. Holloway (I)
(II)
R. V. Governor of Holloway
R. V. Hook
R. V. Horsey
Hoskins v. Tarrance
Howel's Case
R. V. Huggius
R. V. Hughes
R. V. Hull
R. V. Hunt
J.
R. V. Jackson (I)
(II)
R. V, James (I)
(II)
PAGE
R. V. Jarvia
PAOB
525
167
R. V. Jenkins
515
280
R. V. Jennison
324
103
R. V. Johnson (1)
171
411
(H)
498
123
JoUey V. Taylor
494
92
R. V. Jones (I)
28
154
(II)
200
163
(III)
237
274
(IV)
322
441
(V)
428
214
R. V. Journeymen Tailors of
227
52
Cambridge
404
321
K.
336
471
R. V. Kennett
396
300
R. V. Kew
135
264
R. V. Kilham
347
369
R. V. Knight
130
150
R. V. Knight and Roflfey
177
93
L.
83
208
R. V. Langley
437
133
R. V. Langmead
464
453
R. V. Lapier
222
202
R. V. Latimer
144
314
R. V. Lee
323
418
Le Mott's Case
169
93
R. V. Leonin
143
285
R. V. Levett
26
288
R. V. Lewis
195
229
R. V. Lillyman
503
422
Lincoln v. Wright
490
109
R. V. Lloyd
527
239
R. V. Lowe
132
139
35
M.
173
R. V. Macdaniel (I)
97
125
(II)
259
388
McDonnell v. Eva.ns
492
R. V. M-'Grath
262
R. V. M'^Growther
56
235
R. V. M'Kearney
166
421
R. V. Macklin
100
39
R. V. M'Naughten
43
81
R. V. Maddy
111
Index of Cases.
PAGE
PAGE
Makin v. Att, Gen. for New
R. V. Partridge
469
South Wales
483
The Case of Peacocks
250
Maltby v. Christie
506
R. V. Pembliton
157
E. V. Manley
78
R. V. Perry
245
E. V. Manning
446
E. V. Peters
279
R. V. Marcus
205
R. V. Pinchbeck
355
R. V. Markuss
124
R. V. Pitman
213
E. V. Martin (I)
137
Commonwealth v. Presby
13
(II)
161
Lord Preston's Case
377
(III)
199
Poole V. Dicas
514
(IV)
339
R. V. Pratt
542
(V)
344
Price V. Earl of Torrington
514
R. V. ^Masters
319
R. V. Prince
21
R. V. Mastin
77
Hugh Pyne's Case
377
R. V. Mead
519
R. V. PyweU
409
Mead V. Young
197
R.
R. V. Meakin
54
R. V. Medland
236
R. V. Reed
287
R. V. Middleton
266
R. V. Rees
133
R. V. Mills
340
A Resolution
164
Commonwealth v. Mink
110
>»
173
Monson v. Tussaud's Ltd.
434
»
249
Morris v. MiUer
459
Reynolds v. United States
31
R. V. MuDslow
432
E. V. Richards
2
R. V. Murphy
338
R, V. Richardson
448
R. V. Mui-ray
318
R. V. Eigmaidon
122
E. V. Riley (I)
179
N.
(II)
289
R. V. Nattrass
156
E. V. Eing
88
R. V. Neale
394
E. V. Eitson
188
R. V. Negus
306
E. V. Eoberts
409
R. V. Nehuff
1
E. V. Eobinson
357
Neile v. Jakle
509
E, V. Eose
140
R. V. NeiU
481
E. V. Eough
250
R. V. Newman
438
E. V. Eowlaud
415
R. V. Nutbrown
164
E. V. Eowton
528
E. V. Eussett
349
0.
E. V. Rust
174
O'Neill V. Reed
508
Osborn v. Veitch
150
S.
R. V. Owen
42
E. V. Salisbury
102
P.
Samson v. Yardley
494
E. V. Saunders
81
Parkin v. Moon
491
E. V. Sawyer
94
Parmiter v. Coupland
444
E. V. Scully
139
E. V. Parnell
412
E. V. Searing
244
R. V, Parsons
408
E, V. Serne
106
Index of Cases.
XI
PAGE
u.
R. V. Seward
405
PAGE
R. V. Sharpless
212
Usill V. Hales
442
Sherras v. De Rutzen
32
R. V. Shickle
251
V.
R. V. Simson
219
R. V. Vaufrhan
375
R. V. Slingsby
452
o
Vertue v. Lord Clive
401
Small's Case
iSmith 0. Dear
143
13
R. V. Villensky
360
R, V. Vincent
391
R. V. Smith (I)
60
R. V. Yoke
488
(II)
65
(III)
168
W.
(IV)
186
73 \ /
(V)
(VI)
R. V. Starling
214
R. V. Wade
283
509
R. V. Walker
450
403
R. V. Walsh
220
R. V. Stewart
354
Warren v. Greenville
511
R. V. Streeter
367
R, V. Wenmouth
166
R. V. SuUens
320
Wheeler v. Whiting
148
R. V. Sullivan
116
R. V. Wild
116
R. V. Swiudall
74
R. V. Wiley
361
R. V. Wilkes
541
T.
R. V. Wilkinson
253
R. V. Thistlewood
372
R. V. Williams (I)
265
R. V. Thomas
60
(II)
322
Thomas v. David
544
Williams v. E. India Co.
472
R. V. Thompson (I)
163
Williams v. Innes
507
(11)
221
R. V. Willshire
429
(III)
521
R. V. Wilson (I)
209
Thompson v. Trevanion
497
(II)
313
R. V. Thorp
404
R. V. Wilson and Martin
348
R. V. Thurborn
276
R. V. Withers
534
R. V. Tolson
15
R. V. Woodward
364
R. V. Towers
95
R. V. Townley
255
Y.
R. V. Tm-ner
474
R. V. Yend
468
R. V. Tyler
57
R. V. Yewin
543
CONTENTS.
PART I.
GENERAL PRINCIPLES OF CRIMINAL LIABILITY.
SECTION I.
THE DISTINCTION BETWEEN CIVIL AND CRIMINAL WRONGS.
Pi
Criminal proceedings distinguished from
actions of contract .....•••
actions of tort ...•••••
penal actions .....•••
SECTION IL
THE MENTAL ELEMENT IN CRIMINAL LIABILITY.
The degree of Mens Rea usually requisite
Ignorance ....••
A lesser Mens Rea sometimes sufficient
Master and Servant
Infancy ....
Insanity ....
Intoxication ....
Duress, and Official Subjection
Necessity ....
Coverture ....
Corporations ....
13
26
32
35
41
43
54
56
61
64
69
xiv Contents.
SECTION III.
■L
MODES OF PAETICIPATION IN A CRIME.
PAGB
Principals in first aud second degrees . . . . . 73
Accessory before the fact ....... 78
Accessory after the fact ....... 82
SECTION IV.
INCHOATE CRIMES.
Incitements , 83
Attempts .......... 85
PART II.
DEFINITIONS OF PARTICtTLAR CRIMES.
SECTION I.
SUICIDE 89
SECTION II.
MURDER AND MANSLAUGHTER.
Chapter I. The External Act.
The King's Peace 91
The cause of death ....... 92
Chapter II. The Mental State in Murder.
(A) Intent to kill 100
(B) Intent to do unlawful and dangerous act . 103
(C) Unlawful and dangerous excess in lawful act . 105
(D) Intent to commit a felony 106
Contents. xv
Chapter III The Mkntal State in Manslaughter.
PAGE
(A} Intent to kill or do grievous bodily harm, but on
sudden provocation Ill
(B) Intent merely to hurt . . . . . . 116
(C) Mere negligence 120
SECTION III.
HOMICIDES THAT AEE NOT CHIMES . . 136
SECTION IV.
STATUTOEY OFFENCES AGAINST THE PEBSON . 144
SECTION V.
COMMON ASSAULTS . . , 146
SECTION VI.
MALICIOUS OFFENCES AGAINST PKOPEETY . 152
SECTION VII.
BUEGLARY.
Chapter I. The Place 160
Chapter II. The Breaking 165
Chapter III. The Entry 172
Chapter IV. The Intent 175
SECTION VIII.
HOUSEBEEAKING .... 179
SECTION IX.
FOEGEEY.
Chapter I. The Instrument , 179
Chapter II. The Forging 188
Chapter III. The Intent 202
xvi Contents.
SECTION X.
LAECENY.
Chapter I. Takixcj. pa«b
Actual change of possession . . . . . . 211
Constructive taking, by a custodian . . . . 216
Chapter II. Carrying away 218
Chapter III. Appropriation by Bailees.
At common law (bailees breaking bulk) . . . 223
Statutory larceny by bailees ...... 227
Chapter IV. The Subject-matter.
Chattels savouring of llealty ..... 238
Chattels severed from Realty . . . . . 241
Chapter V. The Value 244
Chapter VI. The Ownership.
Ownerless things ........ 249
Ownership of animals ....... 249
Ownership created by the theft itself . . . . 255
Chapter VII. The Claim of Right.
Consent of Owner ........ 259
Consent obtained by trick or mistake . . . . 264
Claim as a Finder ....... 276
Claim to be Owner ....... 280
Chapter VIII. The Intention.
Intention to appropriate ...... 284
Delivery under Mutual Mistake 292
SECTION XI.
EMBEZZLEMENT.
Unknown at Common Law ...... 304
The Statutory offence : —
Chapter I. Who is a Servant? 306
Chapter II. What can be Embezzled? .... 311
Chapter III. Peoof of Appropriation .... 322
Contents.
XVII
SECTION XII.
FALSE PRETENCES.
Chapter I. The Mere Pretence.
Pretence or Promise
Pretence as to lutention
Puffing ....
Implied pretences .
Chapter II. The Obtaining
Chapter III. The Right Obtained.
Ownership must pass .....
And not merely conditionally
Chapter IV. The subject-matter of the Right
323
326
328
333
339
347
349
355
SECTION XIII.
BECEIVING STOLEN GOODS .
359
SECTION XIV.
HIGH TREASON.
Compassing the King's death
Levying war against the King
Adhering to the King's enemies
What constitutes an Overt act
369
370
375
377
SECTION XV.
TREASON-FELONY
379
SECTION XVI.
RIOT AND UNLAWFUL ASSEMBLY.
Riots at Common Law and Riots by Statute
Riot distinguished from Unlawful Assembly
What renders an Assembly unlawful .
Magistrates' powers and duties ....
384
387
388
394
XVUl
Contents.
SECTION XVII.
CONSPIEACY.
Mere agreement suffices . . . .
The unlawful act agreed upon
How conspiracy is proved . . . .
SECTION xvin.
PERJURY.
Origin of the crime . . . . ,
Must be committed in judicial proceedings ,
Materiality of the false statement.
How perjury is proved . . . . .
PAQR
398
399
408
415
416
418
421
SECTION XIX.
BIGAMY .
423
SECTION XX.
LIBEL.
The nature of a libel ......
432
Peculiarities of Criminal libel ....
436
Absolute privilege
440
Qualified privilege
441
Functions of Judge and of jury ....
444
PART III.
MODES OF LEGAL PROOF.
SECTION I.
PRESUMPTIONS.
(A) Against commission of any Crime
(B) Against immorality ....
(C) Omnia praesumuntur rite esse acta
(D) Of intending natural consequences of act
(E) Of continuance of existing state of things
(F) From possession of recently stolen goods
446
458
460
463
464
464
Contents,
SECTION II.
THE BURDEN OF PROOF.
Is usually on affirmant ........
Except in accusations of a negative crime ....
SECTION III.
EVIDENCE.
Chapter I. The" Importance of observing the Rules op
Evidence .....
Chapter II. The Relevancy op Evidence.
Evidence confined to points in issue
Evidence of other crimes is sometimes relevant
Chapter III. Leading Questions
Chapter IV. Proof of Writings
Chapter V. Hearsay.
Hearsay inadmissible .....
Exceptions :
1. Complaints ....
2. Admissions ....
3. Statements made against interest
4. Statements made in course of duty
5. Dying declarations
Chapter VI. Confessions ....
Chapter VII. Evidence of Character
Chapter VIII. Privilege ....
Chapter IX. Accomplices
Chapter X. Discrediting a witness .
Index
XIX
PAGE
471
471
475
477
479
490
492
494
503
506
511
5J4
515
521
528
534
539
543
545
SELECT CASES ON CEIMINAL LAW.
PAUT I.
GENERAL PRINCIPLES OF CRIMINAL LIABILITY.
SECTION I.
THE DISTINCTION BETWEEN CIVIL AND CRIMINAL WRONGS.
[^Damnum sine injuria.^
ANONYMOUS.
King's Bench. 1695. 3 Salkeld 187.
An indictment for scolding was quashed, because it was not said to
have been ad magnam perturbationem pacis.
[Breach of Contract."]
REGINA V. NEHUFP.
Queen's Bench. 1706. 1 Salkeld 151.
Motion for a certiorari to remove an indictment found at the Old
Bailey for a client. The defendant had borrowed £600 from a feme
covert, and promised to send her some fine cloth and gold dust as
a pledge. He sent no gold dust but some coarse cloth worth little
or nothing. ...The Court granted a certiorari; because the fact was not
a matter criminal (for it was the prosecutor's fault to repose such
a confidence in the defendant), and it was an absurd prosecution.
2 Select Cases on CHminul Laic. [part l
[Breach of Contract.']
REX V. WHEATLEY.
Krao'8 Bench. 1760. 1 W. Bl. 273.
The defendant was indicted for that he, being a common brewer,
and intending to defraud one Richard Webb, delivered to him sixteen
gallons (and no more) of amber beer for and as eighteen gallons [which
latter quantity he had contracted to deliver] ; and received 15*-. for the
sama He was convicted.
Morton moved in arrest of judgment. This was not an indictable
offence ; being merely a breach of civil contract, and not a selling by a
false Measure, such as shows a general plan of imposing on the public.
Dexnison, J. ...What is it to the public whether Richard Webb
has or has not his eighteen gallons of amber beer ? . . .
Judgment arrested.
[EDrroB's Note. Similarly in Rex v. Bradford (3 Salkeld 189, a.d. 1697), where
the defendant had broken hi.s contract to cure the prosecutor's ulcerated throat, it
was held that, as no public interest was concerned, the only remedy was by civil
action. Probably all these prosecutors were led to take criminal proceedings by the
fact that in these they themselves would be admissible witnesses but not (as the
law then stood) in civil proceedings. And in Reg. v. Nehuff the prosecutrix had
the farther disability of coverture.]
[Tort.]
REGINA V. DANIEL.
Queen's Bench. 1704. 3 Salkeld 191.
The defendant was indicted for enticing an apprentice to depart
from his master and absent himself from his service....
Holt, C. J., held that the seducing an apprentice to absent him-
self was not indictable, because it doth not affect the public...
[See also Reg. v. Ciieeseman, infra, p 85.]
[I'orl committed hy many aijainst manyJ\
REX V. RICHARDS.
Kino's Bench. 1800. 8 Duhnford and East 634.
This waa an indictment against six defendants for not repairing a
SECT. I.] Rex V. Richards. 3
private road constructed by virtue of an Act of Parliamont for draining
and dividing a certain moor, called King's Scdgeraoor, in the county of
Somerset The defendants pleaded not guilty. On the trial at the
assizes at Bridgewater, before Grose, J., the jury found a special verdict,
in substance as follows : — That the commissioners named in the said
Act by their award set out the said private road and drove- way as
described in the indictment ; that the commissioners directed that
it should be for the use of the several owners of the tenements of the
nine parishes mentioned in the indictment; and that it should be
repaired by the several owners of the tenements in six of those parishes.
That the said road was ruinous and out of repair : That the six defend-
ants are severally and respectively owners of certain tenements in the
said several six parishes or hamlets. ...That the defendants had not
repaired the said drove-way .... That there are five hundred tenements
in the said nine parishes, of which the owners are entitled to the use of
the said drove-way And two hundred and fifty owners of tenements
in the said six parishes That from the time of making the said
award, all persons willing to pass and repass over the said drove-way,
have at their free will and pleasure passed and repassed over the same
on foot, and with cattle and carriages : That the said drove-way com-
municates at both ends with the king's highway. . . .
Praed, for the prosecutor, argued, That this, though a private
road, was set out by virtue of a public Act of Parliament, under which
the defendants were directed to repair it; that consequently the not
repairing was a disobedience to a public statute, and therefore the
subject of an indictment. That this non-repair might be considered to
a certain degree as concerning the public... because it appeared by the
special verdict that there were no less than 250 persons who were
liable to the repair of this road, and the difficulty of suing so many
persons together was almost insuperable.
But the Court interposed, and said that, however convenient it
might be that the defendants should be indicted, there was no legal
ground on which this indictment could be supported. That the known
rule was, that those matters only that concerned the public were the
subject of an indictment ; and the road in question, being described to
be a private road, did not concern the public, nor was of a public
nature, but merely concerned the individuals who had a right to use
it. That the question was not varied by the fact that many individuals
were liable to repair ; or by the fact that many others were entitled
to the benefit of it, for each party injured might bring his action
against those on whom the duty was thrown. That the circumstance
of this road having been set out under a public Act of Parliament,
1—2
4 Select Cases on Criminal Law. [part l
did not make the non-repair of it an indictable ofience; for many
public Acts are passed which regulate private rights, but it never was
conceived that an indictment lay on that account for an infringement
of such rights. That here the Act was passed for a private purpose,
that of dividing and allotting the estates of certain individuals. Tliat
even if it were true that there was no remedy by action, the con-
sequence would not follow that an indictment could be supported ; but,
in truth, the parties injured had another legal remedy [i.e. by action].
Judgment for the defendants.
\Penalty sued for hy a private informer.]
ATCHESON V. EVERITT.
King's Bench. 1776. 1 Cowp. 382.
This was an action of debt to recover penalties, under the statute
2 Geo. II., c. 24, s. 7, against bribery\ Plea, not guilty. Verdict for the
plaintiff. On behalf of the defendant, it was moved that there might
be a new trial ; because a Quaker had been received as a witness upon
his afl&rmation, and it was objected that, this being a criminal cause,
his evidence ought not to have been received.
Lord LIansfield. I vsdsh that, when the Stat. 7 and 8 Wm. III.,
c. 34, was made, the aflirmation of a Quaker had been put on the same
footing as an oath, in all cases whatsoever : and I see no reason against
it, for the punishment of the breach of it is the same. In this Act,
however, there is an exception to their being admitted as witnesses in
criminal causes. The question therefore is. What the statute means by
the words "criminal causes"?... In cases where an action and an
indictment both lie for the same act, as in assault, imprisonment,
fraud, etc., a Quaker is an admissible witness in the action, though not
on the indictment.
Actions for penalties are, to a variety of purposes, considered civil
suits ; e.g. they may be amended at common law. To be sure, the action
in tJiis case is not given only to recover a penalty but is attended like-
wise with disabilities. Therefore, it partakes much of the nature
of a criminal cause. Moreover, the offence itself is not merely malum
prohibitum, by statute, but it was indictable at common law.
1 The bribed elector forfeiting £500 to any one wlio sued.
SECT. I.] Atcheson v. EveritL 5
Morris, for defendant. Till the statute 7 and 8 Wm. III., there was
no doubt about not receiving a Quaker's affirmation. But that statute,
in compliance with the prejudices of this sect, broke in upon the rule of
the common law, partly in favour to them, and partly for the general
benefit of the subject. At the same time the legislature drew the line,
by providing " that nothing should enable the affirmation of a Quaker
to be received in any criminal cause": and another statute, 22 Geo. II.,
c. 30, sect. 3, says, " in any criminal case." But the Court has already
decided that ' cause ' and ' case ' are the same. The question therefore
is, Whether the present is a criminal case or not ? Crimes and punish-
ments are necessary attendants on each other. Punishment is a legal
term, and is understood to be in consequence of some offence. The
charge against the defendant is a charge of bribery. The statute
upon which the action is brought, treats bribery as an 'offence,'
throughout, and the person committing it is an 'offender.' Conse-
quently it considers bribery as a crime. It will be said, on the
contrary, that this action, to recover the penalty prescribed by the
statute, is merely a civil action. That is not so. For bribery was
a crime at common law : and the penalty given by the statute is only
part of the fine due at common law to the public in satisfaction of the
offence : besides which, the statute inflicts additional pains and penalties
which are also incurred by the judgment.
With respect to indictments, and all prosecutions which upon the
face of them are manifestly criminal suits, there can be no dispute.
The question therefore is. Whether it is the form alone, or the sub-
stance, that constitutes a criminal action ? There are two cases to this
purpose. In 2 Str. 1219, a rule for quashing an appointment of over-
seers was held to be a civil action, and a Quaker's affirmation of service
of the rule admitted accordingly. But in 2 Str. 856, which was the
case of an appeal of murder, though the appellant had a right to
release the appellee in every stage of the cause, a Quaker's evidence
was rejected ; because in substance it was a criminal prosecution. And
it matters not whether the offence is of the greatest or least magnitude :
If the end of the action is merely damages, a Quaker's affirmation is
admissible : but wherever the end is punishment, as in this case, it is
not. Here the penalty is not given as damages, but as part of the
punishment; and even if it were, stLU this is a criminal action in
respect of the additional pains and disabilities incurred by the judg-
ment. And this is an answer to the objection, that if the party were
arrested and imprisoned for the penalty, the action so much partakes
of a civil suit, that the defendant might be discharged under an Act of
insolvency. Por, supposing he could be so discharged, the Insolvent
6 Select Cases on Criminal Law. [part i.
Act could not remove the further pains and disabilities. Therefore,
both upon the reason of the thing, and the authorities in the books,
this is a criminal action, and consequently a Quaker's affirmation is not
admissible.
Eooke, for plaintiff. The great question is, Is this a criminal cause ?
The criterion of distinction between a criminal and a civil cause is, the
form of the proceeding, not the offence which occasions it. An assault
and nuisance may be prosecuted either by action or by indictment ; in
the one case, a Quaker's affirmation may be received ; in the other, not.
The offence of bribery may be prosecuted eitlier by action or indicts
ment. The plaintiff has chosen to prosecute by action, and in so doing
he has proceeded civilly, not criminally. This cause is in its form an
action of debt for a special cause, at the suit of a private subject. The
plaintiff does not sue tarn pro rege qtuim pro seij)dO ; he sues in his own
name only, and recovers the whole penalty. The declaration states,
that the defendant owes the money ; and that thougli often requested,
he refuses to pay. The ground of complaint is, the non-payment of
a debt. The action is founded upon that implied contract, which every
subject enters into with the State to observe its laws. The plea is,
nil debet; not that the defendant is not guilty. The judgment is to
recover the debt ; and the party imprisoned for non-payment may have
the benefit of the Insolvent Act. Thus far, then, the wliole is merely
a civil proceeding. But it is said, there is a disability incurred by the
judgment, and therefore it is a criminal proceeding. To this it may be
ansNTered, that the disability is no part of the judgment, but only a con-
sequence of it : the form of tlie proceeding is not affected by it. The
being restrained from suing for a debt beyond time of limitation, is as
much a disability, as the being restrained from voting ; yet there is
no doubt but that a Quaker may give evidence to prove a debt to be
above six years' standing.
Lord Mansfield Is the present a criminal cause? A Quaker
appears, and offers himself as a witness ; can he give evidence without
being sworn? If it is a criminal case, he must be sworn, or he cannot
give evidence. Now there is no distinction better known, than the
distinction between civil and criminal law ; or between criminal prose-
cutions and civil actitnis. Mr Justice Jilackstone, and all modern and
ancient writers upon the subject, distinguish between them. Penal
actions were never yet put under the head of criminal law or of crimes.
To make this a criminal cause, the construction of the statute must be
ext<Mided by equity. It is as much a civil action as an action for
money had and received. The legislature, when they excepted to the
evidence of Quakers in criminal causes, must be understood to mean
SECT. I.] Atcheson v. Everitt. 7
causes technically criminal ; and a different construction would not
only be injurious to Quakers, but prejudicial to the rest of the King's
subjects who may want their testimony
No authority whatever has been mentioned on the other side ; nor
any case cited where it has been held that a penal action is a criminal
case; and perhaps the point was never before doubted. The single
authority mentioned against receiving the evidence of the Quaker in
tliis case is, an appeal of murder \ But that is only a diflerent mode of
prosecuting an offender to death ; instead of proceeding by indictment
in the usual way, it allows the relation to carry on the prosecution for
the purpose of attaining the same end which the King's prosecution
would have had if the offender had been convicted, namely, execution.
And therefore, the writers on the law of England class an appeal of
murder in the books under the head of criminal cases. Co. Litt. 284,
287.
In the case of Rex v. Turner* on a motion to quash an appoint-
ment of overseers, the Court said, " though the prosecution is in the
King's name, the end of it is a civil remedy," and very properly allowed
the Quaker's affirmation to be read....
The three other Judges concurred.
Rule discharged
[Penalti/ sued for by a 'public official.^
THE ATTORNEY GENERAL v. BRADLATTGH.
Court of Appeal. 188.5. L.R. 14 Q.B.D. 667.
Information in the Queen's Bench Division by the Attorney
General to recover penalties of £500 each against C. Bradlaugh for
voting as a member of the House of Commons without complying with
the provisions of the Parliamentary Oaths Act, 1866 ^
1 2 Str. 856. " 2 Str. 1219.
' 29 Vict. c. 19, sect. 3. " The oath hereby appointed shall in every Parliament
be solemnly and publicly made and subscribed by every member of the House of
Peers at the table in the middle of the said House before he takea his place in the
said House, and whilst a full House of Peers is there with their Speaker in hie
place ; and by every member of the House of Coirmions at the table in the middle
8 Select Cases on Criminal Lair. [part i.
The informatirin was tried at bar in the Queen's Bench Division, in
June, 1S84, before Lord Coleridge, C. J., Grove, J., and Huddleston, B.,
and a special jury.... The jury found that the Speaker was sitting in
the chair at the time when the defendant made and subscribed the
oath ; but that he was sitting for the purpose of preparing or correcting
notes which he was about to address to the defendant, and he had
not resumed his seat for the purpose of allowing the defendant to
make and subscribe the oath. The jury further found that upon the
11th of February, 1884, the defendant had no belief in a Supreme
Being, and was a person upon whose conscience an oath, as an oath,
had no binding force; and, that the House of Commons had full
cognizance and notice of these matters by reason of the avowal of
the defendant. The jury also found that the defendant did not take
and subscribe the oath according to the full practice of Parliament;
and that the defendant did not take and subscribe the oath as an
oath. Upon these findings the Queen's Bench Division, sitting for
the trial at bar, ordered a verdict to be entered for the Crown upon
the first, fourth, and fifth counts of the information, for separate
penalties of £500....
The Court of Appeal granted a rule for a new trial or to enter
judgment for the defendant, on the ground of misdirection and mis-
reception of evidence....
Sir H. James, A.G., and Sir E. Giffard, Q.C. {Sir F. Herschell, S.G.,
and R. S. Wright, with them), for the Crown. There are two pre-
liminary objections to the hearing of this appeal. The first is, tliat
the information is a " criminal cause or matter " within the meaning
of the Supreme Court of Judicature Act, 1873, s. 47, and therefore
that there can be no appeal to this Court.
This is an information filed by the Queen's Attorney General in
order to recover a penalty; and the nature of informations of that
of the said House, and whilst a full House of Commons is there duly sitting,
with their Speaker in his chair, at such hours and according to such regulations
as each House may by its Standing Orders direct."
Section 5. " If any member of the House of Peers votes by himself or his
proxy in the House of Peers, or sits as a peer during any debate in the said House,
without having made and subscribed the oath hereby appointed, he shall for every
such offence be subject to a penalty of five hundred pounds, to be recovered by
action in one of Her Majesty's Superior Courts at Westminster ; and if any member
of the House of Commons votes as such in the said House, or sits during any
debate after the Speaker has been chosen, without having made and subscribed the
oath hereby appointed, he shall be subject to a like penalty for every such offence,
and in addition to such penalty his seat shall be vacated in the same manner as if
he were dead."
SECT. I.] The Attorney General v. Bradlawjh, 9
kind was much discussed in Attorney General v. RncUoJf^. In that
case the Court of Exchequer was equally divided; two of the jud;?e.s,
Piatt and Martin, BB., holding that an information (which in that
case was for breach of the laws as to customs), was not a criminal
proceeding, and two of them, Pollock, C.B., and Parke, B., holding
that it was. It is true that in that case some stress was laid on the
fact that the offender might be summarily convicted before justices;
but this circumstance was really immaterial; under 11 and 12 Vict.
c. 43, justices have power to convict summarily for both civil and
criminal offences. It is submitted that the view of Pollock, C.B., and
Parke, B., was correct, and that informations filed by that Attorney
General in order to recover penalties are criminal proceedings. More-
over, to consider the question from a different point of view, although
the penalty imposed by the Parliamentary Oaths Act, 1866, s. 5,
might perhaps have been recovered by an action of debt, nevertheless
the wrongful act or offence, of which the defendant has been con-
victed, must be deemed to be of a criminal nature ; for by s. 3 of
the Parliamentary Oaths Act, 1866, a member of Parliament is liable
to be indicted if he does not take the oath of allegiance, and the
remedy under s. 5 may be regarded as merely cumulative. Some
wrongs are both of a civil and criminal nature, such as libel and
assault, and it is erroneous to contend that the existence of a civil
remedy causes a wrongful act to become of a civil nature. There is
no distinction in principle between this case and Mellor v. Denham' ;
the only difference is that in that case the appeal was from the refusal
of justices to convict for contravention of the bye-laws of a school
board. Mellor v, Denham was followed by Reg. v. Whitechurch^. It
is true that the penalty is to be recovered "by action": Parliamentary
Oaths Act, 1866, s. 5 ; but the word "action" is of wide signification,
and includes even criminal proceedings ; this is plain from Com. Dig.
Action (D, 1) Placita Coronae, and also from Bacon's Abridgment,
Actions in General (A.), where it is said that "actions are divided
into criminal and civil." These passages are cited and relied upon
by the Earl of Selborne, L.C., in Bradlaugh v. Clarke*. The Queen
by her prerogative can recover the whole of a penalty in any Court,
even although a moiety be expressly given to a common informer :
Ilex v. Hymen^.
Brett, M. R. A majority of the Court are of opinion tliat the
present information is not a "criminal cause or matter" within the
1 10 Ex. 84. ••^ 5 Q.B.D. 467.
8 7 Q.B.D. 534. ■» 6 App. Cas. p. 3t;2.
5 7 T.R. 536.
10 Select Cases on Crimmal Law. [i'aki i.
meaning of the Supreme Court of Judicature Act, 1873, a 47. ...It has
been at diri'erent times during this argument contended before us on
both sides, for diderent purposes, that the 3rd section of the Parlia-
mentary Oaths Act, 1866, imposes on every member a legal obligation
to take and subscribe the oath, and that, if a member does not take
and subscribe the oath in the manner therein set forth, an indictment
will lie against him on that section alone as for a misdemeanour, and
that the penalty in the 5th section is cumulative. That was at
one time argued by the Attorney General in order to shew that the
acts complained of in the information were criminal, and that no
appeal would lie. It was afterwards argued by the defendant in this
case that the same construction should be put upon the statute, for the
purpose of shewing, at all event-s, a great hardship, namely, that the
3rd section would put upon him an obligation to take the oath,
and that the 5th section, if construed in the way insisted upon by the
Crown, would inflict upon him a penalty of £500, for his voting after
he had then taken the oath thus forced upon him. I think that the
Act of Parliament must be read as a whole, and that the two sections
cannot be treated separately ; therefore it seems to me that the true
construction of the Act of Parliament is that it imposes a new obliga-
tion not known to the common law, and that with regard to a non-
performance of that obligation it enacts a certain consequence. Wher-
ever an Act of Parliament imposes a new oljligation, and in the same
Act imposes a consequence upon the non-fultilment of that obligation,
that is the only consequence. Therefore, it seems to me that the only
consequence of voting as a member without having taken the oath in
the manner appointed is, that the member becomes liable to a penalty.
If that be so, no indictment wiU lie, and, as far as my judgment goes,
nothing in the nature of a criminal proceeding can be taken upon
this statute. The recovery of a penalty, if that is the only consequence,
does not make the prohibited act a crime. If it did, it seems to me
that that distinction which has been well known and established in
law for many years between a penal statute and a criminal enactment,
would fall to the ground, for every penal statute would in\olve a
crime, and would be a criminal enactment. In construing this Act of
Parliament I should on that ground alone say that no crime is enacted
by this Act. But there is more than that : this penalty of £500 is,
in the phraseology of this Act of Parliament, to be recovered "by
action in one of Her Majesty's superior courts at "Westminster." Now,
it may be true to say, as appears from the passage cited from Comyn's
Digest (Action D. 1), that in some cases "actions" will include indict
nients or will include criminal informatioiiic In some cases it may.
SECT. I.] The Attorney General v. Bradlawjh. 11
but the question is whether in this Act of Parliament it does, and
when the legislature is found using the words, "by action," that word
construed according to its ordinary meaning does not seem to me to
include an indictment or a criminal information. But there is more
than that. The words are " by action in one of Her Majesty's superior
Courts at Westminster." Now, a criminal information never was
moved except in the Court of Queen's Bench. An information by the
Attorney General was also moved in the Court of Excliequer, but that
was a procedure for the purpose of recovering a debt, or for the purpose
of rectifying a trespass, or for the purpose of dealing with an injury
to the Crown in its particular capacity, and not merely as the repre-
sentative of the public. So that this argument seems to me to shew
that by the use of the words " by action," and by the still stronger
language " in one of Her Majesty's superior Courts " (which mean in
any one of Her Majesty's superior Courts) at Westminster, this offence
cannot be the subject matter of criminal information, and cannot be
the subject matter of indictment ; and that the only proceeding which
can be brought upon the statute, as the House of Lords has now
determined, is an information filed by the authority of the Attorney
General, and in his name, such as was formerly brought generally on
the revenue side of the Court of Exchequer. Now comes the question
whether an information by the Attorney General on the revenue side
of the Court of Exchequer is or is not a criminal proceeding in any
sense. In order to answer this question, we must consider Attorney
General v. Radloff. It is not binding on this Court ; it is a case in the
Court of Exchequer, and we are bound to exercise our own judgments
upon it. It is a case in which the judges were equally divided in
opinion, and, therefore, it could not bind any Court, but certainly could
not bind this Court. Two of the judges were of opinion that unless
there was something very peculiar in the Act of Parliament, such as
that it in terms enacted that it was to be a criminal matter, the pro-
ceeding on the revenue side of the Court of Exchequer for the recovery
of a penalty in the name of the Attorney General was not a criminal
proceeding. The other two were of opinion that it was. I will not go
into the reasons, but if I had been a member of the Court at that
time, I should have been of opinion in that case that an informa-
tion for a penalty on the revenue side of the Court of Exchequer
could not at any time, unless there were special and clear words in an
Act of Parliament saying it was so, be considered as a criminal pro-
ceeding'. If that be true, then it is said that we are met by the
1 [Editor's Note. It is now clear that such proceedings are not criminal ;
Rex V. Hammann, 3 Cr. App. K. 3.]
12 Select Cases on Criminal Law. [part l
judgment of the House of Lords in Bradlaugh v. Clarke, and that the
judgment of the House of Lords, particularly the judgment of Lord
FitzGerald, seems to shew that in this Act of Parliament, even though
we take the proceeding to be one which is the same as if it were
brought on the revenue side of the Court of Exchequer, still it is a
criminal matter. Now, that will partly depend on that judgment used
as a binding authority, and partly on the argument which has been
raised on the terms of this Act of Parliament itself. Reliance is
placed on these words: "He shall for every such offence," and it is said
that the use of the word " offence " shews that this is considered by
the legislature as a crime. What is the offence? The offence is not a
refusal to take the oath, it is not a declining to take the oath. What
" offence " means in the statute is a voting or sitting without having
taken or subscribed the oath. It is possible — I do not think it very
probable — that at the beginning of a Parliament a member may sit
or vote who from forgetfulness or ignorance has not taken the oath.
I mean a member who is in every sense capable of taking the oath, but
who accidentally, from forgetfulness or ignorance, sits or votes without
takin" the oath, without having any intention to break the Act, and
without having any intention to do anything forbidden by law.
I have no doubt that he would be liable to the penalty, for no question
of intent is introduced into this Act of Parliament. Now, to my mind,
it is contrary to the whole established law of England (unless the
legislation on the subject has clearly enacted it) to say that a person
can be guilty of a crime in England without a wrongful intent — with-
out an attempt to do that which the law has forbidden.... An act dime
without an evil intent must not be considered a crime, and therefore
the forbidden act in this statute, made liable to a penalty whether
done with or without an evil intent, is not to be a criminal act.
I am clearly of opinion that the proceeding under this Act of
Parliament by the Attorney General, although it is a proceeding which
could be taken only by him ' and not by a private individual, is in the
nature of a civil proceeding....
* [Editoe'b Note. For, as no man can sue for matters in which he has no
interest, a private person (e.g. a "common informer") cannot bring an action to
recover a Penalty which has been imposed for the protection of the public, unless
the Statute which created the penalty has said that he may do so. This Statute
not having said so, only the Crown could sue.]
SECT. I.] Smith V. Dear. 13
\^Butfor a crime any one may prosecute."]
SMITH V. DEAR.
King's Bench Division. 1903. 88 L. T. 665.
[Prosecution at petty sessions, under s. 23 of the Larceny Act,
1861, for having unlawfully killed a pigeon. Dear, after shooting the
pigeon, found marked on its wing the name of a Mr Packman ; and
then at once called on him and paid him 5s., the value of the bird.
But the National Homing Union of pigeon -fanciers induced one of its
members, Mr Smith, to prosecute Dear. Packman gave evidence for
the defence, saying that lie had never complained of Dear's act and was
(juite satisfied with the 5s. The magistrate held that a third party,
who had no rights in the pigeon, could not prosecute the killer of it.
Smith appealed.]
Lord Alverstonk, L.C.J... .As there is nothing in the Act to
limit to the owner of the bird the right to prosecute, any person can
prosecute.
SECTION IL
THE MENTAL ELEMENT IN CRIMINAL LIABILITY.
[il/ews rea is essential to crime.^
THE COMMONWEALTH v. PRESBY.
Supreme Court of Massachusetts. 1859. 14 Gray 65.
Indictment for assault and battery.
Hoar, J. The defendant, a police-ofBcer, arrested one Harford
for being intoxicated in a highway ; and committed him to the watch-
14 Select Cases on Criminal Law. [part l
house. For this arrest, he was indicted.... Police officers are empowered
by a Massachusetts statute to arrest without a warrant for the offence
of intoxication in a public place. And at the trial, the presiding
judge was asked to instruct the jury that " If Presby had reasonable
cause to believe at the time of the arrest that Harford was intoxicated,
then he was authorised in taking and retaining him." But it was
argued, for the Commonwealth, that if Harford was not intoxicated,
the statute would afford no justification for his arrest; because the
fact of intoxication, and not a suspicion or belief however reasonable,
is requisite to such justification. This may be true in regard to the
civil rights of the person whose liberty is invaded ; and in a civil
action, the wrongdoer must usually justify his act, or be held re-
sponsible But to constitute a criminal act there must, as a general
rule, be a criminal intent. The general doctrine is stated in Hale's
Pleas of the Crown that " where there is no will to commit an offence,
there can be no transgression." And ignorance of fact, if unaccompanied
by negligence, is one of the causes of exemption from criminal re-
sponsibility. Hale gives (1 P. C. 42) the illustration of a sentinel
firing at his commanding officer (who advances towards his post), under
the reasonable belief that he is an enemy.... Great caution should
certainly be used in admitting the excuse of ignorance or mistake;
so as to exclude from its protection those who do not exercise all
reasonable means to inform themselves before they commit an act
which is apparently an invasion of private rights and a breach of the
public peace.. ..But in the present case, the duty is made imperative
upon the officer to make the arrest if he finds an intoxicated person in
the street.... If the person whom he sees is really intoxicated, he must
arrest him or suffer the consequences of official misconduct. Now the
fact of intoxication, though usually easy to ascertain, is not in most
cases a fact capable of demonstration with absolute certainty. Suppose
a watchman to find a man in the gutter, stupefied and smelling very
strongly of spirituous liquors. The man may have fallen in a fit;
and some person may have tried to relieve him by the application of
a stimulant, and then have left in search of assistance. Or, in another
case, the person arrested may, for purposes of amusement or mischief,
have been simulating the appeaiance and conduct of drunkenness.
Is the officer to be held a criminal, if, using his best judgment and
discretion and all the means of information in his power, in a case
where he is called upon to act, he makes a mistake of fact and comes
to a wrong conclusion? It would be singular, indeed, if a man
deficient in reason .should be protected from criminal responsibility,
but another, who was obliged to decide upon the evidence before him,
SECT. II.] The Commo7iweaith v. Firsbt/. 16
and used in good faith all the reason and facullies which he had,
should be held guilty. We therefore feel bound to decide that...
if the defendant acted in good faith, upon reasonable and probable
cause of belief, without rashness or negligence, he is not to be re-
garded as a criminal because he is found to have been mistaken.
[Mens rea is essential to crime.^
THE QUEEN v. TOLSON.
Cro\vn Case Reserved. 1889. 23 Q.B.D. 168.
Case stated by Stephen, J., and reserved by the Court for the con-
sideration of all the judges.
At the summer assizes at Carlisle in 1888 the prisoner Martha Ann
Tolson was convicted of bigamy.
It appeared thnt the marriage of the prisoner to Tolson took place
on September 11, 1880; that Tolson deserted her on December 13,
1881 ; and that she and her father made inquiries about him and
learned from his elder brother and from general report that he had
been lost in a vessel bound for America, which went down with all
hands on board. On January 10, 1887, the prisoner, supposing herself
to be a widow, went through the ceremony of marriage with another
man. The circumstances were all known to the second husband, and
the ceremony was in no way concealed. In December, 1887, Tolson
returned from America.
Stephen, J., directed the jury that a belief in good faith and on
reasonable grounds that the husband of the prisoner was dead would
not be a defence to a charge of bigamy, and stated in the case that his
object in so holding was to obtain the decision of the Court in view of
the conflicting decisions of single judges on the point. The jury con-
victed the prisoner ; stating, however, in answer to a question put by
the judge, that they thought that she in good faith and on reasonable
grounds believed her husband to be dead at the time of the second
marriage. The judge sentenced her to one day's imprisonment.
The question for the opinion of the Court was whether the direction
was right....
Wills, J. The statute upon which the indictment was framed is
the 24 and 25 Vict. c. 100, s. 57, which is in these words: "Whoever,
16 Select Cases on Criminal Lair. [part i.
being married, shall marry any other person during the life of the
former husband or wife shall be guilty of felony, punishable with penal
servitude for not more than seven years, or imprisonment with or with-
out hard labour for not more than two years," with a proviso that
" nothing in this Act shall extend to any person marrying a second
time whose husband or wife shall have been continually absent from
such person for the space of seven years last past, and shall not have
been known by such person to be living within that time."
There is no doubt that under the circumstances the prisoner falls
within the very words of the statute. She, being married, married
another person during the life of her former husband, and, when she
did so, he had not been continually absent from her for the space
of seven years last past.
It is, however, undoubtedly a principle of English criminal law,
that, ordinarily speaking, a crime is not committed if the mind of the
person doing the act in question be innocent. "It is a principle of
natural justice and of our law," says Lord Kenyon, C. J., " that actus
non facit reum, nisi mens sit rea. The intent and act must both concur
to constitute the crime:" Fowler v. Paget'^. The guilty intent is not
necessarily that of intending the very act or thing done and prohibited
by common or statute law, but it must at least be the intention to do
something wrong. That intention may belong to one or other of two
classes. It may be to do a thing wrong in itself and apart from posi-
tive law, or it may be to do a thing merely prohibited by statute or by
common law, or both elements of intention may co-exist with respect to
the same deed. There are many things prohibited by no statute —
fornication or seduction, for instance — which nevertheless no one would
hesitate to call wrong ; and the intention to do an act wrong in this
sense at the least must as a general rule exist before the act done can
be considered a crime. Knowingly and intentionally to break a statute
must, I think, from the judicial point of view, always be morally wrong
in the absence of special circumstances applicable to the particular
instance and excusing the breach of the law, as, for instance, if
a municipal regulation be broken to save life or to put out a fire. But
to make it morally right some such special matter of excuse must exist,
inasmuch as the administration of justice and, indeed, the foundations
of civil society rest upon the principle that obedience to the law,
whether it be a law approved of or disapproved of by the individual, is
the first duty of a citizen.
Although prima facie and as a general rule there must be a mind at
fault before there can be a crime, it is nob an inflexible rule, and
1 7 T. E. 509, 514.
SECT. II.] The Queen v. ToUou. 17
a statute may relate to such a subject-matter and may be so framed as
to make an act criminal whether there has been any intention to break
the law or otherwise to do wrong or not. There is a large body of
municipal law in the present day which is so conceived. Bye-laws are
constantly made regulating the width of thoroughfares, the height of
buildings, the thickness of walls, and a variety of other matters
necessary for the general welfare, health, or convenience, and such bye-
laws are enforced by the sanction of penalties, and the breach of them
constitutes an oflence and is a criminal matter. la such cases it
would, generally speaking, be no answer to proceedings for infringe-
ment of the bye-law that the person committing it had bona fide made
an accidental miscalculation or an erroneous measurement. The Acts
are properly construed as imposing the penalty when the act is done, no
matter how innocently, and in such a case the substance of the enact-
ment is that a man shall take care that the statutory direction is
obeyed, and that if he fails to do so he does it at his peril.
Whether an enactment is to be construed in this sense or with the
qualification ordinarily imported into the construction of criminal
statutes, that there must be a guilty mind, must, I think, depend upon
the subject-matter of the enactment, and the various circumstances
that may make the one construction or the other reasonable or un-
reasonable. There is no difference for instance in the kind of language
used by Acts of Parliament which made the unauthorized possession of
Government stores a crime, and the language used in bye-laws which
say that if a man builds a house or a wall so as to encroach upon
a space protected by the bye-law from building he shall be liable to
a penalty. Yet in Beg. v. Sleep^ it was held that a person in possession
of Government stores with the broad arrow could not be convicted
when there was not sufficient evidence to shew that he knew they were
so marked ; whilst the mere infringement of a building bye-law would
entail liability to the penalty....
Now in the present instance one consequence of holding that the
offence is complete if the husband or wife is de facto alive at the time
of the second marriage, although the defendant had at the time of the
second marriage every reason to believe the contrary, would be that
though the evidence of death should be sufficient to induce the Court
of Probate to grant probate of the will or administration of the goods
of the man supposed to be dead, or to prevail with the jury upon an
action by the heir to recover possession of his real property, the wife of
the person supposed to be dead who had married six years and eleven
months after the last time that she had known him to be ahve would
1 L. &C. 44; 30 L. J. (M.C.) 170.
18 Select Cases on Criminal Law. [part i.
be guilty of felony in case he should turn up twenty years afterwards.
It would be scarcely less unreasonable to enact that those who had in
the meantime distributed his personal estate should be guilty of
larceny. It seems to me to be a case to which it would not be
improper to apply the language of Lord Kenyon when dealing with
a statute which literally interpreted led to what he considered an
equally preposterous result, "I would adopt any construction of the
statute that the words will bear in order to avoid such monstrous con-
sequences \"
A»ain, the nature and extent of the penalty attached to the offence
may reasonably be considered. There is nothing that need shock any
mind in the payment of a small pecuniary penalty by a person who has
unwittingly done something detrimental to the public interest. To
subject him, when what he has done has been nothing but what any
well-disposed man would have been very likely to do under the circum-
stances, to the forfeiture of all his goods and chattels, which would
have been one consequence of a conviction at the date of the Act of
24 and 25 Vict., to the loss of civil rights, to imprisonment with hard
labour, or even to penal servitude, is a very different matter ; and such
a fate seems properly reserved for those who have transgressed morally
as well as unintentionally done something prohibited by law....
Cave, J. At common law a reasonable belief in the existence of
circumstances, which, if true, would make the act for which a prisoner
is indicted an innocent act has always been held to be a good defence.
This doctrine is embodied in the somewhat uncouth maxim, " actus non
facit reum, nisi mens sit rea." Honest and reasonable mistake stands
in fact on the same footing as absence of the reasoning faculty, as in
infancy, or perversion of that faculty, as in lunacy. Instances of the
existence of this common law doctrine will readily occur to the mind.
So far as I am aware it has never been suggested that these exceptions
do not equally apply in the case of statutory offences unless they are
excluded expressly or by necessary implication. In Jieff. v. Frince^
in which the principle of mistake underwent much discussion, it was
not suggested by any of the judges that the exception of honest and
reasonable mistake was not applicable to all offences, whether existing
at common law or created by statute. As I understand the judgments
in that case the difference of opinion was as to the exact extent of the
exception, Brett, J., the dissenting judge, holding that it applied where-
ever the accused lionestly and reasonaVjly believed in the existence of
circumstances which, if true, would have made his act not criminal,
1 FowUr V. Tadget, 7 T. 11. 501), 514. ^ jr„y,.„_ p. 21.
SECT. II.] The Queen v. Tohon. ly
while the majority of the judges seem to have held that in order to
make the defence available in tliat case the accused must have proved
the existence in his mind of an honest and reasonable belief in the
existence of circumstances which, if they had really existed, would have
made his act not only not criminal but also not immoral. Whether
the majority held that the general exception is limited to cases where
there is an honest belief not only in facts which would make the act
not criminal, but also in facts which would make it not immoral or
whether they held that the general doctrine was correctly stated bv
Brett, J., and that the further limitation was to be inferred from the
language of the particular statute they were then discussing, is not very
clear. It is, however, immaterial in this case, as the jury liave found
that the accused honestly and reasonably believed in the existence
of a state of circumstances, viz., in her first husband's death, which,
had it really existed, would have rendered her act not only not
criminal, but also not immoral.
Stephen, J. ...The definition of every crime contains expressly or
by implication a proposition as to a state of mind. Therefore, if the
mental element of any conduct alleged to be a crime is proved to have
been absent in any given case, the crime so defined is not committed ; or,
again, if a crime is fully defined, nothing amounts to that crime whicli
does not satisfy that definition. Crimes are in the present day much
more accurately defined by statute or otherwise than they formerly
were. The mental element of most crimes is marked by one of the
words "maliciously," "fraudulently," "negligently," or "knowingly,"
but it is the general — I might, I think, say, the invariable — practice of
the legislature to leave unexpressed some of the mental elements of
crime. In all cases whatever, competent age, sanity, and some degree
of freedom from some kinds of coercion are assumed to be essential to
criminality, but I do not believe they are ever introduced into any
statute by which any particular crime is defined.
The meanings of the words "malice," "negligence," and "fraud"
in relation to particular crimes has been ascertained by numerous cases.
Malice means one thing in relation to murder, another in relation to
the Malicious Mischief Act, and a third in relation to libel, and so of
fraud and negligence.
With regard to knowledge of fact, the law, perhaps, is not quite so
clear, but it may, I think, be maintained that in every case knowledge
of fact is to some extent an element of criminality as much as com-
petent age and sanity. To take an extreme illustration, can anyone
doubt that a man who, though he might be perfectly sane, committed
what would otlierwise be a crime in a state of somnambulism, would be
20 Select Cases on CrimiTial Law. [part i.
entitled to be acquitted ? And why is this ? Simply because he would
not know what he was doing....
The general principle is clearly in favour of the prisoners, but how
does the intention of the legislature appear to have been against them?
It could not be the object of Parliament to treat the marriage of
widows as an act to be if possible prevented as presumably immoral.
The conduct of the women convicted was not in the smallest degree
immoral, it was perfectly natural and legitimate. Assuming the facts
to be as they supposed, the infliction of more than a nominal punish-
ment on them would have been a scandal. Why, then, should the
legislature be held to have wished to subject them to punishment
at aUI
If such a punishment is legal, the following amongst many other
cases might occur. A number of men in a mine are killed, and their
bodies are disfigured and mutilated, by an explosion ; one of the sur-
vivors secretly absconds, and it is supposed that one of the disfigured
bodies is his. His wife sees his supposed remains buried ; she marries
again. I cannot believe that it can have been the intention of the
legislature to make such a woman a criminal ; the contracting of an
invalid marriage is quite misfortune enough. It appears to me that
every argxmient which shewed in the opinion of the judges in Reg. v.
Prince^ that the legislature meant seducers and abductors to act at
their peril, shews that the legislature did not mean to hamper what is
not only intended, but naturally and reasonably supposed by the
parties, to be a valid and honourable marriage, with a liability to seven
years' penal servitude.
Conviction quashed*.
\A alight mens rea suffices.^
ANONYMOUS.
King's Bench. 1498. Year Book 14 Hen. VII. f. 14. HiL 5.
HussEY [C. J.] said that a question was asked of him, which was
this : — A clerk of a church, being in a room, struck another with the
» In/rci, p. 2L
> Nine of the jadges held the conviction to have been wrong; five held it to
have been right.
SECT. II.] Anonymous. 21
keys of the church. And by the force of the blow the keys slipped
from his hand, and went through a window and struck out a woman's
eye. Should tliis be called mayhem or no?— that was the question.
And to him it seemed that it should ; for at the beginning this man
had a bad intent.
[Mens rea may exist without any intention to do the criminal act which
was done.'\
REG. V. PEINCE.
Crown Case Reserved. 1875. L.R. 2 C.C.R. 154.
Case stated by Denman, J.
At the assizes for Surrey, held at Kingston-upon-Thames, on the
24th of March last, Henry Prince was tried upon the charge of having
unlawfully taken one Annie Phillips, an unmarried girl, being under
the age of sixteen years, out of the possession and against the will
of her father. The indictment was framed under e. 55 of 24 and
25 Vict. c. 100'. He was found guilty.
All the facts necessary to support a conviction existed, unless
the following facts constituted a defence. The girl Annie Phillips,
though proved by her father to be fourteen years old on the 6th
of April following, looked very much older than sixteen, and the
jury found upon reasonable evidence that before the defendant took
her away she had told him that she was eighteen, and that the
defendant bona fide believed that statement, and that such belief was
reasonable.
May 29. The case was argued before Cockburn, C.J., Kelly, C.B.,
Bramwell, Cleasby, Pollock, and Amphlett, BB., Blackburn, Mellor,
Lush, Brett, Grove, Quain, Denman, Archibald, Field, and Lindley, JJ.
Brett, J. ...Upon all the cases I think it is proved that there can
be no conviction for crime in England in the absence of a criminal
mind or "mens rea."
^ By 24 and 25 Vict. c. 100, b. 55, "Whosoever shall unlawfully take or cause to
be taken any unmarried girl, being under the age of sixteen years, out of the
possession and against the will of her fatber or mother, or of any other person
having the lawful care or charge of her, shall be guilty of a misdemeanor, 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 Avithont bard labour."
22 Select Cases on Criminal Law. [part i.
Then comes the question, what is the true meaning of the phrase 1
I do not doubt that it exists where the prisoner knowingly does acts
which would constitute a crime if the result were as he anticipated,
but in which the result may not improbably end by bringing the
offence within a more serious class of crime. As if a man strikes with
a dangerous weapon, with intent to do grievous bodily harm, and kills,
the result makes the crime murder. The prisoner has run the risk.
So, if a prisoner do the prohibited acts, without caring to consider
what the truth is as to facts — as if a prisoner were to abduct a girl
under sixteen without caring to consider wliether she was in truth
under sixteen — he runs the risk. So if he without abduction defiles
a girl who is in fact under ten years old, with a belief that she is
between ten and twelve. If the facts were as he believed he would be
committing the lesser crime. Then he runs the risk of his crime
resulting in the greater crime. It is clear that ignorance of the law
does not excuse. It seems to me to follow that the luaxim as to mens
rea applies whenever the facts which are present to the prisoner's
mind, and which he has reasonable ground to believe, and does believe
to be the facts, would, if true, make his acts no criminal offence at all.
Bramwell, B. The question in this case depends on the con-
struction of the statute under which the prisoner is indicted. That
enacts that "whosoever shall unlawfully take any unmarried girl
under the age of sixteen out of the possession and against the will
of her father or mother, or any other person having the lawful
care or charge of her, shall be guilty of a misdemeanour." Now the
word "unlawfully" means "not lawftilly," "otherwise than lawfully,"
"without lawful cause," such as would exist, for instance, on a taking
by a police officer on a charge of felony, or a taking by a father of
his child from his school. The statute, therefore, may be read thus :
"Whosoever shall take, &c., without lawful cause." Now the prisoner
had no such cause, and consequently, excu^Dt in so far as it helps the
construction of the statute, the word "unlawfully" may in the present
case be left out, and then the question is, has the prisoner taken an
unmarried girl under the age of sixteen out of the possession of and
against the will of her father ? In fact, he has ; but it is not said within
the meaning of the statute, and that that must be read as though the
word "knowingly," or some equivalent word, was in; and the reason
ifiven is, that as a rule the mens rea is necessary to make any act a
crime or offence, and that if the facts necessary to constitute an offence
are not known to the alleged offender, there can be no mens rea.
I have used the word "knowingly"; but it will, perhaps, be said that
here the prisoner not only did not do the act knowingly, but knew,
SECT. II.] Reg. v. Prince. 28
as he would have said, or believed, that the fact was otherwise than
such as would have made his act a crime; that here the prisoner
did not say to himself, "I do not know how the fact is, whether
she is under sixteen or not, and will take tlie chance," but acted
on the reasonable belief that she was over sixteen ; and that though
if he had done what he did, knowing or believing neither way, but
hazarding it, there would be a mens rea, there is not one when, as
he believes, he knows that she is over sixteen.
It is impossible to suppose that, to bring the case within the
statute, a person taking a girl out of her father's possession against
his will is guilty of no offence unless he, the taker, knows she is
under sixteen; that he would not be guilty if the jury were of
opinion he knew neither one way nor the other. Let it be, then,
that the question is, whether he is guilty where he knows, as he thinks,
that she is over sixteen ? This introduces the necessity for reading the
statute with some strange words introduced; as thus: "Whosoever
shall take any unmarried girl, being under the age of sixteen, and not
believing her to be over the age of sixteen, out of the possession," &c.
Those words are not there, and the question is, whether we are bound
to construe the statute as though they were, on account of the rule
that the mens rea is necessary to make an act a crime. I am of
opinion that we are not, nor as though the word "knowingly" was
there, and for the following reasons : The act forbidden is wrong in
itself, if without lawful cause; I do not say illegal, but wrong. I have
not lost sight of this, that though the statute probably principally aims
at seduction for carnal purposes, the taking may be by a female
with a good motive. Nevertheless, though there may be such cases,
which are not immoral in one sense, I say that the act forbidden
is wrong.
Let us remember what is the case supposed by the statute. It
supposes that there is a girl — it does not say a woman, but a girl —
something between a child and a woman; it supposes she is in the
possession of her father and mother, or other person having lawful care
or charge of her; and it supposes there is a taking, and that that
taking is against the will of the person in whose possession she is.
It is, then, a taking of a girl, in the possession of some one, against his
toill. I say that done without lawful cause is wrong, and that the
legislature meant it should be at the risk of the taker whether or
no slie was under sixteen. I do not say that taking a woman of fifty
from her brother's or even father's house is wrong. iShe is at an age
when she has a right to choose for herself; she is not a girl, nor of
such tender age that she can be said to be in the possession of or under
24 Select Gases on Criminal Law. [part i.
the care or charge of anyone. I am asked where I draw tlie line;
I answer at when the female is no longer a girl in anyone's possession.
But what the statute contemplates, and what I say is wrong, is
the taking of a female of such tender years that she is properly called
a girl', can be said to be in another's possession, and in that other's care
or charge. No argument is necessary to prove this; it is enough to
state the case. The legislature has enacted that if anyone does this
wrong act, he does it at the risk of her turning out to be under sixteen.
This opinion gives full scope to the doctrine of the mens rea. If the
taker believed he had the father's consent, though wrongly, he would
have no mens rea ; so if he did not know she was in anyone's pos-
session, nor in the care or charge of anyone. In those cases he would
not know he was doing the act forbidden by the statute — an act which,
if he knew she was in possession and in care or charge of anyone, he
would know was a crime or not, according as she was under sixteen or
not. He would not know he was doing an act wrong in itself, what-
ever was his intention, if done without lawful cause.
In addition to these considerations, one may add that the statute
does use the word "unlawfully," and does not use the word "know-
ingly" or "not believing to the contrary." If the question was whether
his act was unlawful, there would be no difficulty, as it clearly was not
lawfuL
This view of the section, to my mind, is much strengthened by
a reference to other sections of the same statute. Sect. 50 makes it
a felony to unlawfully and carnally know a girl under the age
of ten. Sect. 51 enacts when she is above ten and under twelve
to unlawfully and carnally know her is a misdemeanour. Can it be
supposed that in the former case a person indicted might claim to be
acquitted on the ground that he had believed the girl was over ten
though under twelve, and so that he had only committed a mis-
demeanour ; or that he believed her over twelve, and so had committed
no offence at all; or that in a case under s. 51 he could claim to be
acquitted, because he believed her over twelve ? In both cases the act
is intrinsically wrong; for the statute says if "unlawfully" done.
The act done with a mens rea is unlawfully and carnally knowing the
girl, and the man doing the act does it at the risk of the child being
under the statutory age. It would be mischievous to hold otherwise.
So 8. 56, by which whoever shall take away any child under fourteen
with intent to deprive parent or guardian of the possession of the
child, or with intent to steal any article upon such child, shall bo
guilty of felony. Could a prisoner say, "I did take away the child to
steal its clothes, but I believed it to be over fourteen"? If not, then
SECT. II.] Re(i. V. Prince. 25
neither could he say, "I did take the child with intcMit to dc]jrivf, the
parent of its possession, but I believed it over fourteen." Because if
words to that effect cannot be introduced into the statute where the
intent is to steal the clothes, neither can they where the intent is
to take the child out of the possession of the parent. But if those
words cannot be introduced in s. 56, why can they be in a. 551
The same principle applies in other cases. A man was held liable
for assaulting a police officer in the execution of his duty, tliough ho
did not know he was a police officer ^ "Why? because the act was
wrong in itself. So, also, in the case of burglary, could a person
charged claim an acquittal on the ground that he believed it was past
six when he entered, or in housebreaking, that he did not know the
place broken into was a house? Take, also, the case of libel, published
when the publisher thought the occasion privileged, or that he had
a defence under Lord Campbell's Act, but was wrong; he could not
be entitled to be acquitted because there was no mens rea. Why?
because the act of publishing written defamation is wrong where there
is no lawful cause.
As to the case of the marine stores, it was held properly that there
was no mens rea where the person charged with the possession of
naval stores with the Admiralty mark did not know the stores he had
bore the mark: Reg. v. Sleep'', because there is nothing prima facie
wrong or immoral in having naval stores unless they are so marked.
But suppose his servant had told him that there was a mark, and he
had said he would chance whether or not it was the Admiralty mark?
...It seems to me impossible, where a person takes a girl out of her
father's possession, not knowing whether she is or is not under sixteen,
to say that he is not guilty ; and equally impossible when he believes,
but erroneously, that she is old enough for him to do a wrong act with
safety. I think the conviction should be affirmed *.
Denman, J. ...In the present case the jury find the defendant
believed the girl to be eighteen years of age; even if she had been of
that age, she would have been in the lawful care and charge of her
father, as her guardian by nature : see Co. Litt. 88, b, n. 12, 19th ed.,
recognized in Reg. v. Howes *. Her father had a right to her personal
custody up to the age of twenty-one, and to appoint a guardian by deed
or will, whose right to her personal custody would have extended up
1 10 Cox, Cr. C. 362. 2 3 Cox, Cr. C. 472.
3 [Editor's Note. Eight judges (including Bramwell B., and Denman J.)
expressed concurrence in this judgment.]
4 3 E. and E. 332. Cf. Evans v. Walton (L. R. 2 C. P. 015) where damages
were recovered for enticing away a girl of nineteen.
26 Select Cases on Criminal Law. [part i.
to the same age. The belief that slie was eighteen would be no justi-
tication to the defendant for taking her out of his possession, and
against his will. By taking her, even with her own consent, he must
at least liave been guilty of aiding and abetting her in doing an
unlawful act, viz. in escaping against the will of her natural guardian
from his lawful care and charge. This, in my opinion, leaves him
wholly without lawful excuse or justification for the act he did, even
though he believed that the girl was eighteen, and therefore unable to
allege that what he has done was not unlawfully done, within the
meaning of the clause. In other words, having knowingly done a
wrongful act, viz. in taking the girl away from the lawful possession of
her father against his will, and in violation of his rights as guardian
by nature, he cannot be heard to say that he thought the girl was of
an age beyond that limited by the statute for the offence charged
against him. He had wrongfully done the very thing contemplated by
the legislature : be had wrongfully and knowingly violated the father's
rights against the father's will. And he cannot set up a legal defence
by merely proving that he thought he was committing a different kind
of wrono; from that which in fact he was committing.
Conviction affirmed*.
[Mistake of fact. ^
REX V. LEVETT.
^"ewgate Sessions. 1638. Org. Car. 538.
Jones, J., said that there was resolved by the Chief Justice and
himself and the Recorder of London, at the last Sessions at Newgate,
the case of one William Levett, who was indicted of the homicide
of a woman called Fiances Freeman. There it was found by special
1 All the sixteen judges, except Brett, J., concurred, though not for identical
reasons, in aflSrming the conviction. When the Act of 1885 created the further
offence of "abducting a girl under eighteen with intent that she shall be carnally
known," it added a proviso that, if the accused had reasonable grounds to believe
her to be over eighteen, this shall be a sufficient defence ; thus preventing the
application of the rule in Reg. v. Prince.
SECT. II.] Bex V. Levett. 27
verdict, That the said Levett and Ids wife Ix-ing in the ni;,'ht in Ix-d
and asleep, one Martha Stapleton, their servant, liaving procured thu
said Frances Freeman to help her about the house-business, about
twelve of the clock at night going to the doors to let out the said
Frances Freeman, conceived she heard thieves at the doors olTerin<»
to break them open. Whereupon she, in feai-, ran to her master and
mistress, and informed them that she was in doubt that thieves were
breaking open the house door. Upon that he arose suddenly and
fetched a drawn rapier. And the said Martha Stapleton, lest her
master and mistress should see the said Frances Freeman, hid her
in the buttery. And the said Levett and Helen his wife, coming
down, he with his sword searched the entry for the thieves. And
she the said Helen, espying in the buttery the said Frances Freeman,
whom she knew not, conceiving she had been a thief, crying to her
husband in great fear, said unto him, " Here they be that would undo
us." Thereupon the said William Levett, not knowing the said
Frances to be there in the buttery, hastily entered therein with his
drawn rapier, and being in the dark and thrusting with his rapier
before him, thrust the said Frances under the left breast, giving unto
her a mortal wound, whereof she instantly died. And whether it were
manslaughter, they prayed the discretion of the Court. And it was
resolved that it was not ; for he did it ignorantly, without intention of
hurt to the said Frances.
[Com[)are Reg. v. Rose, infra, p. 140.]
\^3Iens rea may be excluded hy Ignorance of Fact?^
ANONYMOUS.
Assizes. 1745-63. Foster's Crown Law 265.
I once upon the circuit tried a man for the death of his wife by the
like accident. Upon a Sunday morning the man and his wife went
a mile or two from home with some neighbours to take a dinner at the
house of their common friend. He carried his gun with him, hoping
to meet with some diversion by the way; but before he went to dinner
he discharged it, and set it up in a private place in liis friend's house.
After dinner he went to church, and in the evening returned home
with his wife and neighbours, bringing his gun with liim, which was
carried into the room where his wife was, she having brought it part of
28 Select Cases on Criminal Law. [part i.
the way. He taking it up touched the trigger, and the gun went off
and killed his wife, whom he dearly loved. It came out in evidence,
that, while the man was at church, a person belonging to the family
privately took the gun, charged it and went after some game; but
before the service at cliurch was ended returned it loaded to the place
whence he took it, and where the defendant, who was ignorant of all
that had passed, found it, to all appearance as he left it. I did
not inquire, whether the poor man had examined the gun before he
carried it home; but being of opinion upon the whole evidence,
that he had reasonable grounds to believe that it was not loaded,
I directed the jury, that if they were of the same opinion they should
acquit him. And he was acquitted.
\But Ignorance of Fact does not excuse if it he careless and
unreasonable.]
REG. V. JOHN JONES.
Shrewsbury Assizes. 1874. 12 Cox 628.
Prisoner was indicted before Mr Justice Lush for the manslaughter
of Benjamin Jones.
The mother of the deceased said that he was eight years old; that
she went upstairs leaving the prisoner downstairs and after a short
time she heard the explosion of a gun. On coming down she saw that
the boy's brains had been blown out. She said, "0 Jack, you have
shot the child." The prisoner did not speak. On a police constable
arriving she repeated the expression, and the prisoner said, "He shot
himself." The prisoner was always very kind to the boy. Another
witness said that on the morning in question he (the witness) loaded
the gun and went out with it, but did not discharge it, and on his
return took off the cap and put it in a cap box in the cupboard in the
house. He put the gun in a corner of the room. Being cross-examined,
he said that he could not swear that he took the cap off. A police
constable stated that the prisoner, when charged in his presence with
shooting the boy, said, "Do you think I have no more sense? he did it
himself"; but on the road to the police station said, "The boy was
playing with it and I told him to put it down, and he did so, and
fciECT. II.] Eeg. V. Jolui Jonva. 29
I picked it up and pointed it at him ; he ran into the pantry, luid I
waited till he came out, then it went off."
It was contended for the defence that the gun went off by accident
as the prisoner was about to replace it in the corner.
Lush, J., to the jury. No doubt the prisoner did not intend to
discharge the gun at the child. What he did was either an accident
or was negligence on his part. The charge is that he so carelessly
handled the gun as to occasion the death of the deceased. If a person
points a gun without examining whether it is loaded or not, and it
happens to be loaded and death results, he is guUty of negligence and
manslaughter. Can you come to any other conclusion than that the
prisoner did either in joke or otherwise point tlie gun at the boy?
[His Lordship read the evidence.] If he held the gun pointed at the
boy, and so held it until the child came out of the pantry, and it went
off', what can tliat be but so improperly and carelessly handling the
gun as to be negligence, and therefore manslaughter 1
Verdict: Guilty with a recommendation to mercy. Sentence: Two
months' imprisonment.
[N.B. If a man finds a pistol, tries it with the rammer, and
thinks it unloaded, carries it home, shews it to his wife, touches the
trigger, it goes off and kills her, ruled manslaughter; yet ought to have
been only accidental death. Per Holt, C. J., and i'oster, J. (Foster's
Cr. Law, 263; Com. Dig. Tit. Justices, M. 18).]
[See also The State v. Hardie, infra, p. 123.]
[Mens rea is not excluded by Ignorance of Law.^
REX V. BAILEY.
Admiralty Sessions. 1799. Russell and Ryan 1.
The prisoner was tried before Lord Eldon, at the Admiralty
Sessions, December 1799, on an indictment for wilfully and maliciously
shooting at Henry Truscott.
It appeared in evidence, that on the 27th of June, 1799, the prisoner
was the captain of a vessel called the Langley, a letter of marque : that
about 130 leagues from Falmouth, on that day, he discovered in the
morning, and fell in with another vessel called the Admiral Nehon,
sailing at that time without colours hoisted, on board of which vessel
30
Sdect Cases on Criminal Law. [I'AiiT i.
Henry Truscott, the person charged in the indictment to have been
shot at, was a mariner.
This vessel was certainly so conducting herself, at that time, as to
give the prisoner, the captain of the letter of marque, reasonable
ground to think that she was an enemy.... [But the jury were of opinion
that the prisoner did subsequently satisfy himself that she was English.
Stm later, however, he fell into some altercation with her captain;
after which, by prisoner's orders, three] guns were fired at the Admiral
Nelson, one of which, loaded with grape-shot, wounded Henry Truscott
severely in the arm. . . .
It was insisted that the prisoner could not be found guilty of the
offence with which he was charged, because the Act of the 39 Geo. III.
c. 37, upon which (together with the statute relating to maliciously
shooting— 9 Geo. I. c. 22) the prisoner was indicted at this Admiralty
Sessions, and which Act of the 39 Geo. III. is entitled, " An Act for
amending certain defects in the law respecting offences committed on
the high seas," only received the royal assent on the 10th of May, 1799,
and the fact charged in the indictment happened on the 27th of June,
in the same year, when the prisoner could not know that any such Act
existed (his ship, the Langley, being at that time upon the coast of
Africa).
Lord Eldon told the jury that he was of opinion that he was, in
strict law, guilty Avithin the statutes, taken together, if the facts laid
were proved, though he could not then know that the Act of the
39 Geo. III. c. 37 had passed ; and that his ignorance of that fact could
in no otherwise affect the case, than that it might be the means of
recommending him to a merciful consideration elsewhere should he be
found guilty.
All the Judges (except Mr Justice Buller) met at Lord Kenyon's
chambers, and were of opinion that it would be proper to apply for
a pardon, on the ground that the fact having been committed so short
a time after the Act 39 Geo. III. c. 37 was passed, the prisoner could
not have known of it.
SECT. IL] Reynolds v. The United States. 31
[Mens rea is not excluded by the prisoner's belief in a religious oUiyation
to conwiit the critne.l^
REYNOLDS v. THE UNITED STATES.
Supreme Court op the United States. 1878. 8 Ono 145.
In the District Court of the Territory of Utah, an indictment
for bigamy had been found against George Reynolds, a Mormon ; who
had been convicted and sentenced thereon.
At the trial the prisoner requested the Court to direct the jury
that their verdict ought to be "Not Guilty" if they found that he
had married in pursuance of a belief that polygamy was a religious
duty. The Court declined to do so ; and, in summing up, directed the
jury that if the prisoner deliberately married a second time, having
a first wife living, though under the influence of a religious belief that
polygamy was right, this want of consciousness of evil intent would not
excuse him.... On this, and other grounds he sued out a writ of error
to the Supreme Court.
Waite, C. J....As to the defence of religious belief. The accused
proved that at the time of his alleged second marriage, he was a
member of the Mormon Church and a believer in its doctrines. It is its
accepted doctrine that it is the duty of its male members, circumstances
permitting, to practise polygamy... and that a refusal to do so would be
punished... in the life to come.... The question is raised whether religious
belief can be accepted as a justification of an overt act made criminal
by the law of the land. ...A criminal intent is a necessary element of
crime. But here every act necessary to constitute the crime was done
knowingly. Ignorance of a fact may sometimes be taken as evidence
of a want of criminal intent ; but not ignorance of the law. And here
the only defence of the accused is his belief that the law ought not to
have been enacted. In Heg. v. Wagsiqfe (10 Cox 531) the parents
of a sick child who omitted to call in medical attendance because of
their religious belief that what they did for its cure would be eflective,
were held not to be guilty of manslaughter ; but it was said the con-
trary would have been the result if the child had been starved to death
by them, under a notion that it was their rehgious duty to abstain
from giving it food. In that case Willes, J., said, "There is a great
difference between neglecting a child in respect to food (with regard to
which, there can be but one opinion), and neglect of medical treatment,
as to which there may be many opinions." AVhen the ofience consists
of a definite positive act, Avhich is done knowingly, it would be
dangerous to hold that the ofiender might escape punishment because
32 Sdect Cases on Criminal Law. [part i.
he religiously believed that the law which he had broken ought never
to have been made. No case can be found, we believe, that has gone
so far....
Judgment aflSrmed.
[Editor's Note. Now, under the Prevention of Cruelty to Children Act, 1908,
(8 Edw. 7, c, 67, s. 12) it is a statutory' offence for a parent wilfully so to neglect a
child as to cause unnecessary injury to its health. Accordingly, in such a case as
that of Beg. v. Wagstaffe, the parent might now be convicted of manslaughter ; as,
under an earlier Act, upon the prosecution of one of the "Peculiar People," in Reg,
V. Senior (L. R. [1899] 1 Q. B. 283). In this case, some of the judges appear to have
been prepared to hold, moreover, that the neglect would amount to manslaughter
even at common law ; and thus to overrule Reg. v. Wagstaffe.]
[In some exceptional crimes, less than the usual mens rea suffices.^
SHERRAS V. DE RUTZEJST.
Queen's Bench Division. 1895. L.R. 1 Q.B.D. 918.
Case stated by the chairman of quarter sessions for the county of
London.
The appellant was the licensee of a public-house, and was con-
victed before a metropolitan police magistrate under s. 16, sub-s. 2, of
the Licensing Act, 1872*, for having unlawfully supplied liquor to
a police constable on duty without the authority of a superior oflB.cer of
such constable for so doing.
It appeared that the appellant's public-house was situated nearly
opposite a police-station, and was much frequented by the police
1 By the Licensing Act, 1872 (35 and 36 Vict. o. 94), s. 16, " If any licensed
person
" (1) Knowingly harbours or knowingly suffers to remain on his premises any
constable during any part of the time appointed for such constable being on duty
...or
•' (2) SuppUes any liquor or refreshment whether by way of gift or sale to
any constable on duty unless by authority of some superior officer of such
constable, or
" (8) Bribes or attempts to bribe any constable,...
he shall be hublo to a penalty..."
SECT. II.] Sherras v. De Rutzen. 33
when off duty, and that on July 16, 1894, at about 4.40, the poHce
constable in question, being then on duty, entered the appellant's house
and was served with liquor by the appellant's daugiitcr in his presence.
Prior to entering the house the police constable had removed his
armlet, and it was admitted that if a police constable is not wearin"
his armlet that is an indication that he is off duty. The armlet is
removed at the police-station when a constable is dismissed, and
a publican seeing the armlet off would naturally think the police
constable off duty. The police constable was in the habit of usinf^ the
appellant's house, and was well known as a customer to the appellant
and his daughter. Neither the appellant nor his daughter made any
inquiry of the police constable as to whether he was or was not
on duty, but they took it for granted that he was off' duty in con-
sequence of his armlet being off, and served him with liquor under that
belief. The appellant and his daughter were in the habit of serving
a number of police constables in uniform with their armlets off each
day, and the question whether they were or were not on duty was
never asked when the armlet was seen to be off.
The appellant appealed to quarter sessions against the conviction,
•contending that in order to constitute an offence under s. 16, sub.-s. 2,
of the Licensing Act, 1872, there must be shewn to be either know-
ledge that the police constable was on duty, or an intentional abstention
from ascertaining whether he was on duty or not. The Court of
quarter sessions, however, upheld the conviction, considering that
knowledge that the police constable, when served with liquor, was on
duty, was not an essential ingredient of the offence: but stated this
case for the opinion of the Court.
Day, J. I am clearly of opinion that this conviction ought to
he quashed. This police constable comes into the appellant's house
without his armlet, and with every appearance of being off duty. The
house was in the immediate neighbourhood of the police-station, and
the appellant believed, and he had very natural grounds for believing,
that the constable was off duty. In that belief he accordingly served
him with liquor. As a matter of fact, the constable was on duty; but
does that fact make the innocent act of the appellant an offence? I do
not think it does. He had no intention to do a wrongful act; he
acted in the bona fide belief that the constable was off duty. It
seems to me that the contention that he committed an offence is
utterly erroneous. An argument has been based on the appearance of
the word "knowingly" in sub.-s. 1 of s. 16, and its omission in sub-s. 2.
In my opinion the only effect of this is to shift the burden of proof.
In cases under sub-s. 1 it is for the prosecution to prove the know-
K. 3
3-t Select Cases on Criminal Laiv. [part l
ledge, while in cases under sub-s. 2 the defendant has to prove that he
did not know.
It appears to me that it would be straining the law to say tliat this
publican, acting as he did in the bona fide belief that the constable
was oft' duty, and having reasonable grounds for that belief, was never-
theless guilty of an offence against the section, for which he was liable
both to a penalty and to have his licence indorsed.
"Wright, J. I am of the same opinion. There ax-e many cases on
the subject, and it is not very easy to reconcile them. There is a
presumption that mens rea, an evil intention, or a knowledge of the
wrongfulness of the act, is an essential ingredient in every ofl'ence;
but that presumption is liable to be displaced either by the words of
the statute creating the ofience or by the subject-matter with which it
deals, and both must be considered: Nichols v. llaW. One of the
most remarkable exceptions was in the case of bigamy. It was held
by all the judges, on the statute 1 Jac. I., c. 11, that a man was rightly
convicted of bigamy who had married after an invalid Scotch divorce,
which had been obtained in good faith, and the validity of which he
had no reason to doubt: LoUey's Case''. Another exception, apparently
gi'ounded on the language of a statute, is Princess Case^, where it was
held by fifteen judges against one that a man was guilty of abduction
of a girl under sixteen, although he believed, in good faith and on
reasonable grounds, that she was over that age. Apart from isolated
and extreme cases of this kind, the principal classes of exceptions may
perhaps be reduced to three. One is a class of acts which, in the
language of Lush, J., in Davies v. Harvey*, are not criminal in any real
sense, but are acts which in the public interest are prohibited under
a penalty. Several such instances are to be found in the decisions on
the Revenue Statutes, e.g., Attorney General v. Lockwood^, where the
innocent possession of liquorice by a beer retailer was held an ofience.
So under the Adulteration Acts, Reg. v. Woodrow^, as to innocent
possession of adulterated tobacco ; Fitzpati-ick v. Kelly'' and lioberts v
Egerton^, as to the sale of adulterated food. So under the Game Acts,
as to the innocent possession of game by a carrier : Ilex v. Marsh*.
So as to the liability of a guardian of the poor, whose partner^
1 Law Eep. 8 C. P. 322.
' R. & R. 237. [Editob's Note. But this was a case of mistake of law; cf.
p. 29 supra. '\
3 Supra, p. 21. * Law Rep. 9 Q. H. 133.
e 9 M. & W. 378. s 15 M & W. 104.
7 Law Rep. 8 Q. B. 337. « Law Rep. 9 Q. B. 40i.
» 2 B. i C. 717.
SECT. II.] Sherras v. l)e Eutzcn. ;j5
unknown to liiui, sujjplied goods for the poor: Davits v. Ifarvey\
To the same head may be referred Rejj. v. Jiishop ^, where a person was
held rightly convicted of receiving lunatics in an unlicensed house,
although tlie jury found that he honestly and on reasonable grounds
believed that they were not lunatics. Another class comprehends
some, and perhaps all, public nuisances: lii'(j. v. Slevois^, where th<^
employer was held liable on indictment for a nuisance caused by
workmen without his knowledge and contrary to his orders ; and so in
Rex V. Mrdhy^, and Barnes v. likroyiP. Lastly, there may be cases in
which, although the proceeding is criminal in form, it is really only
a summary mode of enforcing a civil right : see per Williams and
Willes, JJ,, in Morden v. Porter^, as to unintentional trespass in
pursuit of game; Lee v. Simpson'', as to unconscious dramatic piracy;
and Hargreaves v. Diddams *, as to a bona fide belief in a legally
impossible right to fish. But, except in such cases as these, there must
in general be guilty knowledge on the part of the defendant, or of
some one whom he has put in his place to act for him generally, or
in the particular matter, in order to constitute an ofTence. It is plain
that if guilty knowledge is not necessary, no care on the part of the
publican could save him from a conviction under s. IG, sub-s. 2, since
it would be as easy for the constable to deny that he was on duty
when asked, or to produce a forged permission from his superior officer,
as to remove his armlet before entering the public-house. I am, there-
fore, of opinion that this conviction ought to be quashed.
Conviction quashed.
See also Coppen v. Moore, infra, p. 454.
[If a master has no mens rea, he is not liable cnminally for his servant's
unauthorised act, even when liable for it civilly.^
REX V. HUGGINS.
King's BENcn. 1730. 2 Lord Ray.moxd 1574.
This was a special verdict found at the Old Bailey on an indictment
of murder against James Barnes and John Huggins, and removed into
the King's Bench by certiorari.
1 Law Rep. 9 Q. B. 4.83. ^ 5Q.B. D. 259. » Law lUp. 1 Q. B. 702.
* G C. & P. 292. " Law Rep. 7 Q. B. 474.
« 7 C. B. (N.S.) 041 ; 29 L. J. (M.C.) 213. ? 3 C. B. 871.
8 Law Rep. 10 Q. B. 582.
3—2
36 Select Cases on Criminal Law. [part i.
Raymond, C. J., delivered the opinion of the Judges, As to
Huf^f'ins, the jury liave only found these facts, viz. : That he had
the office of Warden of the Fleet Prison granted to him by letters
patent, to hold for his life, and to execute by himself or his deputy ;
that he on 1 September, 12 Geo. I. and before, and from thence to
1 January, 12 Geo. I., was Warden of the Fleet; that Thomas Gibbons
was, and for all that time acted as, his deputy in that office; that
James Barnes was for all that time servant of Gibbons, and acted
under him about tlie care of the prisoners, and particularly about the
care of Arne. Then they find that Barnes assaulted, and carried by
force the said Arne into a room, and kept him there against his con-
sent, as in the indictment, forty-four days. Then tliey find the situation
and condition of the room, whereby it was very unwholesome, and
dangerous to the life of any person kept therein ; that Huggins, during
the imprisonment of Arne in that room, viz. for fifteen days before
Arne's death, knew that the room was then lately built, and that the
walls were made of brick and mortar, and were then damp. But
whether he knew it on the 7th of September they are ignorant. Arne
on the 10th of September, 12 Geo. I., by duress of imprisonment
became sick, and languished to the 20th of October, and then died by
duress of imprisonment in the said room. During the imprisonment
of Arne in that room, viz. for at least fifteen days before his death,
Hufff^ins was once present at that room, and then saw the said Arne in
that room sub duritie imprisonamenti praedicti, ac adtunc et ibidem se
avertit, and the said James Barnes, the same time as Huggins turned
himself away, locked the door, the said Arne at the time when the said
door was locked by Barnes being in the said room sub duritie im-
prisonamenti praedicti. And that Arne remained under that duress
till his death: that Huggins acted sometimes as warden, during the
time Gibbons was deputy ; but it is not found that he acted as warden
during the confinement of Arne.
The Judges are unanimously of opinion, that the facts found in this
special verdict do not amount to murder in the prisoner at the bar....
Though he was warden, yet it being found that there was a deputy, he
is not as warden, guilty of the facts committed under the authority of
his deputy. He shall answer as superior for his deputy civilly, but not
criminally. It has been settled, that though a sheriiT must answer for
the ofiences of his gaoler civilly (that is, he is subject, in an action, to
make satisfaction to the party injured), yet he is not to answer
criminally for the ofiences of his undor-ofiicer. He only is criminally
punishable who immediately does the act or permits it to be done.
(Hale, P. C. 114.) So that if an act be done by an under-officer, unless
SECT. II.] Rex V. Htfffffins. 37
it is done by the command or direction, or witli tlie cun.sent of tlio
principal, the principal is not criminally punishaVilo for it. In this case
the fact was done by Barnes ; and it nowliere appears in the special
verdict that the prisoner at the bar ever commanded, or directed, or
consented to this duress of imprisonment, which was the cause of
Arne's death. No command or direction is found ; and it is not found
that Huggins knew of it. That which made the duress in this case
was (1) Barnes carrying, and putting, and confining Arne in this room
by force and against his consent; (2) the situation and condition of tlie
room. Now it is not found that Huggins knew these several circum-
stances which made the duress. It is not found that he knew
anything of Barnes carrying Arne thither; nor that he was there
without his consent or without proper support. As to the room it is
found by the verdict : — (1) That the room was built of brick and
mortar; (2) that the walls were valde humidae ; (3) that the room was
situate on the common sewer of the prison, and near the place where
the filth of the prison and excrement of the prisoners were usually laid.
Ratione quorum the room was very unwholesome, and the life of any
man kept there was in great danger. But all that is found with
respect to the prisoner's knowledge is, that for fifteen days before
Arne's death he knew that the room was then lately built, that the
walls were made of brick and mortar, and were then damp. But it is
not found, nor does it appear, that he knew they were dangerous to
a man's life or that there was a want of necessary support. Nor is it
found that he directed or consented that Arne should be kept or con-
tinued there. The chief thing relied upon is, that the verdict finds
that once the prisoner at the bar was present at the room, and saw
Arne sub duritie imprisonamenti praedicti, et se avertit; which, as was
objected, made him an aider and abettor. But, in answer to this :
(1) Being present alone, unless he knew all the circumstances, and
directed that Arne should continue, or at least consented that he
should, cannot make him an aider or abettor in the murder. Kelynge
113. A man maybe present and be entirely innocent; he may be
present casually. (2) The verdict is vidii sub duritie imprisonamenti
praedicti. He might see him, and see him while he was sub duritie
imprisonamenti praedicti, that is while he was in fact under tlie duress
by Barnes ; but it does by no means follow from thence that he knew
that the man was under this duress, and it is not found that he did
know it. It was objected, that if he saw the man under this duress
he must know it ; and it was his duty to deliver him. But we cannot
take things by inference in this manner. The vidit does not imply
a knowledge of the several facts that made the duress. If the nature
38 Select Cases on Criminal Law. [part i.
of this duress be considered, it is impossible that it sliould be discovered
by one sight of the man. It consists of several ingredients and circum-
stances, that are not necessarily to be discovered upon sight. For
though he saw Arne in the room, yet by the view he could not tell that
he was there without his consent, and by force, or that he wanted
necessary relief. It is not found that the man made any complaint to
him, or that any application was made to him on the man's behalf. If
he was there with his consent it would take off the duress. His seeing
is but evidence of his knowledge of these things at best, and very poor
evidence too. And therefore the jury, if the fact would have borne it,
should have found, that Huggins knew that Arne was there without
his consent, and that he consented to and directed his continuance
there ; which not being done, we cannot intend these things nor infer
them.
[JBut a servant's authority to conduct a business may he so loide as
to imply authority to conduct it in even a criminal way.'\
REX V. ALMON.
King's Bench. 1770. 5 Burrow 2686.
The defendant having been convicted of publishing a libel (Junius's
Letter to the King), in one of tlie magazines called Tloe London
Museum, which was bought at his shop, and even professed to be
printed for him, his counsel moved, on Tuesday, 19th June, 1770, for
a new trial, upon the foot of the evidence being insufficient to prove
any criminal intention in Mr Almon, or even the least knowledge of
their being sold at his shop. And they had alfidavits ' to prove, that
it was a frequent practice in the trade, for one publisher to put
another publisher's name to a pamphlet, as printed for that other,
when, in fact, it was published for himself. Tliat tliis was the fact in
the present case ; Mr Miller being the real publisher of this Museum,
but having advertised it and published it as printed for Mr Alinon,
without consulting Mr Almon. That as soon as he saw his name put
to it as being printed for him, he immediately sent a note to Mr Miller
expressing his disapprobation. That he was not at home when
1 [Editor's Note. The student must observe that none of these assertions
had been proved at the trial.]
SECT. II.] Rex V. Almon. 39
they were sent to his shop. That tlie whole nuiiilw-r sent to liis sliop
was 300. That about G7 of them had been sokl there by a boy in thu
shop, but without Mr Almon's own knowledge, privity, or approbation.
That as soon as he discovered it he stopped the sale, ordered the
remainder to be carried up into liis garret, and took the first opportunity
to return them to Mr Miller. That it was not proved, that the person
who sold them was Mr Almon's servant or employed by him, or that
3rr Almon was at all privy to the sale
Lord Mansfield said that... buying the pamphlet in the shop
of a professed bookseller and publisher of pamphlets, from a person
acting in the shop, is prima facie evidence of a puljlication by the
master himself. But that it is liable to be contradicted, where the
fact will bear it, by contrary evidence tending to exculpate the master,
and to show that he was not privy nor assenting to it nor encouragin"
it. That this being prima facie evidence of a publication by the master
himself, it stands good till answered by him ; and if not answered at
all, it thereby becomes conclusive so far as to be sufficient to convict
him. That proof of a public exposing to sale, and selling at his shop
by his servant, was prima facie sufficient; and must stand till contra-
dicted or explained or exculpated by some other evidence ; and if not
contradicted, explained, or exculpated, would be in point of evidence
sufficient or tantamount to conclusive.
Aston, J The bookseller has the profits of the shop, and is
answerable for the consequences If he had a sufficient excuse, he
might have proved it
The Court therefore unanimously discharged the rule.
\Ij a servant has no mens rea, he is not liable criminallij for a criminal
act which he does in obedience to his master, even when liable for it
civilly^
REGINA V. JAMES.
Oxford Circuit. 1837. 8 Carrixgton t Payne 131.
Indictment on the statute 7 & 8 Geo. IV., c. 30, s. G for obstructing
the airway of a mine
It was opened by Ludlow, Serjt. for the prosecution that a
Mr Phelps's colliery... was adjacent to a colliery of Mr Protheroe's.
40 Select Cases on Criminal Law. [part l
The two collieries, though adjacent, were not connected with each
other; and belonging to Mr Phelps's mine, which ran more than a
mile under ground, was an airway. In the coal mines there was a gas
or vapour called the choke-damp, which was fatal to animal life, and to
guard against the effects of this various contrivances had been resorted
to. In the mine of Mr Phelps a long airway was constructed with
a large fire near the end of it, and beyond that a pit called an air-pit ;
the effect of the fire being to create a strong draught of air, and thus
draw off the choke-damp out of the mine; there being also side doors
to close all the openings which led into other workings in the mines.
Things were in this state till the 26th of May last, when the prisoners,
headed by the prisoner James, who was a principal person in Mr
Protheroe's colliery, proceeded to the place and pulled down the side
doors and fire-grate, and also took down the side doors and built a wall
across the airway. The effect of this would be to drive back the
choke-damp into Mr Phelps's mine, and prevent the working.
Lord Abingeh, C.B. If a servant did this by his master's order,
and supposed bona fide that the master had a right to order it to be
done, would it not be too much to say that the servant is answerable as
a felon for doing the thing maliciously, when the malice, if there is
any, is his master's and not his own 1
Ludlow, Serjt. Suppose that a master ordered his servant to
shoot a man, that would be no excuse for the servant if lie did it.
Lord Abinger, C.B. That is an act which is malum in se. But if
a master, having a doubt or no doubt of his own rights, sets his
servants to build a wall in a mine, they would, if he proved to have no
right, be all liable in an action of trespass, but it would not be felony
in the servants. The rules respecting acts mala in se do not apply.
If a master told his servant to shoot a man, he would know that that
was an order he ought to disobey. But if the servant bona fide did
these acts, I think they do not amount to an offence within this statute.
If a man claims a right which he knows not to exist, and he tells his
servants to exercise it, and they do so, acting bona fide, I am of opinion
that that is not a felony in them, even if in so doing they obstruct
the airway of a mine. What I feel is this, that if these men acted
bona fide in obedience to the orders of a superior, conceiving that he
had the right which he claimed, they are not within this Act of Parlia-
ment. But if either of these men knew that it was a malicious act on
the part of his master, I think then that he would be guilty of the
offence charged.
Verdict, Not Guilty.
SEOT. n.J Uex V. Alice. 41
INFANCY.
\An infant, if above seven, is capable of cringe.]
REX V. ALICE.
King's Bench. 1338. Lib. Ass. Anx. 12, f. 37, pi. 30;
Y.B. 11—12 Edw. IIL (Rolls Series) p. G27.
Alice of W., who was of the age of thirteen years, was burnt by
judgment, because she had killed her mistress and because this was
adjudged treason. And it was said that by the old law no one within
age should be hanged or bear judgment of life or member &c., but it
was found before Spigurnel', J., that an infant within age killed his
comrade, and afterwards hid himself, and he was hanged forthwith.
For he [Spigurnel] said that the hiding showed knowledge of right and
wrong, quia malicia supplet aetatem ifcc.
\^But if he be under fourteen, mens rea must be proved expressly. '\
ANONYMOUS.
Exchequer Chamber. 1488. Y.B. 3 Hen. VII. f. 1, Hil. pi. 4.
Another matter debated [before all the Justices in the Exchequer
Chamber] was, that an infant within the age of nine years slew an
infant of nine years and confessed the felony. And it was also found
that he hid him whom he had killed, and by way of excuse for the
blood that was shed on himself, said that it came from his nose.
And [the Justices] held that he should be hanged. And Fairfax [J.]
said that it had been said by Sir John Fortescue [C. J.] that the cause
why one shall be hanged for murder is the example which he sets to
other men, but if an infant or a man without discretion kills, he shall
not be hanged, for no example is set by him to those who have dis-
cretion.
1 Henry Spigurnel sat in the King's Bench under EJw. I. and Edw. II.
42 Select Cases on Criminal Law. [part i.
\^InadequcUe proof of inens rca.^
REX V. OWEN.
Oxford Circuit. 1830. 4 Carrington & Payne 236.
Indictment for stealing coals. The prisoner was ten years of age,
and it was proved that, on the 28th of January, she was standing by
a large heap of coals belonging to Messrs Harford «t Brothers, and
that she put a basket upon her head. This basket was found to con-
tain a few knobs of coal, which, in answer to a question put to her by
the witness for the prosecution, she said she had taken from this heap.
LiTTLEDALE, J., was about to call upon the prisoner for her defence,
when
Carrington, amicus curiae, suggested that she was entitled to an
acquittal. He submitted that a child under seven years of age could
not legally be convicted of felony ; and that, in cases where the
accused was between the ages of seven and fourteen, it was incumbent
on the prosecutor to prove, not only that the otlence was committed,
but also that the offender had, at the time, a guilty knowledge that he
or she was doing wrong.
LiTTLEDALE, J. I Cannot hold that a child of ten years of age
is incapable of committing a felony. Many have been convicted under
that age.
Carrington. — No doubt that is so. A boy, named York, who was
■only ten years old, was convicted of a murder ; but in that case there
was the strongest evidence of guilty knowledge'.
LiTTLEDALE, J. — I think I must leave it to the jury.
The prisoner was then called on for her defence.
LiTTLEDALE, J. (in Summing up), said — In this case there are two
•questions ; first, did the prisoner take these coals ; and, secondly, if she
did, had she at the time a guilty knowledge that she was doing wrong.
The prisoner, as we have heard, is only ten years of age; and, unless
* Fost. 70. [Editor's Note. He had killed a girl of live, mangled the dead
body, and buried it in a dung heap. He was sentenced to death at Bury Assizes
in 1748, before Willes, L.C.J. ; who referred the case to the whole of the judges.
They, upon consideration, unanimously agreed *' That there are so many circum-
Btances stated which are undoubtedly tokens of a mischievous disposition, that he
is certainly a proper subject for capital punishment, and ought to suffer. For it
would be of very dangerous consequence to have it thought that children may
commit such atrocious crimes with impunity." He received, however, several
Baccessive reprieves ; and ultimately, after being detained in prison nine years,
was pardoned on condition of entering the navy.]
SECT. II.] JRcx V. OvcH. 43
you are satisfied by the evidence tliat, in coininittin;,' tliis otVcncf, she
knew that she was doing wrong, you ought to acquit her. WlicnevLT
a person committing a felony is under fourteen yeajs of age, tlie pi'o-
sumption of law is, that he or she has not sufticient capacity to know
that it is wrong; and such person ouglit not to be convicted, unless
there be evidence to satisfy the jury that the party, at the time of the
offence, had a guilty knowledge that he or she was doing wrong ^
Verdict — Not Guilty ; and the foreman of the jury added,
"We do not think that the prisoner had any guilty
knowledge."
See also Regina v. Manley, infra.
INSANITY.
\^Insanity may slioio absence of mens reaS\
ANONYMOUS.
Xing's Bench. 1505. Y.B. 21 Hen. VII. f. 31, Mich. pi. 16.
A man was arraigned for the murder of an infant. And it was
found that at the time of the murder the felon was of non-sane
memory. Therefore it was awarded that he should go quit. Quod
■nota bene.
\^What fori-as of insanity will do this.']
REGINA V. DANIEL M'NAUGHTEN.
House of Lords. 1843. 10 Clakk and Fin. 200.
[The prisoner had been indicted at the Central Criminal Court
for the murder of Edward Drummond (Secretary to Sir Robert Peel),
1 It is believed that the youngest person who vs-as ever executed in this country,
-was a boy between eight and nine years old, named Dean, who was found guilty of
burning two barns at Windsor, " and it appearing tliat he had malice, revenge,
■craft, and cunning, he had judgment to be hanged, and was hanged accordingly."
This case was tried before Whitlock, J., at the Abingdon Assizes, 1G29, and is
reported in Emlyn's Edit. Hale's Pleas of tlie Crown, p. 25, n. (u).
44 Select Cases on Criminal Lau\ [part i.
by shooting him in the back, as he was walking up Whitehall, on
20th Jan. 1843. The prisoner pleaded Not Guilty. After evidence
had been given of the shooting of Mr Drummond and of his death in
consequence thereof, witnesses were called on the part of the prisoner,
to prove that, at the time of committing the ac-t, he was not in a sound
state of mind. The medical evidence was in substance this: — That
persons of otherwise sound mind might be affected by morbid de-
lusions; that the prisoner was in that condition; that a person so
labouring under a morbid delusion might have a moral perception of
ri^^ht and wrong, but tliat in the case of the prisoner it was a delusion
which carried him away beyond the power of his own control, and left
him no such perception ; and that he was not capable of exercising any
control over acts which had connection with his delusion ; that it was
of the nature of the disease with which the prisoner was affected, to
go on gradually until it had reached a climax, when it burst forth with
iiresistible intensity; that a man might go on for years quietly,
though at the same time under its inliuence, but would all at once
break out into the most extravagant and violent paroxysms. Some of
the witnesses, who gave this evidence, had previously examined the
prisoner; others had never seen him till he appeared in Court, and
they formed their opinions on hearing the evidence given by the other
witnesses.
TiNDAL, C.J., told the jury that the question to be determined was
whether at the time the act in question was committed the prisoner
had or had not the use of his understanding, so as to know that he was
doing a wrong or wicked act.
The verdict of the jury was Not Guilty, on the ground of insanity.
This verdict, and the question of the nature and extent of the unsound-
ness of mind which would excuse the commission of a crime, attracted
great attention throughout England and became the subject of a
debate in the House of Lords. The House determined to take tlie
opinion of the Judges on the law. Accordingly, on June 19, 1843, all
the Judges attended the House of Lords ; Avhen (no argument having
been had) the following questions of law were propounded to them: —
««lst. — What is the law respecting alleged crimes committed by
persons afflicted with insane delusion in respect of one or more
particular subjects or persons; as, for instance, where, at the
time of the commission of the alleged crime, the accu.sed knew
he was acting contrary to law, but did the act complained of
with a view, under the influence of insane delusion, of redre.ss-
ing or revenging some supposed grievance or injury, or of
producing some supposed public benefit?
SECT. II.] Reg. v. Daniel M'Namihtn,. 45
"2nd. — What are the jaroper questions to be subuiittcd tu the jury
when a person alleged to he afflicted with an insane delusion
respecting one or more particular subjects or persons, is charged
with the commission of a crime (murder, for exaiiiplo), and insanity
is set up as a defence 1
*'3rd. — In what terms ought the question to be left to the jury as to
the prisoner's state of mind at the time when the act was
committed ]
*'4th. — If a person under an insane delusion as to existing facts
commits an offence in consequence thereof, is lie thereby
excused 1
*'5th. — Can a medical man, conversant with the disease of insanity,
who never saw the prisoner previously to the trial, but wlio was
present during the whole trial and the examination of all the
witnesses, be asked his oi)ini()n as to the state of the prisoner's
mind at the time of the conmiissioii of the alleged crime, or his
opinion whether the prisoner was conscious at the time of doing
the act that he was acting contrary to law, or whether he was
labouring under any and what delusion at the time ? "
Mr Justice Maule gave his own answers separate!)'-
Lord Chief Justice Tindal. — "My lords, her Majesty's Judges,
with the exception of Mr Justice Maule, who has stated his opinion to
jour lordships, in answering the questions proposed to them by your
lordships' House, think it right in the first place, to state that they
have forborne entering into any particular discussion upon these
questions, from the extreme and almost insuperable difficulty of apply-
ing those answers to cases in which the facts are brought judicially
before them. The facts of each particular case must of necessity
present themselves with endless variety, and with every shade of
diflference in each case. As it is their duty to declare the law upon
each particular case on facts proved before them, and after hearing
argument of counsel thereon, they deem it at once impracticable, and
at the same time dangerous to the administration of justice if it were
practicable, to attempt to make minute applications of the principles
involved in the answers given by them to your lordships' questions.
*' They have, therefore, confined their answers to the statement of
that which they hold to be the law upon the abstract questions pro-
posed by your loi'dships; and as they deem it unnecessary, in this
peculiar case, to deliver their opinions seriatim, and as all concur in the
same opinion, they desire me to express such their unanimous opinion
-to your lordships.
"The first question proposed by your lordships is this: '"What is tl)e
46 Select Cases on Criminal Law. [part i.
law respecting alleged crimes committed by persons afflicted with
insane delusion in respect of one or more particular subjects or persons;
as, for instance, where, at the time of the commission of the alleged
crime, the accused knew he was acting contrary to law, but did the act
complained of with a view, under the influence of insane delusion, of
redressing or revenging some supposed grievance or injury, or of pro-
ducing some supposed public benefit?'
'•In answer to which question, assuming that your lordships'
inquiries are confined to those persons who labour under such partial
delusions only, and are not in other respects insane, we are of opinion
that (notwithstanding the party accused did the act complained of
with a view, under the influence of insane delusion, of redressing or
revenging some supposed grievance or injury, or of producing some
public benefit) he is nevertheless punishable, according to the nature of
the crime committed, if he knew, at the time of committing such
crime, that he was acting contrary to law ; by wliich expression we
understand your lordships to mean the law of the land.
"Your lordships are pleased to inquire of us, secondly: 'What are
the proper questions to be submitted to the jury, Avhere a person
alleged to be afflicted with insane delusion respecting one or more
particular subjects or persons is charged with the commission of a
crime (murder, for example), and insanity is set up as a defence?'
And, thirdly: 'In what terms ought the question to be left to the jury
as to the prisoner's state of mind at the time when the act was
committed?' And as these two questions appear to us to be more con-
veniently answered together, we have to submit our opinion to be, that
the jury ought to be told in all cases that every man is to be presumed
to be sane, and to possess a sufficient degree of reason to be responsible
for his crimes, until the contrary be proved to their satisfaction; and
that, to establish a defence on the ground of insanity, it must be
clearly proved that, at the time of the committing of the act, the party
accused was labouring under sucli a defect of reason, from disease of
the mind, as not to know the nature and quality of the act he was
doing, or, if he did know it, that he did not know he was doing
what was wrong. The mode of putting the latter part of the question
to tiie jury on these occasions has generally been, whether the accused
at the time of doing the act knew the difference between right and
wrong; which mode, though rarely, if ever, leading to any mistake
with the jury, is not, as we conceive, so accurate when put generally,
and in the abstract, as when put with reference to the party's know-
ledge of right and wrong in respect to the very act with which he is
charged. If the question were to be put as to the knowledge of the
SECT. II.] I{e<j. V. Dauicl M'Naiujhtai. 47
accuspd, solely and exclusively with reference to tlio law of the land, it
might tend to confound tiie jury, ])y inducing tii(;ni to believe that an
actual knowledge of the law of tlie land was essential in order to lead
to a conviction; whereas the law is administered upon the princiide
that every one must be taken conclusively to know it, without procjf
that he does know it. If the accused was conscious that the act was
one which he ought not to do, and if that act was at the same time
contrary to the law of the land, he is punishable. The usual course,
therefore, has been, to leave the question to the jury, whether the
party accused had a sufficient degree of reason to know that he was
doing an act that was wrong; and this course we think is correct,
accompanied with such observations and explanations as the circum-
stances of each particular case may require.
"The fourth question which your lordships have proposed to us is
this : — 'If a person under an insane delusion as to existing facts
commits an offence in consequence thereof, is he thereby excused?'
To which question the answer must of course depend on the nature of
the delusion; but, making the same assumption as we did before,
namely, that he labours under such partial delusion only, and is not in
other respects insane, we think he must be considered in the same
situation as to responsibility as if the facts with respect to which the
delusion exists were real. For example, if, under the influence of his
delusion, he supposes another man to be in the act of attempting to
take away his life, and he kills that man, as he supposes, in self-
defence, he would be exempt from punishment. If his delusion was
that the deceased had inflicted a serious injury to his character and
fortune, and he killed him in revenge for such supposed injury, he
would be liable to punishment.
"The question lastly proposed by your lordships is: — 'Can a medical
man, conversant with the disease of insanity, who never saw the
prisoner previously to the trial, but who was present during the whole
trial and the examination of all the witnesses, be asked his opinion as
to the state of the prisoner's mind at the time of the commission of the
alleged crime, or his opinion whether the prisoner was conscious at the
time of doing the act that he was acting contrary to law, or whether
he was labouring under any and what delusion at the time?' In
answer thereto, we state to your lordships, that we think the medical
man, under the circumstances supposed, cannot in strictness be asked
his opinion in the terms above stated ; because each of those questions
involves the determination of the truth of the facts deposed to, wiiich
it is for the jury to decide, and the questions are not mere questions
upon a matter of science, in which case such evidence is admissible.
48 Select Cases on Criminal Law. [part i.
But, where the facts are admitted, or not disputed, and the question
becomes substantially one of science only, it may be convenient to
allow the question to be put in the general form ; though the same
cannot be insisted on as a matter of right."
[ITow iiisa)dty is to he proved.^
UNITED STATES v. GUITEAU.
U.S. Court of District of Columbia, 1882. 10 Federal Rkp. 161.
[Charles J. Guiteau was indicted for the murder, on July 2nd, 1881,
of James A. Garfield, the President of the United States of America.
The prisoner resided in Chicago; he was a lawyer, and had sought in
vain to obtain a consulship. He attributed his failure to President
<Jarfield's resolute abandonment of the policy which had led recent
Presidents to give public appointments as rewards for electioneering
services. As the President was entering a room in the railway station
at "Washington, Guiteau came behind him and fired two pistol-shots
into his back. The President lingered several weeks; and died on
Sept. 19th.]
Cox, J., in the course of his summing up to the jury, said : —
Murder is committed when a person of sound memory and discretion
unlawfully kills a reasonable creature, in being and in the peace of the
United States, with malice aforethought. I apprehend that you will
have little difficulty in reaching a conclusion as to all the elements
which make up this crime, unless it be the one of 'sound memory and
discretion' as it is called (which is only a technical expression for a
sound mind). A man cannot commit murder if he is labouring under
disease of his mental faculties to such an extent that he does not
know what he is doing, or does not know that it is wrong. But the
defence of insanity has been so aljused as to be brought into great
discredit. It has been the last resort in cases of unquestionable guilt ;
and has been the excuse of juries for acquittal when their own
sympathy and that of the puljlic have been with the accused. Never-
theless if insanity to the degree that I have already explained be
established, it is a perfect defence to an indictment and must be
-allowed full weight. You must bear in mind that a man does not
become irresponsible by the mere fact of being partially insane. Such
a man may retain as much control over his passions as he had when in
SECT. II.] United States v. Oaitmu. 49
mental health. He may, too, commit ollences with which his infiniaty
has nothing to do; be sane as to his crime, understand its nature, and
be governed in regard to it by the same motives as othor people,
though on some other matter, having no relation whatever to it]
he may be subject to delusions. In a case reported, a defendant was
convicted of cheating by false pretences, and was not saved from
punishment by his insane delusion that he was the lawful son of a
well-known prince. The first thing, therefore, to be impressed upon
you is, that wherever partial insanity is relied on as a defence, it must
appear that the crime charged was the product of the morbid con-
dition and connected with it as effect with cause ; and was not the
result of sane reasoning or natural metises, which the man may l)e
capable of notwithstanding a circumscribed disorder of mind. Secondly,
assuming that the infirmity has had a direct influence in i)roducing the
crime, w^e must fix the degree of disorder which will create irresponsi-
bility in law. The judicial decisions on this bubject have not always
been entirely satisfactory. Courts in former times laid down a law of
insanity in ignorance of the medical aspects of the subject ; though it
could only be properly dealt with through the concurrent light of the
two sciences of law and medicine. Hence one theory after another
was adopted and discarded by the judges in their eflforts to find some
common ground where they could combine a due regard for the security
of society with humanity towards the afilicted. Nearly forty years a^o,
one MacNaughten was tried in England for killing Mr Drummond,
the private secretary of Sir Robert Peel, mistaking him for the Premier
himself. His acquittal on the ground of insanity caused so much
excitement that the House of Lords addressed certain questions to the
judges in regard to the law of insanity in certain cases. Their
answers have been since regarded as settling the law on the subject in
England ; and, with some qualification, they have been approved in
the United States.
It may be well to say a word as to the evidence by which juries
are to be guided in this difficult inquiry. That subtle essence which we
call "mind" defies, of course, ocular inspection and can only be known
by its outward manifestations. By the language and conduct of the
man, his thoughts and emotions are read. According as they con-
form to, or contrast with, the practice of people of sound mind, the
large majority of mankind, we form our judgment as to his mental
soundness. Por this reason, evidence is adruissible to shew that his
conduct and language at different times and on diflferent occasions
indicated some morbid condition of his intellectual powers ; and the
more extended the view of his life, the safer is the judgment formed
K. 4
50 JSelect Cases on Crimhud Law. [part i.
of him. Everything relating to his physical and mental history is
relevant. Evidence as to insanity in his parents and immediate
relatives may also be pertinent. It is never allowable to infer in-
sanity in an accused person from the mere fact of its existence
in his ancestors. But when testimony directly tending to prove
insane conduct on the part of the accused himself has been given,
evidence of his family antecedents is admissible as corroborative of that
testimony.
The question for you to determine is, what was the condition of the
prisoner's mind at the time when this tragedy was enacted? If he
then was sufficiently sane to be responsible, it matters not to you
what may have been his condition before or after. Yet evidence as to
his previous and subsequent conditions is properly admitted; because
it throws Hght, prospectively and retrospectively, upon his condition at
the time of the crime. Inasmuch as mental disorders are of gradual
growth and of indefinite continuance, if he is shown to have been
insane shortly before or shortly after the coniniissiun of the crime, it is
natural to at least conjecture that he was so at the time of it. But all
the evidence must centre around the time when the deed was done.
If you find from the whole evidence that at the time of the com-
mission of the homicide, the prisoner, in consequence of disease of
mind, was incapable of understanding what he was doing or of under-
standing that it was wrong — as, for example, if he was under an
insane delusion that the Almighty had commanded him to do the act,
and in consequence of this delusion he was incapable of seeing that it
was a wrong thing to do — then he was not in a responsible condition
of mind, but was an object of compassion and not of justice, and he
ought to be now acquitted.
Verdict, Guilty. Guiteau was executed.
[Insane impulse is not, of itsdf, sufficient.^
REGINA V. BURTON.
Kent Assizes. 1863. 3 Fosteu and Finlason 772.
The prisoner, a youth of eighteen, was indicted for the murder of a
boy. It appeared that the deceased boy had been playing on the Lines,
a public place at Chatliaui, where the prisoner saw him, and was seen
near him.
SECT. II.] Reghm v. Burton. 5i
Some hours afterwards, the child's dead body was found on the
Lines. The throat was cut and there were marks of a violent struggle.
The police were engaged in prosecuting their inquiries, when the
prisoner gave himself up, and admitted the act, recounting all the
circumstances with perfect intelligence. He added, "I knew the boy,
and knew his mother, but I had no particular ill-feeling against the
boy; only I had made up my mind to murder somebody." He ahjo
said that he had wiped his hands and the knife. The Superintendent
of Police in cross-examination admitted that when the prisoner said he
had made up his mind to murder somebody, he said he was "tired of
his life.".. .A person to whom the prisoner had been apprenticed stated
that he had a very vacant look, and very often would drop his tools
and run out of the shop and pace backwards and forwards as if absent
in mind. ...Other witnesses deposed to his "vacancy of mind," and
strange ways. He had been known to eat a piece of soap and a piece
of a cat, and to bite a candle On other occasions, however, he seemed
sensible enough.
A doctor deposed that the prisoner's mother had twice been to
a lunatic asylum and his brother was of weak intellect.... The witness
had attended the prisoner himself on two occasions, and believed he
was labouring under what, in the profession, would be considered as
"moral insanity," that is, he knew perfectly well what he was doing
but had no control over himself. By the moral feelings he meant the
propensities ; which may be diseased while the intellectual faculties
are sound.
Counsel for the prisoner proposed to ask the witness whether,
having heard the evidence, he was of opinion that the prisoner was
sane or insane at the time of the doing of the act ; but the learned
Judge would not allow the question to be put, as it was the very
question the jury were to determine.
WiGHTMAN, J., in summing up the case, said : As there was no
doubt about the act the only question was whether the prisoner, at the
time he committed it, was in such a state of mind as not to be
responsible for it. The prisoner's account of it was that he had done
it from a morbid feeling ; that he was tired of life and wished to be
rid of it. No doubt prisoners had been acquitted of murder on the
ground of insanity; but the question was what were the cases in which
men were to be absolved from responsibility on that ground. Hattield's
case differed from the present, for there wounds had been received on
the head which were proved to have injured the brain. In the more
recent case of Macnaughten, the judges laid down the rule to be,
that there must, to raise the defence, be a defect of reason from disease
4—2
52 Select Cases on Criminal Law. [part i.
of the mind, so as that the person did not know the nature and quality
of the act he committed, or did not know whether it was right or
wronc'. Now to apply this rule to the present case would be the duty
of the jury. It was not mere eccentricity of conduct which made
a man legally irresponsible for his acts. The medical man called for
the defence delined homicidal mania to be a propensity to kill ; and
described moral insanity as a state of mind under which a man, perfectly
aware that it was wrong to do so, killed another under an uncontrol-
lable impulse. This would appear to be a most dangerous doctrine and
fatal to the interests of society and to security of life. The question
is whether such a theory is in accordance with law. The rule laid
down by the judges is quite inconsistent with such a view ; for it was
that a man was responsible for his actions if he knew the difference be-
tween right and wrong. It was urged that the prisoner did the act to
be hanged, and so was under an insane delusion ; but what delusion
was he under 1 So far from it, it shewed that he was quite conscious of
the nature of the act and of its consequences. He was supposed to
desire to be hanged; and in order to attain the object committed
murder. That might shew a morbid state of mind, but not delusion.
Homicidal mania again, as described by the witnesses for the defence,
shewed no delusion. It merely shewed a morbid desire for blood.
Delusion meant the belief in what did not exist. The question for the
jury was whether the prisoner at the time he committed the act was
labouring under such a species of insanity as to be unaware of the
nature, the character, or the consequences of the act he committed, — in
other words whether he was incapable of knowing that what he did was
wrong. If so, they should acquit him ; if otherwise, they siiould find
a verdict of guilty.
Guilty. Sentence, Death. The prisoner was executed.
\T)is<ine i7)ipulse.'\
KEGINA V. HAYNES.
Hampshire Assizes. 1859. 1 Foster and Finlason 666.
MuRDEB. Insanity. The prisoner, a soldier, was charged with
the murder of Mary MacGowan, at the Camp at Aldershot. The
deceased was a woman witli whom the prisoner had been on the most
friendly terms up to the moment of the commission of the oll'ence. No
SECT. II.] ReyiiKi v. Jlai/tus. 63
motive was assigned for the perpetration of the act. And Renenil
evidence was given that the prisoner having, while in Canada, seduced
a young woman under a promise of marriage, had been unable to fulfil
it by reason of his regiment having been ordered home, and his mind
had been much affected by the circumstance...
Bramwell, B., in summing up to the jury, said : — Aa to tlic defence
of insanity, it has been urged for the prisoner that you should acquit
him on the ground that, it being impossible to assign any motive for
the perpetration of the offence, he must have been acting under what
is called a powerful and irresistible influence, or homicidal tendency.
But I must remark as to that, that the circumstance of an act being
aiiparently motiveless is not a ground from which you can safely infer
the existence of such an influence. Motives exist unknown and in-
numerable which might prompt the act. A morbid and restless (but
resistible) thirst for blood would itself be a motive urging to such
a deed for its own relief. But if an influence be so powerful as to be
termed irresistible, so much the more reason is there why we should
not withdraw any of the safeguards tending to counteract it. There
are three powerful restraints existing, all tending to the assistance of
the pei'son who is suffering under such an influence — the restraint of
religion, the restraint of conscience, and the restraint of law. But if
the influence itself be held a legal excuse, rendering the crime dis-
punishable, you at once withdraw a most powerful restraint — law,
fori lidding and punishing its perpetration. We must therefore return
to the simple question you have to determine — did the prisoner know
the nature and quality of the act he was doing^ ; and did he know that
he was doing what was wrong?
Guilty. Sentence, Death, The prisonei- was reprieved.
[XoTE. In the case of Mrs Brough, indicted in 1856 for murder,
coram Erie, J., the law was laid down in precisely the same way a.s to
homicidal impulse.]
REGINA V. TYLER.
[See this case, infra p. 57.]
* [Editor's Note. The much later case of Rex v. Hay (a.d. 1911) would, as
reported iu 22 Cox 286, suggest that an uncontrollable homicidal impulse may now
be a defence even for a man who knows his act to be wrong and knows its nature
and quality. But a reference to the ofllcial report of the case (C. C. C. Sess. Pap.
civ. 337) will show that Hay "knew the nature of the act hut he did not know the
qunlitii " of it.]
64 Select Cases on Criminal Law. [part
INTOXICATION.
[Drunkenness is compatible with mens rea.'\
BEX V. MEAKIN.
Oxford Assizes. 1836. 7 Carrington and Payxr 297.
The prisoner was indicted for stabbing Benjamin. Finney, with
intent to murder him. There were also the usual counts laying the
intent to do grievous bodily harm, &c.
It appeared that Benjamin Pinney was a constable ; and that the
prisoner went into the house of Samuel Finney, where he was very
abusive, and Samuel Finney desired Benjamin Finney to tui-n him out,
which he did; and while he was taking him off the premises, the
prisoner stabbed him with a fork. It was proved that the prisoner
said he should not have done it if he had not been drunk, and it
appeared that he was "something the worse for liquor."
Alderson, B. (in summing up). — It is my duty to tell you that the
prisoner's being intoxicated does not alter the nature of the offence.
If a man chooses to get drunk, it is his own voluntary act : it is very
different from a madness which is not caused by any act of the person.
That voluntary species of madness which it is in a party's power to
abstain from, he must answer for. However, with regard to the
intention, drunkenness may perhaps be adverted to according to the
nature of the instrument used. If a man uses a stick, you would not
infer a malicious intent so strongly against him, if drunk when he
made an intemperate use of it,... But where a dangerous instrument is
used, which, if used, must produce grievous bodily harm, drunkenness
can have no effect on the consideration of the malicious intent of the
party.
Verdict, Guilty.
[But it m,ay cause such a Mistake of Fact as will excuseJ\
REGINA V. GAMLEN.
Bristol Assizes. 1858. 1 Foster and Finlason 90.
Assault. The charge arose out of an affray at a fair ; and there
seemed some ground for supposing that the prisoner acted under appre-
hensions of an assault ujjon himself. All concerned were drunk.
SECT. II.] Regina v. Gamkn.
55
in con-
Crowder, J.... Drunkenness is no excuse for crime. But
sidering whether the prisoner apprehended an assault on hirus.-lf you
may take into account the state in which ho was.
Verdict, Not guilty.
[Or may disprove the presence of some special form of mens rca.]
THE STATE v. BELL.
Supreme Court op Iowa. 1870. 29 Stiles 316
The prisoner was indicted for a burglary in entering a house by
night with intent to commit the crime of larceny. The evidence shewed
that he had never before been charged with crime and was a man of
good moral character. He had spent the evening of the night when
the alleged burglary was committed (which was a New Year's Eve) in
company with some friends ; with whom he sat drinking until about
11 p.m. A few hours after, he was found in the house specified in the
indictment; and was at once arrested. He was then in a state of
intoxication.
At the trial before the District Court of Des Moines, the Judge
was asked by defendant's counsel to tell the jury that if they should
conclude from the evidence that the defendant entered the house
through drunkenness, without knowing where he was and with no
intent to steal or commit any felony, then they ought to acquit. He
refused to do so. The prisoner was convicted. A motion was made
in the Supreme Court of Iowa to reverse this conviction on the "round
of mis-direction.
Wright J. The offence here would not be complete unless the
dwelling-house were broken with the intent to commit a felony. If
that intent existed, it would make no difference whether the accused
was drunk or sober. A criminal intent may exist in the mind of a
man who is under the influence of intoxicating liquor : and if it do,
the intoxication is no excuse. But if the defendant's drunkenness
was such as to take away from his act all criminal intent, then the act
was not criminal. The drunkenness is a proper circumstance to be
weighed by the jury in determining whether there existed the intent
to commit the specific felony charged. If, as he alleges, he blundered
into this house through a drunken mistake, under such circumstancea
as indicate inability to foi-m any definite purpose and especially to
form the purpose of committing a larceny, then he is not guilty of the
56 Select Cases on CHminal Laic. [part i.
offence charged. If under such circumstances he had taken the
property of another, it would not have been larceny ; there being the
absence of the requisite specific legal intent to steal. If so, the enter-
ing would not be burglarious. Conviction reversed.
MISTAKE.
See REr;. v. Rose, infra, p. 140,
DURESS.
\Fear of death may excuse even TreasonJ^
EEX V. MCGROWTHER.
Special Commission. 1746. Foster's Crown Law 13.
In the case of Alexander M'^Growther, there was full evidence
touching his having been in the rebellion; and his acting as a lieutenant
in a regiment in the rebel army called the Duke of Perth's regiment.
The defence he relied on was, that he was forced in.
And to that purpose he called several witnesses; who in general
swore that on the 28th of August the person called Duke of Perth,
and the Lord Strathallan, with about twenty Highlanders, came to the
town where the prisoner lived ; that on the same day three several
summonses were sent out by the Duke, requiring his tenants to meet
him, and to conduct him over a moor in the neighbourhood, called
Luiny Moor; that upon the third summons the prisoner, who is a
tenant to the Duke, with about twelve of the tenants appeared ; that
then the Duke proposed to them that they should take arms and
follow him into the rebeDion ; that the prisoner and the rest refused to
go ; whereupon they were told, that they should be forced, and cords
were brought by the Duke's party in order to bind them ; and that
then the prisoner and ten more went off, surrounded by the Duke's
party.
These witnesses swore, that the Duke of Perth threatened to burn
the houses, and to drive ofi" tiie cattle of such of his tenants as should
refuse to follow him.
They all spake very extravagantly of the power which lords in
Scotland exercise over their tenants ; and of the obedience (even to
the joining in rebellion) which they expect from them.
LoHD Chief-Justice Lee, in summing up, observed to the jury, that
SECT. II.] Rex V. M'Growtlur. 57
there is not, nor ever was, any tenure wliich oblig(;Lli tenants to follow
their lords into rebellion.
And as to the matter of force, he said that the fear of liavinj,'
houses burnt or goods spoiled, supposing that to liavo been the case of
the prisoner, is no excuse in the eye of the law for joining and march-
ing with rebels ^
The only force that doth excuse is a force upon tlie person and
present fear of death ; and this force and fear must continue all the
time the party remains with the rebels. It is incumbent on every
man who makes force his defence, to shew an actual force, and that he
quitted the service as soon as he could; agreoably to the rule laid down
in Oldcastle's case, that they joined pro tiiaore mortis, and recessei-unt
quam cito potuerunt.
He then observed that the only force the prisoner pretends to was
on the 28th of August; and that he continued with the re])el8 and
bore a commission in their army till the surrender of Carlisle, which
was on or about the 30th of December.
The jury without going from the bar found him guilty. But hf
was not executed.
N.B. All the Judges that were in town were present, and concurred
in the points of law.
N.B. Many of the Scotch prisoners made force their defence, and
produced the same sort of evidence as M'^Growther did ; and the same
directions in point of law were given as in his case : and the matter of
fact, whether force or no force, and how long that force continued,
with every circumstance tending to shew the practicability or imprac-
ticability of an escape, was left to the jury on the whole evidence.
\But not a fear of any lesser violence.'^
REGINA V. TYLER AND PRICE.
Maidstone Assizes. 1838. 8 Carrington and Payne 61G.
The prisoners were indicted for the murder of Nicholas Meares.
The first count of the indictment charged that John Thorn, otherwise
called Sir William Courtenay, on the 31st day of May, 1838, at the
ville of Dunkirk, had murdered the deceased by shooting him with a
1 N.B. If threats of this kind were an excuse, it would be in the power of any
leader in a rebellion to indemnify all his followers.
58 Select Gases on Criminal Law. [part l
pistol, and that the prisnnprs were feloniously present, aiding and
abetting. The second count charged the prisoners with the murder,
as principals in the first degree.
John Thorn, who called himself Sir William Courtenay, assembled
a great number of persons, and led them about the neighbourhood
of Canterbury, promising them plenty in this world and happiness
hereafter. He asserted that he was above all earthly authority, and
was the Saviour of the world.... After Thom caused this assemblage, a
warrant for his apprehension was placed in the hands of John JNIeares,
a constable. He took with him the deceased (his brother) and one
Edwards, as his assistants, and proceeded to a house at which Thom
was. Some of the men who were with Thom were found placed as
guards about the house, armed with bludgeons. On Thom being
informed of the arrival, he said, "Are you constables?" The deceased
replied, "I am"; upon which Thom shot him with a pistol.... The
prisoners and others, by the order of Thom, took the deceased, who was
still alive, and threw him into a dry ditch.... Thom afterwards killed
Lieutenant Bennett; and was himself killed by the military.
Shee for the prisoners. Thom was insane ; and, being so, could not
be guilty of felony ; so the prisoners could not be guilty of aiding and
abetting him in felony. This disposes of the first count. As to the
second count, which charges them as principals in the first degree,
they did not fire the pistol; they can only be made liable if the act was
done in the prosecution of some unlawful purpose in which all the
parties were engaged. Now, here Thom and liis followers are not
shewn to have had any definite purpose of any kind ; and, therefore,
there could not be any community of purpose between Thom and
the prisoners. I also submit that the prisoners acted from a fear of
personal violence to themselves at the hands of Thom.
Lord Denman, C.J. (in summing up). In order to make out that
part of the charge which imputes to Thom the act of murder, and that
these persons were guilty of aiding and abetting him, it would be
necessary to shew that Thom was a person capable of committing
murder. In order to make out the malicious intention imputed in the
indictment to the act of Thom, he must be shewn to have been of sound
mind at the time when he committed it Yet if Thom was on his trial,
it could hardly be said, from the evidence, that he could be called on to
answer for his criminal acts. That, therefore, simplifies the question
you will have to decide, and confines it to the second count of the in-
dictment. There these persons are cluirgi^d with having couimitLed the
ofience themselves. If they were aware of the malignant purpose enter-
SECT. ii.| Regina v. Tyler and I'ria: 59
tained by Thom, and shared in tliat purpose, and were prosoiit ussistiii"
him in the commission of acts fatal to life, in tho course of accomplish-
ing this purpose, then no doubt they aro guilty as principals on tliis
second count.... It seems wholly unimportant whether the parties had a
well-defined particular mischief to bring about as the result of their
combination. For,... however blank might be the mind of Thom as to
any ulterior purpose, and however unconscious the minds of the prisoners
might be of any particular object, still if they contemplated a resistance
to the lawfully constituted authorities of the country, in case any
should come against them while they were banded together, there would
be a common purpose ; and they would be answerable
You have heard tbat the prisoners were induced to join Thom from
a fear of personal violence to theuiselves. I am bound to tell you that
where parties for such a reason are induced to join a mischievous man,
it is not their fear of violence to themselves which can excuse their
conduct to others. You probably never saw two men tried at a
criminal bar for an offence which they had jointly committed, where
one of them had not been to a certain extent in fear of the otiier, and
had not been influenced by that fear in the conduct he pursued. Yet
that circumstance has never been received by the law as an excuse for
his crime, and the law is that no man, from a fear of consequences to
himself, has a right to make himself a party to committing mischief on
mankind. ...It cannot be too often repeated that the apprehension of
personal danger does not furnish any excuse for assisting in doing an act
which is illegal.
Verdict — Not guilty, on the first count. Guilty on the second.
Public Official Subjection.
[A crime is not necessarily excused hy being committed in obedience to the
command of a military sztpej-ior.]
REX V. THOMAS.
Grown Case Reserved. 1816. Ms of Baym:v, 3}
[H.M.S. AchiUe lay in the Medway, and her crew were being paid
off. To avoid inconvenience from people coming to meet the departing
sailors, one of her marines, named Thomas, was placed as sentinel ;
1 Cited in 3 Kussell on Crimes 91 ; see also -1 M. and S. Ml.
60 Select Cases on Criminal Law. [part i.
with orders to keep oli" all boats unless the officer on deck sanctioned
their approach or officers in uniform were in them. A musket was
given to him, with three blank cartridges and three bullets. Boats did
approach ; and Thomas repeatedly bade them keep off. One boat, how-
ever, persisted ; and came close under the ship. He then fired at it,
and killed a man who was in it. Thomas was tried before Bayley, J.,
for the murder of this man. The jury convicted him ; but^ in answer
to a question from the judge, found that he fired under the (mistaken)
impression that it was his duty to do so.
The Judges held unanimously that his act was one of murder;
(though they thought it a proper case for a pardon). They, however,
added that the homicide would have been justifiable " if the act had
been necessary for the preservation of the ship ; as, for instance, if the
deceased had been stirring up a mutiny."]
\But it probably^ will he excused thereby when the command is such as
the soldier might reasonably — even by a 'mistake of law — suppose
himself legally bound to oheyj]
REGINA V. SMITH.
Special Couut op Cape Colony. 17 C.G.H. 561.
[Indictment for murder. In 1899, during the South African war, a
party of British soldiers, of whom the prisoner was one, arrested a
farmer's son who was suspected of being in communication with the
Boer forces. It was necessary to remove him without delay. But a
bridle, which was needed for his liorse, was missing; and one of the
farm-labourers, named Dolley, who appeared to know where it was,
refused to fetch it. Capt. Cox, the officer in command, ordered Smith to
shoot Dolley unless he produced the bridle promptly. Smith did so,
and killed him.
Sir H. Juta, for prisoner. R. v. Tlwmas was not in time of war.
The Attorney-General, tor the Crown. If an officer's order is not
a lawful order, a soldier obeys it at his peril; for instance, if ordered to
fire on an unoffending bystander. The principle remains, even in war;
1 See the conflicting authorities cited in Marks v. Frogley, L.E. [1898] 1 Q.B.
at pp. 890, 892; and the judgment of Kenneily, J., p. 396.
«ECT. II.] Regina v. Smith. Gl
(though, of course, the state of wai- is a circuinstanco in thf rase). Tlni
test is, Could he fairly suppose that tlie order was reasonable and
nect'ssary? The shooting made it impossible to obtain the bridle.
Solomon, J^. ...Itis not desirable to express an opinion as to wh(!tli( r
the order was a lawful one — a matter which concerns Capt. Cox more
than the prisoner. The point now is, whether, assuming the order to
be unlawful, Smith is protected because he was carrying out the orders
of his superior ollicer. Curiously enough, the point has never yet been
decided in any English court.... It is monstrous to suppose that a soldier
would be protected where the order was grossly illegal... Uut that lie is
responsible whenever he obeys any order not sti'ictly legal, is a pro-
position which the Court cannot accept ;... immediate obedience is
required, especially in time of war — I think it is safe to lay down that
if a soldier honestly believes he is doing his duty in obeying,
and if the orders are not so manifestly illegal that he ought to have
known they were unlawful, he will be protected by the orders. We all
are satisfied that the order here was not so plainly illegal that Smith
would have been justified, under the circumstances, in refusing to obey
it. Acquittal.]
NECESSITY".
[^The necessity/ of avoiding starvation does not excuse Murder.^
REGINA V. DUDLEY AND STEPHENS.
Queen's Bench Division. 1884. L.R. 14 Q.B.D. 273.
The master and mate of the yacht Mignonette were indicted at the
Assizes at Exeter before Huddleston, B., for the murder of a cabin-boy
named Parker. At the suggestion of the learned judge, the jury found
the following special verdict, adding thereto a strong expression of
compassion for the sufferings that the prisoners had undergone : —
"That on July 5, 1884, the prisoners, with one Brooks, all able-
bodied English seamen, and the deceased, an English boy Ix'tween
17 and 18, the crew of an English yacht, were cast away in a storm on
the high seas 1600 miles from the Cape of Good Hope, and were com-
pelled to put into an open boat ; that in this boat they had no supply
of water and no supply of food, except two 1 Ib.-tins of turnips, and for
three days they had nothing else to subsist on; that ou the fourth day
62 iSeleet Cases on Criminal Law. [part i.
they caught a small turtle, upon which they subsisted for a few clays,
and this was the only food they had up to the 20th day when the act
now in question was committed ; that on the 12th day the remains of
the turtle were entirely consumed, and for the next eight days they
had nothing to eat ; that they had no fresh water, except such rain as
they from time to time caught in their oilskin capes; that the boat
was drifting on the ocean, and was probably more than 1000 miles
from land; that on the 18th day, when they had been seven days
without food and five without water, the prisoners spoke to Brooks as
to what should be done if no succour came, and suggested some one
should be sacrificed to save the rest, but Brooks dissented, and the boy,
to whom they were understood to refer, was not consulted ; that on the
day before the act in question Dudley proposed to Stephens and Brooks
that lots should be cast who should be put to death to save the rest,
but Brooks refused to consent, and it was not put to the boy, and
in point of fact there was no drawing of lots ; that on that day the
prisoners spoke of their having families, and suggested it would be
better to kill the boy that their lives should be saved, and Dudley
proposed if no vessel was in sight by the next morning the boy should
be killed ; that next day, no vessel appearing, Dudley told Brooks he
had better go and have a sleep, and made signs to Stephens and Brooks
that the boy had better be killed ; that Stephens agreed to the act,
but Brooks dissented from it ; that the boy was lying at the bottom
of the boat quite helpless, and extremely weakened by famine and by
drinking sea water, and unable to make any resistance, nor did he ever
assent to being killed ; that Dudley, with the assent of Stephens, went
to the boy, and telling him his time was come, put a knife into his
throat and killed him ; that the three men fed upon the boy for four
days ; that on the fourth day after the act the boat was picked up by
a passing vessel, and the prisoners were rescued, still alive, but in the
lowest state of prostration; that they were carried to the i^ort of
Falmouth, and committed for trial at Exeter ; that if the men had not
fed upon the body of the boy they would probably not have survived
to be so picked up and rescued, but would within the four days have
died of famine; that the boy, being in a much weaker condition, was
likely to have died before them ; that at the time of the act there was
no sail in sight, nor any reasonable prospect of relief; that under these
circumstances there appeared to the prisoners every probability that
unless they then or very soon fed upon the boy or one of themselves
they would die of starvation ; that there was no appreciable chance of
saving life except by killing some one for the others to eat ; that
assuming any necessity to kill any one, there was no greater necessity-
SECT. II.] Jlcgirui V. Dudley and tStephrns. 63
for killing the boy than any of the other three men ; l)ut whether, upon
the whole matter, the prisoners were and are guilty of murder the jury
are ignorant, and refer to the Court."
The five senior Judges of the Queen's Bench Division sat as a
Divisional Court to consider the eflfect of this verdict.
Lord Coleridge, in the course of delivering thoir judgment, said :
...We are dealing with a case of private homicide, not one imposed
upon men in the service of their sovereign and in the defence of their
country. Now it is admitted that the deliberate killing c t this unoffend-
ing and unresisting boy was clearly murder, unless the killing can be
justitied by some well-recognized excuse admitted by law. It is further
admitted that there was in this case no such excuse, unless the killing
was justified by what has been called "necessity." But the temptation
to the act which existed here was not what the law has ever called
necessity. Nor is this to be regretted. Though law and morality are
not the same, and many things may be immoral which are not neces-
sarily illegal, yet the absolute divorce of law from morality would be of
fatal consequence ; and such divorce would follow if the temptation to
murder in this case were to be held by law an absolute defence of it.
It is not so. To preserve one's life is generally speaking a duty, but it
may be the plainest and the highest duty to sacrifice it. War is full of
instances in which it is a man's duty not to live, but to die. The duty,
in case of shipwreck, of a captain to his crew, of the crew to the
passengers, of soldiers to women and children, as in the noble case of
the Birkenhead, these duties impose on men the moral necessity, not of
the preservation, but of the sacrifice of their lives for others; from
which in no country, least of all it is to be hoped, in England, will men
shrink, as, indeed, they have not shrunk. It is not correct, therefore,
to say that there is any absolute or unqualified necessity to preserve
one's life. " Necesse est ut earn, non ut vivam,' is a saying quoted by
Lord Bacon himself with high eulogy, in the very chapter on necessity
to which so much reference has been made. It would be a very easy
and cheap display of commonplace learning to quote from Greek and
Latin authors passage after passage in which the duty of dying for
others has been laid down in glowing and emphatic language, as result-
ing from the principles of heathen ethics. It is enough in a Christian
country to remind ourselves of the example which we profess to follow.
It is not needful to point out the awful danger of admitting the
principle which has been contended for. Who is to be the jucige of
this sort of necessity? By what measure is the comparative value of
lives to be measured? Is it to be strength, or intellect, or what? It
is plain that the principle leaves to him who is to profit by it to deter-
64 Select Cases on Criminal Law. [part l
mine the necessity which will justify him in deliberately taking another's
life to serve his own.
" So spake the fiend ; and with necessity,
The tyrant's plea, exensed his devilish deeds."
In this case the weakest, the youngest, the most unresisting was
chosen. "Was it more necessary to kill him than one of the grown
men ? The answer must be " No." It is not suggested that in this
particular case the deeds were devilish ; but it is quite plain that such
a principle once admitted might be made the legal cloak for unbridled
passion and atrocious crime. There is no safe path for judges to tread
but to ascertain the law to the best of their ability and declare it
according to their judgment ; and, if in any case the law appears to be
too severe on individuals, to leave it to the Sovereign to exercise the
prerogative of mercy which the Constitution has intrusted to the hands
fittest to dispense it. It must not be supposed that in refusing to
admit temptation to be an excuse for crime it is forgotten how terrible
the temptation was ; how awfid the suffering ; how hard in such trials
to keep the judgment straight and the conduct pure. We are often
compelled to set up standards we cannot reach ourselves, and to lay
down rules which we cotdd not ourselves satisfy. But a man has no
right to declare temptation to be an excuse, though he might himself
have vielded to it, nor allow compassion for the criminal to change or
weaken in any manner the legal definition of the crime. It is there-
fore our duty to declare that the prisoners' act was wilful murder : and
that the facts stated in the verdict are no legal justification \
COVERTURE.
fRusbaturs mere command, if he be present, raises a presumption oj
duress.^
AXONYMOUS.
Kikg's Bench. 1353. Lib. Ass. Ann. 27. f. 137. pi. 40.
A woman was arraigned for that she had feloniously stolen two
shillingsworth of bread. And she said that she did it by the com-
mandment of him who was at that time her husband. And the
1 [Editor's Note. Sentence of death was passed ; bat was commoted by the
Crown to 5ii months' imprisonment without hard labour.]
SECT. II.] Anonymous. 05
Justices for pity's sake would not hold her by her confession but took
an inquest. By which it was found that she did it by the coercion of
her husband and against her will. Therefore she went quit. And
it was said that if she acted by the command of her husband, without
any coercion, it would be no felony.
[Uushand^s command.'\
EEGIXA V. SA^IUEL SMITH AXD SAEAH SMITH.
Crowx Case Reserved. 1858. Deabslt axd Bell 553.
The following case was reserved and stated by Chajtxell, B.
At the last Assizes for the county of Gloucester the said Samuel
Smith and Sarah Smith were jointly tried before me and found guiltv
on a count charging them with feloniously wounding one John Leach
with intent to disfigure him, and in another count with intent to do
the said John Leach grievous bodily harm, ,
For the purposes of this case the conviction of Sarah Smith is to
be deemed and taken to be a good conviction, unless the same ought to
be reversed by reason of the facts following found by the jury, viz.
that the said Sarah Smith was at the time of the commission of the
offence the wife of the said Samuel Smith ; that she acted under the
coercion of her husband ; and that she herself did not personally inflict
any violence upon the said John Leach. A verdict of guiltv was
entered against the husband and wife. I passed sentence on the said
Samuel Smith.
I reserved for the consideration of this Court the question whether
upon the aforesaid finding the conviction of the said Sarah Smith was
a good conviction ; respiting the sentence upon her and taking bail for
her appearance hereafter to receive judgment if the conviction should
be aflirmed.
The question for the opinion of the Court is, whether Sarah Smith,
the wife of the said Samuel Smith, having acted under his coercion,
and not having herseK inflicted any violence on the said John Leach,
can be properly convicted of the offence before mentioned.
It appeared on the trial that the wife, acting, as the finding of the
jury estabHshed, under the coercion of her husband, wrote letters to
the prosecutor pretending that she had become a widow, and re-
questing a meeting at a distant place. The meeting was granted,
K. 5
66 Select Cases on Criminal Law. [part i.
and the wife, dressed as a widow, met the prosecutor at a railway-
station, and induced him to go with her to a lonely spot where the
husband fell upon him and inflicted the injuries alleged in the in-
dictment.
This case was considered on the 24th April, 1858, by Pollock,
C. B., WiLLES, J., Bramwell, B., Ciiannell, B. and Byles, J.
No counsel appeared.
Pollock, C B. The jury have disposed of this case by their
finding. They have found that Sarah Smith was a married woman ;
that she acted under the coercion of her husband ; and that she herself
did not personally inflict any violence upon the prosecutor. The con-
viction therefore, so far as it extends to her, must be reversed.
Conviction of Sarah Smith reversed.
\_Except in the gravest crimes.^
ANONYMOUS.
Cambridge Assizes. 1664. Kelyng 31.
It was propounded to all the Judges : If a man and his wife go
both together to commit a burglary, and both of them break a house in
the night and enter and steal goods ; Avhat offence is this in the wife ?
And agreed by all that it was no felony in the wife. For, the wife
being together with the husband in the act, the law supposetli the wife
doth it by coercion of the husband. And so it is in all larcenies. But
as to murder; if husband and wife both join in it, they are both equally
guilty. Vide the case of the Earl of Somerset and his lady, both
equally found guilty of the murder of Sir Thomas Overbury by poison-
ing him in the Tower of London. (2 Howell's State Trials, 911.)
[But the presumption may he rebutted by wife's activity in the crimeJ\
REGINA V. THOMAS CRUSE AND MARY CRUSE.
Crown Case Reserved. 1838. 2 Moody 53 ; 8 C. and P. 541.
The prisoners were tried at the Oxford Summer Assizes, 1838, before
Mr Justice Patteson, on an indictment under 7 "VV. IV. and 1 Vict.
c. 85, s. 2 which charged that the prisoner Thomas, on the 4th of
SECT. II.] Jlcfrlna V. Thomas Cruse and Man/ C'/•/^sr. tJ7
June at Tliatohaai, feloniously did assault Cliarlotte Heath, and that
he did cause unto the said Charlotte Heath a certain hodiiy injury
dangerous to life, by striking and beating her with his hands and fists
on her head and back, by kicking her on the back, by seizing and
lifting her and striking her head against a wooden beam of a ceiling,
by casting, throwing, and flinging her against a brick floor, with intent
feloniously to kill and murder her ; by reason whereof the said
Charlotte Heath was grievously injured, and her life greatly endangered.
Mary Cruse was charged as being present, aiding and abetting.
It appeared by the evidence that both the prisoners in company
had ill-used Charlotte Heath, a girl of seven years of age, daughter of
Mary Cruse. Whereupon Mr Carrington for Mary Cruse contended
that she was entitled to be acquitted as having acted under the coercion
of her husband ; and that the only excepted cases were treason and
murder. The learned Judge thought otherwise, and put the case to
the jury as to both. [Mary Cruse had taken an active part. She
ran after the child and gave her a blow on the head ; and, subsequently,
said to the husband "Kill her, kill hex'."]
The jury acquitted both prisoners of the felony, not being satisfied
that they had any intent to murder j but found them guilty of the
assault.
The learned Judge respited the judgment; and requested the opinion
of the Judges on the point with regard to the wife being under the
coercion of her husband.
This case was argued before all the Judges (except Littledale, J.,
Park, J., and Bolland, B.), in Michaelmas term, 1838.
Carrinyton for the prisoners.
The wife must be taken to be acting under the coercion of the
husband when present, and therefore is entitled to an acquittal; except
in cases of treason and murder, to which the presumption is held not
to apply.
TiNDAL, C. J. Suppose the husband to be a cripple and confined to
his bed, his presence then would not be sufficient.
Vaughan, J. There was a case of arson before me on the Home
Circuit. The man and wife were tried together, and it appeared that
the man, though present, was a cripple and bedridden in the room, and
I held, after conferring with my Lord Chief Justice Tindal. that the
circumstances under which the man was, repelled the presumption of
coercion ^.
^ This was a case of house-burning, with intent to defraud the insurance office.
Tried at Maidstone Spring Assizes, 1838 ; Eeg. v. Fullard.
5—2
68 Select Cases on Criminal Law. [part i.
Carrington. In the case of Rex v. Archer, Moody's C. C. 143., it was
held that the mere fact of the wife's being the more active of the two
could not repel the presumption if the husband were actually present.
Parke, B. An assault with an intent to commit murder may be
within the exception of murder, but the difficulty does not arise here;
it is sufficient to dispose of this case, that they are acquitted of the
felony.
Carrington. The jury ought to have been told to acquit the wife, if
they thought there was a felony committed. As to the text writers Lord
Hale at first, 1 Hale, P. C. 45, 47., applies the presumption of coercion
to all cases except treason and murder; but in later passages (vol. i. 434,
516), manslaughter is also excepted. In 1 Hawkins, c. i. p. 4, robbery
is also introduced as excepted. But it was decided in Kel. 31, by the
twelve Judges, that the presumption in favour of the wife applies to
burglary. Blackstone in the first volume only excepts treason and
murder : in the fourth volume he excepts crimes that are mala in se
and prohibited by the law of nature, such as murder and the like.
Alderson, B. There was a case on the Northern Circuit in which
Lord Chief Baron Thompson laid it down, that the presence of the
husband raised only a prima facie presumption that the offence was
conamitted under coercion'.
Carrington. It would appear from the case of Rex v. Price, 8 C.
and P. 19, and Rex v. Coiiolly there cited, that the presumption is not
limited to felony; as there the women were acquitted in misdemeanor
for uttering counterfeit coin.
Aldekson, B. It is decided in the case of Regina v. Ingram,
1 Salk. 384, that husband and wife may be jointly convicted of an
assault ; which is all these parties are convicted of.
Lord Abinger. This case was one that must have been left to the
jury. And they have convicted the parties of an offence of which they
may be jointly guilty.
The Judges held the indictment sufficient and the cunvictiun good.
* PkCX v. Hughes, 1 Russell on Crimes, 18.
SECT. 11.] The Queen v. North of England Railway (Jump. ti!>
CORPORATIONS.
THE QUEEN v. THE GREAT NORTH OF ENGLAND
RAILWAY COMPANY.
Queen's Bench. 1846. 9 Adolphus and Elm.s. N. S. 315.
[Indictment for obstructing tlie Queen's highway. Plea, Not
guilty. Issue thereon.]
On the trial, before Wigiitman, J., at the Durham Spring Assizes,
1845, evidence was given, on the part of the prosecution, to shew that
the Company had cut through a carriage road with the railway ; and
had carried the road over the railway by a bridge not satisfying the
statutory provisions. For the defendants, it was objected that no
indictment for a misfeasance could be maintained against a corpora-
tion.
A verdict was found for the Crown, leave being reserved to move to
enter a verdict for the defendants or to arrest the judgment
Granger, Otter and Bovill shewed cause. The dictum of Holt, C. J.,
in an Anonymous^ case in Modern Reports, will be relied upon for the
defendants. He is reported as saying : " A corporation is not indict-
able, but the particular members of it are." It does not appear what
the facts there were, nor whether the indictment was for a misfeasance
or a nonfeasance. [Lord Denman, C J. referred to Rerjina v. Birming-
ham and Gloucester Railway Company^.^ It was there held that a
corporation might be indicted for not obeying a statute : and this was
assumed in Rex v. The Severn and H'ye Railway Company^. These
two cases, at least, shew that Lord Holt's dictum, as reported, is not
now law : and by the judgment delivered in the former the dictum is
distinctly overruled.... It is not necessary for the prosecutors hero to
contend that an indictment would lie for any misfeasance involving
a breach of the peace : a murder, for instance, could not be conceived
to be authorised by the corporation seal. That is the distinction sug-
gested in Regina v. Birmingham and Gloucester Railvxiy Company', in
the judgment of this Court, where Hawk. P. C. B. 1, c. 65. s. 13*, is
cited. But for that which is analogous to a mere trespass on land, an
indictment may lie. The tendency of modern decisions has been to
make corporations, criminally as well as civilly, amenable like indi-
1 12 Mod. 559. Case 935. ^ 3 Q. B. 223.
2 2 B. and Aid. 61G. * Vol. II. p. 58, 7th cd.
70 Select Cases on Crimitud Lmv. [part i.
viduals And, in Beverley v. The Lincoln Gas Lif/ht and Coke Company^
and Church v. 17ie Imperial Gas Light and Coke Company^, it was held
that assumpsit, on a contract not under seal, might be maintained
against and by a corporation. In the former of these two cases, the
Court expressed a readiness to sanction any decisions which they found
introducing a relaxation of "a rule established in a state of society
very different from the present, at a time when corpjorations were com-
paratively few in number ; and upon which it was very early found
necessaiy to engraft many exceptions." In Church v. 7'he Imperial
Gas Light and Coke Company"^ the Court said : " Wherever to hold the
rule applicable would occasion very great inconvenience, or tend to
defeat the very object for which the corporation was created, the excep-
tion has prevailed." Here the corporation is a railway company, with
the oi'dinary powers of interfering with roads on certain conditions ;
and the oflFence charged is peculiarly one likely to be committed in the
performance of acts which the coi'poration may have occasion to do.
No diiiiculty exists as to connecting them with such acts. Rex v.
Medley'^ shews that members of a company, who authorise their servants
to commit an act amounting to a nuisance, are liable to be indicted
with such servants : it follows that the corporate body, which has the
power of authorising an act under seal, is indictable for such act if it be
a breach of the law. The common law punishment for a nuisance is
fine, or imprisonment, or both. The first of these can be inflicted on
a corporation. And the reasoning which the Court used in Rex v.
Trafford* seems applicable. It was there said that an action on the
case would have lain; and that it followed that an indictment lay.
Here trespass would lie. That which, if committed against an indi-
vidual, would be ground for an action, is ground for an indictment, if
committed against the public. Reference may perhaps be made to Tlie
Case of Sutton's Hospital^, where it is said that a corporation aggregate
"cannot commit treason, nor be outlawed, nor excommunicate, for they
have no souls." But that is met by the distinction already pointed
out : no actual breach of the peace, perhaps, can be the subject
of indictment against a corporation ; nor can the judgment proper to
treason or felony be executed upon them. But they can, by their
servant, obstruct a highway ; and may be fined for doing so, or may be
compelled to abate
Knowles, Bliss and Joseph Addison, contra. Admitting, for the
sake of the argument, that a corporation is liable to actions upon deeds
under the corporate seal, for acts authorised to be done under the corporate
1 6 A. and E. 829. ■ 6 A. and E. 846. » 6 C. and P. 292.
* 1 B. and Ad. 874, 886. b lo Rep. 1 a, 32 b.
SECT. II.] The Qiieen v. North of Emiland Railway Comj,. 7 1
seal, and for some acts of so ordinary a kind that they may bo coiu-
manded without seal, and also that, according to Reyiaa v. lilrmiuyliam
and Gloucester Railway Company^ a corporation may be indict</d for a
nonfeasance, it will not follow that an indictment lies against them fur
a misfeasance. The prosecutors' counsel, in this last case, distinguislicd
expressly between a misfeasance and a nonfeasance, admitting that an
indictment would not lie for the former. That distinction appears to bf
adopted by the Court ; and there is good reason for it. For a non-
feasance there would be no other remedy, except in the cases where
mandamus lies, inasmuch as the omission cannot be the omission of
any particular individual. But, where an indictable act is done, the
individual doing it may be indicted, and so may any individual
members of the corporation who have given the illegal command. But
suppose, after a corporation had been indicted for the act and punished,
such individuals were indicted. Could they support a plea of autei-fois
convict by shewing the conviction of the corporation ? Or are they to
be punished twice ; once as individuals, and once as members of the
body corporate 1 It is admitted, on the other side, that the doctrine
stated in Hawkins, and sanctioned by this Court in Regina v. Birming-
ham and Gloucester Raihcay Company', excludes cases of violence : and
6 Yin. Abr. 309, Corporations (Z), pi. 2 is to the same effect. Yet
a road might be obstructed by violent means; and indeed it is im-
possible to charge an actual obstruction without alleging force, and it
must be supported by proof of what is legally a sj^ecies of violence.
Nor, again, would it follow, from a civil action for trespass being main-
tainable,, that an indictment for the same act is so. An injury com-
mitted out of the realm, an assault by an insane person, an assent to
a trespass previously committed for the defendant's benefit, would be
grounds for an action ; but not for an indictment. The object of an
action is to give the injured party compensation ; that of an indict-
ment, to inflict punishment, for the sake of example, upon acts injurious
to the public.
Cur. adv. riilf.
Lord Dexman, C. J., now delivered the judgment of the Court.
The question is, whether an indictment will lie at common law
against a corporation for a misfeasance; it being admitted, in con-
formity with undisputed decisions, that an indictment may be main-
tained against a corporation for nonfeasance.
All the preliminary difficulties, as to the service and executmn of
process, the mode of appearing and pleading, and enforcing judgment,
are by this admission swept away. But the argument is, that for
1 3 Q. B. 223. 2 3 Q. B. 232.
72 Select Cases on Criminal Laio. [part i.
a wrongful act a corporation is not amenable to an indictment, though
for a wrongful omission it undoubtedly is ; assuming, in the first
place, that tliere is a plain and obvious distinction between the two
species of offence.
No assumption can be more unfounded. Many occurrences may be
easily conceived, full of annoyance and danger to the public, and
involving blame in some individual or some corporation, of which the
most acute person could not clearly define the cause, or ascribe them
with more correctness to mere negligence in providing safeguards or to
an act rendered improper by nothing but the want of safeguards. If
A. is authorised to make a bridge Avith parapets, but makes it without
tlieni, does the offence consist in the construction of the unsecured
bridge, or in the neglect to secure it?
But, if the distinction were always easily discoverable, why should
a corporation be liable for the one species of offence and not for the
other 1 The startling incongruity of allowing the exemption is one
strong argument against it. The law is often entangled in technical
embarrassments ; but there is none here. It is as easy to charge one
person, or a body corporate, with erecting a bar across a public road as
■VA-ith the non-repair of it ; and they may as well be compelled to pay
a fine for the act as for the omission.
Some dicta occur in old cases : " A corporation cannot be guilty of
treason or of felony." It might be added " of perjury, or of offences
against the person." The Court of Common Pleas lately held that
a corporation might be sued in trespass^; but nobody has sought to fix
them with acts of immorality. These plainly derive their character
from the corrupted mind of the person committing them, and are viola-
tions of the social duties that belong to men and subjects. A corpora-
tion, which, as such, has no such duties, cannot be guilty in these
cases: but it maybe guilty as a body corporate of commanding acts
to be done to the nuisance of the community at large. The late
case of Regina v. Birmingham and Gloucester Railway Gompamj^ was
confined to the state of things then before the Court, which amounted
to nonfeasance only ; but was by no means intended to deny the
liability of a corporation for a misfeasance.
We are told that this remedy is not required ; because the indi-
viduals who concur in voting the order or in executing the work, may
be made answerable for it by criminal proceedings. Of this there is no
doubt. But the public knows nothing of the former ; and the latter, if
they can be identified, are commonly persons of the lowest rank, wholly
1 Maund v. The Monmouthshire Canal Company, 4 M. and G. 452.
2 3 Q. B. 223.
SECT, II.] The Queen v. North <[f EufjUoid linUinnj Contji. 7.*}
incompetent to make any reparation for tlie injury. Them can Ijc no
effectual means for deterring from an oppressive exercise of power for
the purpose of gain, except tlie remedy by an incHctment against thono
who truly commit it, that is, the corporation, acting Ijy its majority.
And there is no principle which places them beyond the reach of the
law for such proceedings. The verdict for the Crown, therefore, on
the first four counts, will remain undisturbed.
SECTION III.
MODES OF PARTICIPATION IN A CKIME.
[Principals in first and second degree.^
REGINA V. GRIFFITH.
Shropshire Assizes. 1553. Plowden 97.
At the Shropshire Assizes, persons of the county of Montgomeiy
were indicted for killing Oliver David ap Hoel Vaughan, at Berriew,
in the said county of Montgomery, of malice ])repense ; viz. some for
giving the -wounds whereof he died, and Gx'iflith ap David ap John and
others for that they were present, aiding, comforting and abetting
the others to commit the said murder. And they who gave the
wounds to the said Oliver, and killed him, had fled and escaped ; and
Griffith ap David ap John and the rest were brought to the bar.
And whether they should be arraigned or no was a doubt.
Bromley, L.C.J. They who were present and abetting were prin-
cipals, as well as they who struck the man and killed him, yet they are
principals in only the second degree ; in respect tliat the others, who
struck the said Oliver and killed him, are principals in the first
degree. These others, who abetted them and wei-e present, are also
principals; but in the second degree only, and in respect of tlie
[strikers'] act. For if the [strikers] did not kill the man, tlien if the
said Griffith and the rest, who were abettors and present, should be
now arraigned, and found guilty, [and then the strikers and killers
should be taken and arraigned and should be acquitted], I would know
your opinions what should he done?
74 Select Cases on Criminal Law. [part i.
And all the other Justices above mentioned, after advising thereof
for two days, held clearly enough that they might proceed with
the prisoners now at the bar, without any inconvenience arising
from it. For they said that when many come to do an act, and one
only does it, and the others are present abetting him or ready to aid
hira in the fact, they are principals to all intents as much as he that
does the fact. For the presence of the others is a terror to him that is
assaulted, so that he dare not defend himself. For if a man sees his
enemy and twenty of his servants coming to assault him, and they all
draw their swords and surround him, and only one strikes him so that
he dies thereof, now the others shall with good reason be adjudged as
great offenders as he that struck him. For if they had not been
present, he might probably have defended himself and so have escaped.
But the number of the others being present and ready to strike him
also, shall be adjudged a great terror to him, so as to make him lose his
courage and despair of defending himself ; and by this means they are
the occasion of his death. And then inasnmch as both together, viz. the
wounds and the presence of the others, who gave no wounds at all, are
adjudged the cause of his death, it follows that all of them, viz. those
that strike and the rest that are present, are in equal degree; and
each partakes of the deed of the other. For which reasons it seemed
to them that the prisoners now present might be arraigned. And
afterwards Bromley and all the Court agreed to it. And therefore
they were arraigned ; and pleaded, not guilty.
And note (reader) that a case in 40 Ass, proves that the law
anciently was that those who were present and abetting were not
principals, but accessories ; as the Lord Bromley said before. For the
book is, that four were appealed as principals, and the others of
Presence, Force and Aid. But of lat« time the law has been held con-
trary in this point ; for now they are taken to be principals by all the
saices of the law.
[Principals in Jirst and second degree^
REGINA V. SWINDALL AND OSBORNE.
Stafford Assizes. 1846. 2 Carrington and Kirwax 230.
The prisoners were indicted for the manslaughter of one James
Durose. The second count of the indictment charged the prisoners
with inciting each other to drive their carts and horses at a furious
SECT. III.] Regina v. Swludall <uiil Oshnnic. 76
and dangerous rate along a pul.lic ruatl, .uid witli driving tlicir carts
and horses over the deceased at such furious and dangerous rate, and
thereby killing him. The third count charged Swindall with driving
his cart over the deceased, and Osborne with being i>resent, aiding
and assisting. The fourth count charged Osborne with driving his
cart over the deceased, and Swindall with being present, aiding and
assisting.
Upon the evidence, it appeared that the prisoners were each driving
a cart and horse, on the evening of the 12th of August, 1845. The
first time they were seen that evening was at Draycott toll-gate,
two miles and a half from the place where the deceased was run over.
Swindall there paid the toll, not only for that night, but also for
having passed with Osborne through the same gate a day or two Ijefore.
They then appeared to be intoxicated. The next place at which they
were seen was Tean Bridge, over which they passed at a gallop, the
one cart close behind the other. A per.son there told them to
mind their driving : this was 990 yards from the place where the
deceased was killed. The next place where they were seen was
forty-seven yards beyond the place where the deceased was killed.
The carts were then going at a quick trot, one closely following
the other. At a turnpike gate a quarter of a mile from the place
where the deceased was killed, Swindall, who appeared all along to
have been driving the first cart, told the toll-gate keeper, "We have
driven over an old man" ; and desired him to bring a light and look at
the name on the cart ; on which Osborne pushed on his cart, and told
Swindall to " hold his bother," and they then started oft" at a quick
pace. They were subsequently seen at two other places, at one of
which Swindall said he had sold his concern to Osborne. It appeared
that the carts were loaded with pots from the potteries. The surgeon
proved that the deceased had a mark upon his body which would
correspond with the wheel of a cart, and also several other Ijruises;
and, although he could not say that both carts had passed over his
body, it was possible that both might have done so.
Greaves, in opening the case to the jury, submitted that it was
perfectly immaterial in point of law, whether one or both carts had
passed over the deceased. The prisoners were in company, and had
concurred in jointly driving furiously along the road ; that that was an
unlawful act, and, as both had joined in it, each was responsible for
the consequences, though they might arise from the act of the other.
It was clear that they were either partners, master and servant, or at
all events companions. If they had been in the same cart, one holding
the reins, the other the whip, it could not he doubted that they would
76 Select Cashes on Criminal Lav. [part l
be both liable for the consequences ; and in etfect the case was the
same, for each was driving his own horse at a furious pace, and
encouraging the other to do the like.
At the close of the evidence for the prosecution, Allen, Serjt., for
the prisoners, submitted that the evidence only proved that one of the
prisoners had run over the deceased, and that the other was entitled
to be acquitted.
Pollock, C B. I think that that is not so. I think that
Mr Greaves is right in his law. If two persons are in this way
inciting each other to do an unlawful act, and one of them runs over
a man, whether he be the first or the last he is equally liable. The
person who runs over the man would be a principal in the first degree,
and the other a principal in the second degree.
Allen, Serjt. The prosecutor, at all events, is bound to elect upon
which count he will proceed.
Pollock, C.B. That is not so. I very well recollect that in
liegina v. Goode there were many modes of death specified, and that
it was also alleged that the deceased was killed by certain means to
the jurors unknown. When there is no evidence applicable to a
particular count, that count must be abandoned ; but if there is
evidence to support a count, it must be submitted to the jury. In this
case the evidence goes to support all the counts.
Allen, Serjt., addressed the jur}' for the prisoners.
Pollock, C.B. (in summing up). The prisoners are charged with
contributing to the death of the deceased, by their negligence and
improper conduct. If they did so, it matters not whether he was
deaf, or drunk, or negligent, or in part contributed to his own death ;
for in this consists a great distinction between civil and criminal
proceedings. If two coaches run against each other, and the drivers of
both are to blame, neither of them has any remedy against the other
for damages. So, in order that one ship-owner may recover against
another for any damage done, he must be free from blame : he cannofc
recover from the other if he has contributed to his own injury, how-
ever slight the contribution may be. But in the case of loss of life,
the law takes a totally different view — the converse of the proposition
is true. For there each party is responsible for any blame that may
ensue, however large the share maybe; and so highly does the law value
human life, that it admits of no justification wherever life has been lost,
and the carelessness or negligence of any one person has contributed
to the death of another person. Generally, it may be laid down that,
where one by his negligence has contributed to the death of another, he
is responsible; therefore, you are to say, by your verdict, whether you
SECT. 111.] Reyina v. ISwiiulaU and 0.-<hnrne. 77
are of opinion that the dee-oased came to his dcalu in conse(jUL'iice <>£
the negligence of one or both of the prisoners. A distinction hus been
taken between the prisoners : it is said that tlie one who went lirst ia
rebj)onsible, but that the second is not. If it is necessary that both
should have run over the deceased, the case is not without evidence
that both did so. But it appears to me that the law as stat<id by
Mr Greaves is perfectly correct. Where two coaches, totally inde-
pendent^ of each other, are proceeding in the ordinary way along a road,
one after the other, and the driver of the first is guilty of negligence,
the driver of the second, who had not the same means of pulling up,
may not be responsible. But when two persons are driving together,
encouraging each other to drive at a dangerous pace, then, whether
the injury is done by the one driving the first or the second carriage,
I am of opinion that in point of law the other shares the guilt.
Verdict, Guilty.
[Principals in first and second degret^
REX V. WILLIAM MASTIN AND JOHN MASTIN
Gloucester Assizes. 1834. 6 Carrington and Payne 396.
The first count of the indictment charged that the prisoner, William
Mastin, rode against the horse of John Seeker, the deceased, whereby
he was thrown to the ground and killed ; and it then went on to
charge John Mastin as a principal in the second degree. There was
also a count charging that the prisoners were racing on the highway,
and that the horse of the deceased thereby became frightened, and
threw him.
It appeared that, on the evening of the 14th of September, tiie
prisoners, who were brothers, were on horseback, and were riding at a
very rapid pace along a rather unfrequented highway, leading from
Burford to Widford, and that the deceased was also on horseback.
It further appeared that the deceased drew off as far from the middle
of the road as the situation of the place would allow; and tiiat
John Mastin passed by him without any accident, but that the horse
of W^illiam Mastin and the horse of the deceased came into collision,
when both were thrown, and the deceased killed.
^ See tiie next ciise, Hex v. Masliii.
78 Select Cases on Cnminal Lav\ [part i.
Justice, for the prisoner John Mastin. I submit that the evidence
does not affect my client at all. Two persons were riding, and at a
rapid rate, and one goes by and does no mischief ; he certainly cannot
be guilty of manslaughter, because another, who comes up a little
afterwards, kills a person. The aiding which is charged in this in-
dictment is the aiding in some act which caused the death of the
deceased.
Curu-ood, for the prosecution. As both the prisoners were racing,
the act of one is the act of both.
Pattesox, J. I think that if two are riding fast, and one of them
goes by without doing any injury to any one, he is not answerable
because the other, riding equally fast, rides against some one and kills
him.
His Lordship directed the acquittal of John Mastin.
[Principal or Accessory before the /act.'\
THE QUEEN v. MANLEY.
Somerset Assizes. 1844. 1 Cox 104
Indictment for larceny. The facts, as proved by the prosecution,
were, that the prisoner was an apprentice of the prosecutor : that he
had induced the son of the prosecutor, a child of tlie age of nine years,
to take money from his father's till, and give to him. On cross-
examination, it further appeared that the child had done the like for
other boys.
Cox, for the prisoner, submitted that the evidence did not sustain
the indictment. The prisoner was charged with stealing money as
principal, — the evidence showed him to be either an accessory or a
receiver. If an otience be committed through the medium of an
innocent agent, the employer, though absent when the act was done, is
answerable as a principal. (Bex v. Giles, 1 Moody, C. C. 166 ; lieff. v.
Michael, 2 Moody, C. C. 120; 9 C. and P. 356.) But if the instrument
be aware of the consequences of his act, he is the principal in the first
degree ; and the employer, if he be absent when the fact is committed,
is an accessory before the fact. (Rex v. Stewart, R. and R. 363.) In
this case, the evidence had shewn, beyond doubt, that the child was
SECT. III.] The Qimn v. Mau/ri/. 79
of the age of discretion, and fully awaiv of tin; consequences of
his act.
WlGHTJlAN, J. What do you mean by :in mnoccnl a;,'ciit, it this
child be not one ?
Cox. An agent who, from age, defect of understanding, ignorunce
of the fact, or other cause, cannot be 2)articep!i criminis.
WiGHTMAN, J. But though an act done through the medium of an
innocent agent makes the prisoner a piincipal, how do you shew that
he is not a principal where the act is done through the medium of a
responsible agent ?
Cox. Because, if the agent be responsible, he becomes the pi-incipai ;
and to constitute a principal, he must be the actor or actual perpetrator
of the fact, or cognizant of the crime, and near enough to render
assistance. Though there be a previous concerted plan, those not
present or near enough to aid at the time when the oll'ence is com-
mitted are not principals, but accessories before the fact.
WiGHTMAN, J. (to the jury). Apart from the consideration of the
guilt or innocence of the prisoner generally, if you believe the story
told by the child, you will have to determine whether that child was
an innocent agent in this transaction ; that is, whether he knew that
he was doing wrong, or was acting altogether unconsciously of guilt
and entirely at the dictation of the prisoner ; for if you should be of
opinion that he was not an innocent agent, you cannot^ tiiid the
prisoner guilty as a principal under this indictment.
Verdict, Not guilty.
[Editor's Note. A confederate, by being present at the commission of the
offence, ceases to be au accessory before the fact, and becomes a principal. See
Rex V. Brown, 14 Cox 144.]
I
[Principal or Accessory before the fact."]
ANONYMOUS.
King's Bench. 1633. Kelyno 52.
Memorandum. That my brother Twisden shewed me a report
which he had of a charge given by Justice Jones to the grand jury at
1 [Editor's Note.] For 24 and 25 Vict. c. 94, s. 1 (see p. 82 h,jra) was not .vet
enacted.
80 Select Cases on Criminal Law. [part i.
the King's Bench bar in Micliaelmas Tenn 9 Car. I. In which he
said, that... if one drinks poison by the provocation or persuasion of
another, and dieth of it, this is murder in the person that persuaded
it. And he took this difference : If A. give poison to J. S. to give to
J. D. ; and J. S., knowing it to be poison, give it to J. D,, who taketh
it in the absence of J. S. and dieth of it, in this case J. S. who gave
it to J. D. is a principal. And A. who gave the poison to J. S. and
was absent when it was taken is but accessory before the fact. But
if A. buyeth poison for J. S., and J. S. in the absence of A. taketh it,
and dieth of it ; in this case A. though he be absent, yet he is principal.
So it is if A. giveth poison to B. to give unto C. ; and B., not knowing
it to be poison but believing it to be a good medicine, giveth it to C,
who dietli of it. In this case, A. who is absent is principal ; or else a
man sliould be murdered and there should be no pi-incipal. For B.
who knew nothing of the poison, is in no fault, though he gave it
to C. So if A. puts a sword into the hand of a madman, and bids
him kill B. with it ; and then A. goeth away, and the madman kills B.
with the sword as A. commanded him, this is murder in A. though
absent, and he is principal. For it is no crime in the madman who
did the fact ; by reason of his madness. And he said that this case
was lately before himself and Baron Trevor at the Assizes at Hereford.
A woman, after she had two daughters by her husband, eloped from
him and lived with another man. And afterwards one of her daughters
came to her; and she asked her " How doth your father'?" To which
her daughter answered that he had a cold ; to which his wife replied,
" Here is a good powder for him, give it him in his posset." And on
this, the daughter carried home the powder, and told all this that her
mother had said to her, to her other sister ; who in her absence gave
the powder to her father in his posset, of which he died. And he said
that, upon conference with all the judges, it was resolved that the
wife was principal in the murder ; and also the man with whom she
ran away, he being proved to be advising in the poison. But the two
daughters were in no fault, they both being ignorant of the poison.
.Vnd accordingly the man was hanged and the )uother burnt.
SECT. III.] Rex V. Savnders a ml Arr/irr. Hi
[Principal or Accessory. Innocent a(jrtit.'\
REX V. SAUKDEllS AND ARCHER.
Foster's Crow.v T,aw, ?,1\.
Saunders with intention to destro}' his wife, by the advic(; of one
Archer, mixed poison in a roasted apple, and gave it to her to eat.
She, having eaten a small part of it, gave the remainder to their child.
Saunders at this dreadful moment made a faint attempt to have savetl
the child ; but, conscious of the horrid purpose of his own heart, anrl
unwilling to make his wife a witness of it, desisted; and stood by an<l
saw tlie infant he dearly loved eat the poison, of which it soon after
wards died. It was ruled, without much difficulty, that Saunders was
guilty of murder of the child. [Cf. Reg. v. Snli.-^hury, p. 102 infra.']
With regard to Archer, it was agreed by the judges upon conference
that he was not accessory to this murder, it being an offence he neither
advised nor assented to. The judges however did not think it
advisable to deliver him in the ordinary course of justice by judgment
of acquittal : but, for example's sake, they kept him in priscjn by
frequent reprieves from session to session, till he had procured a
pardon from the Crown ; a measure prudence will often suggest in cases
of a doubtful or delicate nature.
[Principal or Accessory.^
THE QUEEN v. JAMES.
Crown Case Re^^erved. 1890. L.R. 24 Q.B.D. 439.
Case stated by Stephen, J.
On November 27, 1889, Nathan James was convicted at Gloucester
for stealing a post-letter, the property of the Postmaster-General, from
Edward Hopkins James, an officer of the Post Office, under the follow-
ing circumstances. Nathan James was a servant of Messrs Burlingliam
(i; Co., and it was his duty to take orders and receive money on their
behalf. Edward Hopkins James said, "The prisoner said to me, 'Will
you retain certain letters that are coming through the post from
Messrs Burlingham ; as they are accounts tliat have been paid in to nie,
6
82 Select Cases on Criminal Law. [part i.
and I don't want people to have them after they have paid their
account?' I said I thought it was wrong; and he afterwards said to
me if anyone was to suffer he would, not me." In consequence E. H.
James gave Shaw a good many of the letters in question instead of
delivering them to the persons to whom they were addressed. The
learned Judge directed the jury that if they believed this evidence it
proved that both Nathan James and E. H. James were guilty of theft.
If this direction was right, the conviction was to be affirmed ; if wrong,
it was to be quashed.
Lord Coleridge, C.J. I can entertain no doubt in this case.
Either the prisoner was a joint thief with the postman from whom he
obtained the letter, or he was an accessory before the fact, in which
case, by 24 and 25 Vict. c. 94, s. 1, he was hable to be convicted in all
respects as if he were a principal felon. In either case, therefore, he
was rightly convicted.
Pollock, B., concurred.
Hawkins, J. The prisoner was a thief, either as principal felon at
common law, or as accessory before the fact by statute, 24 and 25 Vict,
c. 94, s. 1. In either case he was guilty.
Grantham and Charles, J J., concurred.
Conviction affirmed.
[^Accessory after ihefact.'\
REGINA V. CHAPPLE AND OTHERS.
Central Criminal Court. 1840. 9 Carrington and Payne 355.
The indictment charged Thomas Chappie and Charles King with
breaking and entering the dwelling of John Porter, on the 7th of
September, at St Giles's in the Fields, and stealing therein fourteen
silver spoons and various articles, the property of the said John Porter.
It also charged Charles Chappie, Eliza Plant, Ann King, Henry Cox,
and Sophia Cox, with feloniously receiving, harbouring, comforting,
assisting, and maintaining the said Thomas Chappie and Charles King,
well knowing that they had committed the felony.
It appeared that the vari(.us prisoners who were charged with the
offence of liarbouring the felons, had been found in possession of various
sums of money derived from the disposal of the property stolen; but it
SECT, in.] llajina v. Chappie and Others. 83
did not appear, although they were in frequent coinmunicalion with
the persons charged with the felony, that, tliey had received any of
the stolen property itself, or had done any act to assist the felons
personally.
At the close of the case for tiie prosecution.
Law, Kecorder, intimated an opinion that the oflenco chargod, so
far as Charles Chappie and the others not indicted for the stealing were
concerned, was not made out by the evidence, as there was no act
shewn to have been done by them to assist the felons personally. He
referred to a case in which it had been held that writing letters, to
intimidate the witnesses and prevent them from coming forward to
give evidence, was not a harljouring and assisting of the felon. He
then went into the adjoining Court for the purpose of consulting on
the subject with Mr Justice Littledale and Mr Baron Alderson; and on
his return said, "I have mentioned the case to the learned Judges a.*;
shortly as I could, so as not to cause an interruption of the public
business, and the answer was what I expected, viz. that in their opinion
the proof amounts to evidence of an imperfect receiving, and not to the
otience charged in the indictment."
Verdict — Thomas Chappie and Charles King guilty of
breaking and entering, &c., and the other prisoners
not guilty.
SECTION IV.
INCHOATE CRIMES.
[^Incit&nients.^
THE KING V. HIGGINS.
King's Rexctt. 1801. 2 East 5.
The defendant was indicted for a misdemeanor at the Quarter
Sessions for the county of Lancaster, and was convicted on the second
count of the indictment, charging, "That he on, »tc. at, etc. did falsely,
wickedly, and unlawfully solicit and incite one James Di.xon, a
servant of J. Phillips, kc. to take, embezzle, and steal a quantity of
twist, of the value of three shillings, of the goods and chattels of his
masters, J. P., Ac. aforesaid, to the great damage of the said J. P., <tc.
to the evil example, »tc., and against the peace," etc. After judgment
6—*
84 Select Cases on Criminal Law. [part i.
of the pillory and two years' imprisonuu'iit, a writ of error was
brought....
For the defendant it was urged that the count in question con-
tained no charge of any matter indictable at common law. It is not
every act immoral in itself, or of evil example, which is indictable,
although it may subject the party to hnd sureties of the peace. A bare
solicitation or incitement of another to commit an otfence is not
indictable, unless it be accompanied by some overt act towards carry-
ing the intent into execution; if no such act be done either by the
inciter or the party solicited, it is nothing more, as Mr Justice Foster
observes, than a mere fruitless ineffectual temptation —
On the part of the Crown it was contended that every attempt
to commit a crime, whether felony or misdemeanor, is itself a mis-
demeanor and indictable ; a fortiori in the former case. And if an
act be necessary, the incitement or solicitation is an act : it is an
attempt to procure the commission of a felony by the agency of another
person. By the incitement the party does all that is left for him to
do to constitute the misdemeanor; for if the felony be actually com-
mitted, he is guilty of felony as accessory before the fact
Lord Kenyon, C.J....It is argued, that a mere intent to commit
evil is not indictable, without an act done ; but is there not an act
done, when it is charged that the defendant solicited another to
commit a felony? The solicitation is an act; and the answer given at
the bar is decisive, that it would be sufficient to constitute an overt
act of high treason. The case of The Kingy. Vaughan^ was not passed
over slightly. It was there attempted to be maintained, that an
attempt to bribe the Duke of Grafton, then a cabinet minister and
a member of the privy council, to give the defendant a place in
Jamaica, was not indictable. Lord Mansfield rejected the attempt
with indignation. It was a solicitation to the duke to commit a great
otfence against his duty to the king and the public. So it is here :
and it would be a slander upon the law to suppose that an offence of
such magnitude is not indictable....
Lawrence, J All such acts or attempts as tend to the prejudice
of the comnmnity, are indictable. Then the question is, whether an
attempt to incite another to steal is not prejudicial to the community?
Of this there can be no doubt. The wliole argument for the defend-
ant turns upon a fallacy in assuming that no act is charged to have
been done by him ; for a solicitation is an act. The offence does not rest
in mere intention ; for in soliciting Dixon to commit the felony, the
1 4. BuiT. •2i'Ji.
SECT. IV.] The Kdhj v. Jlh/i/ins. 85
defendant did an act towards currying his intent into executiuu. It ia
an endeavour or attempt to commit a crime....
Le Blanc, J. It is contended that the offcnrc charged in tlie
second count, of which the defendant has l^oen convicted, is no niLs-
demeanor; because it amounts only to a ])are wish or desire of the
mind to do an illegal act. If that were so, I agree that it would not
be indictable. But this is a charge of an act done ; namely, an actual
solicitation of a servant to rob his master, and not mciely a wish or
desire that he sliould do so.
[Attempts.^
REGINA V. CHEESEMAN.
Crown Case Heserved. 1862. Leigh and Cave 140.
The following case was reserved by Blackbuhn, J.
Edwin Cheeseman was tried before me at the last Maidstone
Assizes. The indictment contained three counts.
The first charged the prisoner with fraudulently keeping a false
weight, and selling thereby to the Queen 467 lbs. of meat as 512^ lbs.
The second count stated that Alfred Cheeseman was accustomed to
furnish the Queen with large quantities of meat for the supply of
soldiers, and that the prisoner, being his servant, fraudulently kept
a false weight, &c., as in the first count.
The third count was for an attempt to steal 45 lbs of meat of
Alfred Cheeseman.
On the trial it was proved that Alfred Cheeseman was the con-
tractor who supplied meat to the Camp at ShornclifF.
On the 27th of June, the prisoner, who was a servant of tlie con-
tractor, came down in charge of the meat; and he and the Quarter-
Master- Serjeant proceeded to weigh out the meat to the dilTi-rent
messmen with the Quarter-Master Serjeant's weights, the prisoner
being the person who put the weights in the scala Before the weigh-
ing was complete, one of the messmen brought back his mess portion,
with a complaint that it was short weight. It was discovered that the
14-lb. weight belonging to tlie Quarter-Master-Serjeant had been
rt'moved, and concealed under a bench; and that a false 14-Ib. weight
had been substituted for it, and used in weighing out the thirty-four
mesaes ; and that the prisoner had absconded on the commencement of
86 Select Cases on Criminal Lair. [part l
the investigation. The messes were all brought back and re-weighed,
and it was found that the weight delivered was 467;^^ lbs., instead of
being 512^ lbs., as on the first weigliing it had appealed to be; and,
after the true weight was supplied to the different messes, the surplus
remaining to be taken by the contractor's men was about 15 Ujs.,
instead of being about 60 lbs., as it had appeared to be.
The counsel for the prisoner objected that there was no case to go
to the jury, inasmuch as the circumstances stated did not amount to
a cheat at common law ; and there was no overt act so proximately
connected with an act of stealing as to justify a conviction under the
third count.
The jury, in answer to questions from me, found that the prisoner
fraudulently substituted the false 14-lb. weight for the true weight,
with intent to cheat ; that his intention was to carry away and steal
the difference between the just surplus of about 15 lbs., for which he
would have to account to his master, and tlie apparent surplus meat
actually remaining after the false weigliing ; and that nothing remained
to be done on his part, to complete his scheme, except to carry away
and dispose of the meat, which he would have done, had the fraud not
been detected.
I directed a verdict of ISTot Guilty on the first count, and Guilty on
the second and third counts, and reserved for this Court the question,
whether on these facts and findings the prisoner was properly convicted
on either of those counts.
The prisoner was admitted to bail.
This case was argued, on the 18th of January, 1862, before
Erle, C.J., Blackburn, J., Wilde, B., and Mbllor, J.
JRihton, for the prisoner, contended that the second count disclosed
no offence indictable at common law, and that there was no evidence to
support it. With regard to the third count, the jury found that the
prisoner intended to steal the difference between the just and the ficti-
tious surplus. A verdict of Guilty of an attempt to steal was not
warranted by that finding of the jury. To constitute an attempt, there
must be some overt act proximately connected with the offence charged.
Here there was no overt act. Nothing was done by the prisoner with
reference to stealing the meat j all that he did was to put a false weight
in the scale, and that act was too remote. There is a marked difference
between attempting to attain an object, and the mere doing an act
with intent to attain that object. A man may do an act with an
intent to commit some crime anywhere ; for example, a man may buy
a rifle in America with intent to shoot a man in England ; but the
buying the rifle could not be construed into an attempt to bhuut the
siXT. IV.] Rerfina v. Cheesemau. 87
man\ Again, if a notorious buri,'lar is seen to put a picklock key into
a door, the jury may assume that he is attempting to brc-ik int<j the
house. But, if he were found purchasing a picklock key ten miles fmm
the house in question, it would be impossible, without otlier evidence,
to say that it was bought with intent to break into that house...,
Erle, C.J. I am of opinion that the prisoner was properly ccn-
▼icted. It is not necessary to decide whether the prisoner coidd Ikj
convicted on the second count, for there is abundant evidence to
support the third. The prisoner, having charge of the meat, went
through the form of delivering it, but kept back part of what he ought
to have delivered. Now, if he had actually moved away with any part
of the meat, the crime of larceny would have been complete. It is
said, however, that the evidence here does not show any such proximate
overt act as is sufficient to support the conviction for an attempt t<j
steal the meat. In my opinion, there were several overt acts, which
brought the attempt close to completion. These were, the preparation
of the false weight, the placing it in the scale, and the keeping liack
the surplus meat. It is almost the same as if the prisoner had been
sent with two articles, and had delivered one of them as if it had been
two. To complete the crime of larceny there only needed one thin^r,
the beginning to move away with the property. The meat was in the
prisoner's custody and under his control. He had almost the manual
comprehension of it, and had all but begun the asportation.
Blackburn, J. I am of the same opinion. There is, no doubt,
a difference between the preparation antecedent to an oHence, and the
actual attempt. But, if the actual transaction has commenced which
would have ended in the crime if not interrupted, there is clearly an
attempt to commit the crime. Then, applying that principle to this
case, it is clear that the transaction which would have ended in the
crime of larceny had commenced here.
Couvictiou alhrmed.
* See Leg. v. Eatjlcton (Deaisly, at p. 525).
88 Select Cases on Criminal Law. [part i.
[An attempt to do what is impossible 7nai/ be indictable.]
THE QUEEN v. RING AND OTHERS.
Ceown Case Reserved. 1892. 61 L.J.R. (M.C.) 116.
This was a case stated by the learned Deputy- Chairman of the
London County Sessions, held at Clerkenwell; before whom the prisoners
were indicted for an attempt to steal.
The material evidence, given by an employ^ of the Metropolitan
Railway Co., was as follows: "I was at King's Cross Station, on duty
on the platform, when I saw the three prisoners The 12.50 train came
in. They closed up together. Some females were entering a third-class
compartment. I saw the three prisoners get behind these women. I saw
Atkins trying to find one woman's dress-pocket; the other two prisoners
were hustling her. The woman looked up at Atkins, They then sepa-
rated and got into difl'erent compartments of the train. I got in the
same train. I jumped out at Gower Street. I saw the three prisoners
get out. There were a lot of females getting in, and these men all
closed round them just as before. I .saw Atkins again trying to find
a woman's pocket; the woman looked up at. him. They separated;
and again got into different compartments of the same train.. ..At
Baker Street all got out and were arrested." There was no evidence
that there was anything in the pockets of the unknown females ; no
one having been in communication with them. The case was left to
the jury by the learned Deputy-Chairman, who, having doubts whether
The Queen v, Collins'^ had been overruled by The Queen v. Brown',
reserved the question for the opinion of the Court. The jury found all
three prisoners guilty. The question for the opinion of the Court is
whether the learned Deputy-Chairman was right in leaving the case to
the jury.
Lord Coleridge, C.J. I am of opinion that the conviction should
be affirmed. The case was stated by the Deputy-Chairman to ascertain
whether The Queen v. Collins ^ is stiU law. That case is no longer law.
It was overruled by The Queen v. Brown^, which was decided by five
judges ; and the present case is decided by five judges, one of whom
was one of the judges in The Queen v. Brown^. Therefore, nine
judges are of opinion that The Queen v, Collins^ is no longer law.
Hawkins, J. I tinhesitatingly say that I am entirely of the same
opinion.
Wills, J., Lawbance, J., and Wright, J., concurred.
Conviction aliirnied.
1 L. and C. 471 ; 33 L. J. R. (M. C.) 177.
2 5'J L. J. R. (M. C.) 47 ; L. R. 24 Q. B. D. 357.
PART II.
DEFINITIONS OF PARTICULAR CRIMES.
SECTION I.
SUICIDE.
REX V. DYSON.
Crown Case TIbserved. 1823. Russell and Ryan 523.
The prisoner was tried before Mr Justice Best, at the old Bailey
Sessions, for the murder of Eliza Anthony. He had cohabited with
the deceased for several months previous to her death, and she was
with child by him. They were in a state of extreme distress. Being
unable to pay for their lodgings they quitted them in the evening of
the night on which the deceased was drowned, and had no place of
shelter.
They passed the evening together at the theatre. After the per
formance was over, they called at a house in Sherrard Street, and from
thence went to Westminster Bridge, to drown themselves in the
Thames. They got into a boat, and from that into another boat. The
water where the first boat which they entered was moored was not of
sufficient depth to drown them. They talked together for some time
in the boat into which they had last got, he standing with his foot on
the edge of the boat, and she leaning on him. The prisoner then
found himself in the water, but whether by actual throwing of himself
in or by accident did not appear. He struggled to get back into the
boat again, and then found that Eliza Anthony was gone.
He then endeavoured to save her, but he could not get to her, and
she was drowned.
90 Select Cases an Criminal Law. [part ii.
In his statement before the magistrates (which was read in evidence)
lie said, that he intended to drown himself, but dissuaded Eliza Anthony
from following his example.
The learned Judge told the jury, that if they believed that tlie
prisoner only intended to drown himself, and not that the woman
should die with him, they should acquit the prisoner ; but, that if both
went to the water for the purpose of drowning themselves together,
each encouraged the other in the commission of a felonious act, and
the survivor was guilty of murder.
He also told the jury, that although the indictment charged the
prisoner with throwing the deceased into the water, yet if he was
present at the time she threw herself in, and consented to her doing it,
the act of throwing was to be considered as the act of both, and so
the case was reached by the indictment.
The jury told the learned Judge that they were of opinion that
both the prisoner and the deceased went to the water together for the
purpose of drowning themselves : and the prisoner was convicted.
But the learned Judge thought it right to submit a question to the
consideration of the Judges, nauiely, whether his direction was right.
In ISIichaelmas Term, 1823, the case was considered by nine of
the Judges. They were clear that if the deceased threw herself into
the water by the encouragement of the prisoner, and because she
thought he had set her the example in pursuance of their previous
agreement, he was a principal in the second degree, and was guilty of
murder. But as it was doubtful whether the deceased did not fall in by
accident, it was not murder in either of them ; and the prisoner was
recommended for a pardon.
[See also the cases of The Commonwealth v. Bowen, and The
Commonwealth v. Mink, infra, p. 91 and p. 110.]
SECT. II.] The Common mill I h v. linnen. 91
SECTION II.
MURDER AND MANSLAUGHTER.
Chapter I. The External Act.
[The deceased must be under the King's Peace; but even a condemned
criminal is under it.]
THE COMMONWEALTH v. BOWEX.
Supreme Court op Massachusetts. 1816. 13 jNIass. 356.
Indictment for murder of Jonathan Jewett.
The evidence was that Jewett had l)oen convicted of the murder of
his father, and sentenced to sufier death. Bowen was a prisoner in
the same prison ; confined in an apartment adjacent to that in which
Jewett was, and in such a situation that they could freely converse
together. Bowen frequently advised and urged Jewett to destroy
himself, and thus disappoint the Sheriff and the people who might
assemble to see him executed. In the night preceding the day fixed
for his execution, Jewett put an end to his life, by suspending himself
by a cord from the grate of the cell in which he was imprisoned.
Parker, C. J., in the course of charging the jury, said : — It may
be thought singular and unjust that the life of a man shoukl be
forfeited, merely because he has been instrumental in procuring the
death of a culprit a few hours bef(ire his death by the sentence of the
law. But the community has an interest in the execution of criminals;
and to take such an one out of the reach of the law is no trivial
ofteuce. Further, there is no period of human life which is not
precious as a season of repentance. And a culprit, though under
sentence of death, is cheered by hope to the last moment of his
existence. Hence you are not to consider the atrocity of this offence as
in the least degree diminished by the consideration that justice was
thirsting for a sacrifice, and that but a small portion of Jewett's
earthly existence could in any event remain to him.
[The jury acquitted the prisoner; from a doubt whether the advice
CTiven by him was in any measure the prucuring cause of Jewett's
death.]
92 Select Cases on Criminal Law, [part il
\The killing may be by a protracted chain of causation.^
ANONYMOUS.
King's Be?tch. 1328. Year Book, 2 Edw. III., f, 18, Hil. pi. 1.
One Thomas was indicted in the county of W. for that he tuok one
Nicholas, his father, who was sick ; and, against his will and desire,
carried him from one town to another ; and the weather was cold ; so
that the cold and the carrying hastened his death. Thomas sued that
the indictment might be caused to come before the King a fortnight
after St Hillary. And because in the indictment nothing was said of
felony, the Justices would not arraign him; but made him find good
mainprise to have his body before the King a fortnight after Easter,
and in the meantime they would direct the sheriff and coroners to
certify them whether there was another indictment or no.
\_A similar chain of causatioi.']
THE HARLOT'S CASE.
Chester Assizes. 1560. Crompton's Justice, 24.
A harlot woman was delivered of a child. She laid it away, alive,
in an orchard; and covered it with leaves. A kite struck at it with his
claws. In consequence of being thus stricken, the child died very soon
afterwards. She was arraigned of murder; and was executed For
she had intended the child's death'; and voluntas reputatur pro/acto.
* [Editoe's Note. See Blackstone iv. ch. 14 ; and Stephen's Digest, art. 244.
Sir James Stephen's note treats the case as one of gross negligence rather than of
that express intention which the Eeporter's language suggests. For it is not clear
whether she meant the leaves to act as a concealment or as a protection. In either
case, the woman's crime would be murder in that age; when, as Sir James pomts
out, birds of prey were far more common than nuw.j
SECT. II.] Rex V. Hickman. 93
[^Prisoner's act not the immediate cause of deaih.A
REX V. HICKMAN.
Oxford Assizes. 1831. 5 Carrington a\u Pavnt. 1.51
Indictment for Manslaughter,... The prisoner and the decejused,
being both on horseback, had a quarrel. The prisoner struck the
deceased with a small stick, and he rode away along the Holyhead
road, the prisoner riding after him; and on the deceased spurring hia
horse, which was a young one, the horse winced and threw him....
Mr Justice Park.... In the case of Rex v. Kvans (see Russell on
Grimes 6th Edn. p. 12) it was held that if the death of the deceased,
who was the wife of the prisoner, was partly occasioned by blows, and
partly by a fall out of a window, (the wife jumping out at the
window from a well-grounded apprehension of further violence that
would have endangered her life), the prisoner was as much answerable
for the consequences of the fall as if he had thrown her out at the
window himself.
Verdict, Guilty.
[Deceased's own OTnission the imm,ediate cause of death.^
REGINA V. HOLLAND.
Liverpool Assizes. 1841. 2 Moody and Rob. 35L
Indictment for Murder.
Deceased had been waylaid and assaulted by the prisoner; and
among other wounds was severely cut across one of his fingers by an
iron instrument. His surgeon urged him to submit to the amputation
of the finger, telling him that unless it were amputated his life would
be in great hazard ; but he refused to allow the amputation. The
deceased attended the infirmary from day to day to have his wounds
dressed. At the end of a fortnight, however, lockjaw came on; in-
duced by the wound on the finger. The finger was then amputated,
but too late; and the lockjaw ultimately caused death. The surgeon
deposed that, if the finger had been amputated in the first instance,
he thought it most probable that the life of the deceased would have
been preserved.
94 Select Cases on Criminal Laic. [part ii.
For the prisoner it was contended that the cause of death was not
the wound inflicted by the prisoner, but the obstinate refusal of the
deceased to submit to proper surgical treatment by which the fatal
result would have been prevented.
Maule, J., however, was clearly of opinion that this was no defence.
He told the jury that if the prisoner wilfully, and without any justifi-
able cause, inflicted on the deceased the wound which was ultimately
the cause of death, he was guilty of murder. And that for this purpose
it made no difference whether the wound was instantly mortal in its
own nature, or became the cause of death only by reason of the
deceased's not having adopted the best mode of treatment. The real
question was, whether in the end the wound was the cause of death.
Verdict, Guilty.
[See also Reg. v. Markuss, infra-l
[Deceased's oivn act tlie ivitnediate cause of death.'\
REGINA V. SAWYER.
Central Criminal Court. 1887. Skssions Papers cvi.
John Sawyer was indicted for, and charged on the Coroner's
Inquisition with, the manslaughter of Annie Sawyer.
Ann Joyce stated that she lived next door to the prisoner and his
wife. She heard Mrs Sawyer say, through the window, to the prisoner,
who was in the street, " I will shut the door." He said, " We wiU see,"
and he walked upstairs. Within five minutes after, she heard a loud
scream. Then she heard a thud, and the window shut ; she looked out
and saw a dark figure in the street, as it lay. The prisoner came out
at the door and stooped over the figure, took hold of it by the arm
and said, "You are mad ! what made you do it?" [In cross examina-
tion, witness said " I do not think prisoner knew I was there when he
used these words; and no one else was there, that I could see."]
Witness then said, "Poor Mrs Sawyer, how did it happen?" She
replied, " I jumped through the window." The prisoner was by, at the
time she said it.
Alfred Humphreys stated that he was outside the house at the
time. He heard a slight rattle of glass, the shaking of the window
frame, tlien a slight scream, and a woman's voice directly after. She
SECT. II.] Reyiua v. Savyer. 9')
said "Oh, don't." Thou a prolonged scream and a tlmd on tlio pave-
ment. Just before hearing the thud lie saw something light pass before
his eyes
Geoghegan submitted that this evidence did not establish a case
of manslaughter. So far as the evidence went, the deceased might
have jumped out at the window because she was afraid the prisoner
might strike her ; and not because of any actual violence on his part.
Griffiths contended that there were questions for the jury, — viz.
whether the prisoner had actually thrown the deceased out ; and, if
not, whether he had used such violence to her as to cause her to throw
herself out. In either case it would amount to at least manslaughter.
Mr Justice Stephen decided to leave the case to the jury. He
directed them to say, if, in their opinion, either by actual violence, or
threats' of violence, on the part of the prisoner, the deceased was forced,
as her only means of escape, to jump from the window. In that case
it would be manslaughter. But if she did the act, constrained by
despair operating upon her mind, that would not be sufficient, and they
should acquit him.
Verdict, Not guilty.
\^Death from nervous shock.^
REGINA V. TOWERS.
Carlisle Assizes. 1874. 12 Cox 530.
Wilson Towers was charged with the manslaughter uf John
Hetherington, on Sept. 6th, 1873.
The prisoner, who had been drinking, went on August 4th into
a public-house kept by the mother of the deceased. He there saw
a girl called Fanny Glaister, nursing the deceased child ; who was then
only about four months and a half old. The prisoner, who appeared
to have had some grievance against Fanny Glaister (about her hitting
one of his children), immediately on entering the public-house went
straight up to where she was, took her by the hair of the head, and hit
1 [Edh. Bs Note.] Similarly in Reg. v. Parker, [a.i.. 180:iJ, C.C.C. Sess. Pap.
Lix. 393, where "grievous bodily harm " was caused to a woman by her own act in
jumping out of a window, it was held that "If she threw lierself out in \hv
immediate apprehension of the prisoner's violence, it is his act, and he is liable."
96 Select Cases on Criminal Law. [part ii.
her. She screamed loudly. This so frightened the infant that it
became black in the face ; and ever since that day, up to its death, it
had convulsions, and was ailing generally, from a shock to the nervous
system. The child was previously a very healthy one.
Denman, J., said that it might be that manslaughter had been
committed. The prisoner committed an assault on the girl, which is
an unlawful act ; and if that act, in their judgment, caused the death
of the child {i.e. if the child would not have died but for that assault),
they might find the prisoner guilty of manslaughter. This was one of
the new cases to which they had to apply old principles. If he were
to say, that murder could not be caused by such an act as this,
he might be laying down a dangerous precedent for the future ;
for, to commit a murder, a man might do the very same thing this
man had done. They could not commit murder upon a grown-up
person by using language so strong, or so violent, as to cause that
person to die; therefore, mere intimidation, causing a person to die
from fright by working upon his fancy, was not' murder. But there
were cases in which intimidations had been held to be murder. If,
for instance, four or five persons were to stand round a man, and
so threaten him and frighten him as to make him beUeve that his
life was in danger, and he were to back away from them and
tumble over a precipice to avoid them, then murder would have
been committed. Then did, or did not, this principle of law apply to
the case of a child of such tender years as the child in question?
For the purposes of the case he would assume that it did not ; for the
purposes of to-day he should assume that the law al)out working upon
people by fright did not apply to the case of a child of such tender
years as this. Then arose the question, which would be for them to
decide, whether this death was directly the result of the prisoner's
unlawful act — whether they thought that the prisoner might be held
to be the actual cause of the child's death — or whether they were left
in doubt upon that upon all the circumstances of the case. After
referring to the supposition that the convulsions were brought on
owing to the child's teething, he said that, even though the teething
might have had something to do with it, yet if the man's act brought
on the convulsions, or brought them to a more dangerous extent, so
that death would not have resulted otherwise, then it would be
manslaughter. If, however, the jury thought that the act of the
' [Euitoe's Note.] But see now Rex v.Hayward (21 Cox 6'.l3), where Ridley, J.,
ruled that "No actual physical violence is necessary; death from Fright alone, if
caused by an illegal act (such as Threats of violence), will suliice."
SECT. II. J Regiiia v. Towers. j)7
prisoner in assaulting the girl wu.s entirely imconnectod with ihc
death, that the death was not caused by it but by a combination
of [other] circumstances, it would be accidental death and not niau-
slauichter.
[^Bnt p7'{sone7-'s act must not he too remote a cause.'\
REX V. MACDANIEL.
Old Bailey Sessions. 1756. Leach U.
At the Old Bailey January Session 1754, one Joshua Kidden was
tried before Mr Justice Foster, for robbing Mary Jones, Widow, on
the highway, of one guinea, a half-crown, and two shillings and six-
pence. The prosecutrix swore very positively to the person of the
prisoner, and to the circumstances of the robbery, in which she was
confirmed by one Berry. Thus Kidden, on the evidence of these two
witnesses, was convicted and executed ; and on the 1st of March
following, the reward of forty pounds, given by 4 and 5 Will, and
Mary, c. 8, to those who shall convict a highway robber, was divided
between the prosecutrix Mary Jones, John Berry, Stephen Macdaniel,
and Thomas Cooper. The history of this prosecution lay concealed
until August, when... it was discovered to have been a conspiracy to
obtain the reward ^
Diligent search was accordingly made to apprehend the miscreants
concerned in this extraordinary transaction. At the Old Bailey in
June Session 1756, Stephen Macdaniel, John Berry, and Mary Jones,
were indicted before Mr Justice Foster (present Mr Baron Sniythc)
for the wilful murder of Joshua Kidden, in maliciously causing him
to be unjustly apprehended, falsely accused, tried, convicted, and
executed, well knowing him to be innocent of the fact laid to his
charge, with an intent to share to themselves the reward, etc. The
prisoners were convicted, upon the clearest and most satisfactory
evidence, of the fact ; and a scene of depravity was disclosed, as horrid
as it was unexampled. The judgment, however, was respited ; upon
a doubt whether an indictment for murder would lie in this case.
The special circumstances were accordingly entered upon the record,
1 [Editor's Noxe.] Macdaniel and his confederates had made altogether some
£1700 by rewards for procuring the convictions of about seventy persons. Cf.
p. 259 infra.
7
98 Select Cases on Criminal Law. [part ii.
together with an additional finding of the jury, " That Justice-Hall, in
the Old Bailey, is situated within the County of the City of London ;
yet that felonies committed in the County of Middlesex have from
time immemorial been accustomed to be tried there"; in order
that the point of law might be more fully considered upon motion in
arrest of judgment. But Sir Robert Henley, the Attorney-General,
declined to argue it; and the prisoners were, at a subsequent session,
discharged from that indictment.
Sir William Blackstone however says (iv. 196) that there were
grounds to believe it was not given up from any apprehension that the
point was not maintainable, but from other prudential reasons ^.
In May Session, 1759, they were again put to the bar, upon an
indictment for conspiring to defeat the public justice of the kingdom,
in causing Joshua Kidden to be executed for a robbery which they
knew he was innocent of, with intent to get into their possession the
reward offered by Act of Parliament ; but no evidence appearing, they
were all three acquitted.
\Prisoner's act too remote.^
REGINA V. BENNETT.
Crown Case Reserved. 1858. Bell 1.
The following case was reserved by Willes, J.
William Bennett was convicted before me of manslaughter.
The substantial question is whether a person who makes fireworks,
contrary to the 9 & 10 W. III. c. 7 -, is indictable for manslaughter if
death be caused by a fire breaking out amongst combustibles in his
possession, collected by him, and in the course of use, for the purpose
of his business, but not completely made into fireworks at the time.
The prisoner had a firework shop where he openly carried on the
business of selling fireworks
^ He probably means a fear that witnesses in capital cases (then so numerous)
would be rendered afraid to give evidence. Sir Michael Foster, however (Crown
Law liiO), thinks such crimes are not homicide; for, if they were, Titus Gates
would have been tried for murder.
^ Which, under a penalty of £5, forbade the manufacture of fireworks. It was
repealed by 23 & 24 Vict. c. 139.
SECT. II.] Regina v. Bcnnitt.
•)9
On Monday the iL'th of July, about six in tlw; evening', tlu; prisoner
being out of the house and not personally interfering, a tire broke out
in the red and blue tire which communicated to the fireworks, causiii"
a rocket to cross the street and set fire to a house at the opposite aide
in which the deceased Sarah Williams was, consequently, Ijurnt to
death.
The fire was arcidental in the sense of not being wilful or desifrncd.
It did not happen through any personal interference or negligence of
the prisoner; and he is entitled to the benefit of any distinction
between its happening through negligence of his servants or by pure
accident without any such negligence.
It was contended that there was no case against the prisoner, inas-
much as the cases of red <kc. fire were only parts of fireworks and not
within the statute ; and that it did not appear that it was by reason
of making fireworks the mischief happened; and that, at all events,
the death of the deceased was not the direct and immediate result of
any wrong or omission on the prisoner's part : and there was cited a
case from the Sessions Reports at the Old Bailey, in which Mr Baron
Alderson is reported to have held that an indictment for manslaughter
was not maintainable under such circumstances.
I, however, overruled these objections, holding that the prisoner
was guilty of a misdemeanor in doing an act with intent to do what
was forbidden by the statute; and that, as the tire was occasioned by
such misdemeanor, and without it would not have taken place, or
could not have been of such a character as to cause the death of the
deceased, which otherwise would not have taken place, a case was made
out.
CocKBDRN, C. J. It appears that the prisoner kept in his house a
quantity of fireworks, but that circumstance alone did not cause the
fire by which the death was occasioned; but, the fireworks and the
combustibles kept by the defendant for the purpose of his business
being in the house, the fire was caused by the negligence of the
defendant's servants. Can it be contended that, under such circum-
stances, the defendant is criminally responsible ?
Martin, for the Crown. The explosive nature of these substances
kept by the defendant in such a place is to be considered ; and, if the
keeping of the fireworks was unlawful, the prisoner would be responsible
for all the consequences of that unlawful act.
CocKBURN, C. J. The keeping of the fireworks in the house by
the defendant caused the death only by the superaddition of the
negligence of some one else. By the negligence of the defendant's
servants the fireworks ignited, and the house in which the deceased
7—2
100 Select Cases on CHminal Law. [part ii.
was set on fire and death ensued. The keeping of the fireworks
may be a nuisance; and if, from the unlawful act of the defendant,
death had ensued as a necessary and immediate consequence, the con-
viction might be upheld. The keeping of the fireworks, however, did
not alone cause the death : plus that act of the defendant, there was
the negligence of the defendant's servants.
WiLLES, J. The fire which caused the death did not happen
through any personal interference or negligence of the defendant.
The keeping of the fireworks in the house was disconnected with the
negligence of the defendant's servants which caused the fire.
Cock BURN, C. J. The view which we all take of the case is, that
the prisoner cannot be convicted upon these facts.
Chapter II. The mental state in Murder,
(a.) an intent to kill.
See REGINA v. TYLER AND PRICE supra, p. 57.
^Persons with same intent do different acts.'\
REG. V. MACKLIN AND OTHERS.
Durham Assizes. 1838. 2 Lewin 225.
The prisoner was indicted for murder.
It appeared that a body of persons had assembled tofether, and
were committing a riot. The constables interfering for the purpose of
dispersing the crowd and apprehending the ofienders, resistance was
made to them by the mob; and one of the constables Avas beaten
severely by the mob. The different prisoners all took part in the
violence used against him ; some by beating him with sticks, some by
throwing stones, and others by striking him with their fists. Of this
aggregate violence the constable afterwards died.
SECT. II.] Rex V. Macklin and Others. 1 0 1
Alderson, B. Tho principles on which this case will turn are
these. If a person attacks another without justifiable cause, and from
the violence used death ensues, the question which arises ia, wliether
it be murder or manslaughter? If the weapon used were a deadly
weapon, it is reasonable to infer that the party intended death ; and if
he intended death, and death was the consequence of his act, it is
murder. If no weapon was used, then the question usually is, was
there excessive violence? If the evidence as to this be such as that
the jury think there was an intention to kill, it is murder; if not,
manslaughter. Thus, if there were merely a blow with a fist, and
death ensued, it would not be reasonable to infer that there was an
intention to kill; in that case, therefore, it is manslaughter. But if
a strong man attacks a weak one, though no weapon be used — or if
after much injury by beating, the violence is still continued — then the
question is, whether this excess does not shew a general brutality, and
a purpose to kill, and if so, it is murder. Again, if the weapon used
be not deadly, e.g., a stick, then the same question as above ^vill arise
for the determination of the jury, as to the purpose to kill. And in
any case, if the nature of the violence, and the continuance of it be
such as that a rational man would conclude that death must follow
from the acts done, then it is reasonable for a jury to infer that the
party who did them intended killing ; and to find him guilty of murder.
Again, it is a principle of law, that if several persons act together
in pursuance of a common intent, every act done in furtherance of
such intent by each of them is, in law, done by all. The act, however,
must be in pursuance of the common intent. Thus, if several were to
intend and agree together to frighten a constable, and one were to
shoot him through the head, such an act would afiect the individual
only by whom it was done. Here, therefore, in considering this case,
you, the jury, must determine, whether all these prisoners had the
common intent of attacking the constables. If so, ?ach of them is
responsible for all the acts of all the others done for that purpose.
And, if all the acts done by each, would, if done by one man, together
shew suc>, violence, and so long continued, that from them you would
infer an intention to kill the constable, it will be murder in them all.
If you would not infer such a purpose, you ought to find the prisoners
guilty only of manslaughter.
Verdict, Manslaughter,
102 Select Cases on Criminal Law. [part ii.
[Persons with different intents concur in the same actl^
[Intent to kill one man results in the killing of a different one.'\
REG. V. SALISBURY,
Shropshire Assizes. 1553. Plowden 100.
George Salisbury, John Yane Salisbury, Richard Salisbury, one
called Pigot, and another called Knowsley, were arraigned upon an
indictment of murder, for killing in the county of Denbigh one who
was servant to Doctor Ellis. At the end of the evidence, tlie Inquest
demanded of the Court this question, viz. if so be in truth that John
Yane Salisbury was in the company of them who, of their malice
prepense, killed him that is dead ; and when he saw them combating
together, took part with them suddenly but had not malice prepense,
and struck with the others him that is dead; — whether this be Murder
or Manslaughter in John Yane Salisbury.
The Court answered that if John Yane Salisbury had not malice
prepense, but suddenly took part with them who had malice prepense,
this is Manslaughter in him, and not Murder ; because he had not
malice prepense.
Quod nota bene. Lector. For I have heard this greatly doubted, viz.
if the master lies in wait in the highway to kill a man, and his
servants attend upon him, and the master does not make his servants
privy to his intent; and afterwards he, for whom the master lies in
wait, conies, and the master attacks him ; and his servants, seeing
their master fighting, take his part, and all of them kill the man,
whether or no this should be murder in the servants, as it shall be in
the master, because they, without malice prepense, took part with
him that had malice prepense. But this is by the above Rule of the
Court put out of doubt; viz. it shall only be manslaughter in the
servants.
And note that the Court said thus to the jury: You, jurors, have
heard the evidence which has been given to prove the prisoners guilty
of the murder whereof they are impeached. Which evidence proves
that the conspiracy was to kill Doctor Ellis ; and the malice prepense
was against him, and not particularly against his servant who is killed.
And therefore perhaps you will imagine that the evidence does not
maintain the indictment ; because no malice was against the servant,
whom the prisoners perhaps did not know, nor ever heard of him
before. We think it proper to tell you what the law is in this point,
to the intent that you may not err in it. And, Sirs, we take the law
SECT. II.] Regiua v. Salishi(n/. 1<>'^
to be, that the killing of him is inuiilcr in th(! prisoners, if they killed
him upon the malice which they had against the master. So that if
you shall find that they had malice against the Doctor, that malice
does in the eye of the law make the killing of him that was killed,
who was the doctox''s servant and in his company, to be Murder.
[Cf. Bex V. Saunders, p. 81 sm/wo.]
(b.) intent to do an unlawful act that is dangerous,
REX V. HALLOW AY.
Newgate Sessions. 1628. ..^ Choke, Car. 131.
Halloway was indicted for murdering one Payne. The indictment
■v^ras : — That he ex malitia sua praecogitata tied the said Payne at
a horse's tail, and struck him two strokes with a cudgel, being tied to
the said horse; whereupon the horse ran away with him and drew
him upon the ground three furlongs, and thereby brake his shoulder,
whereof he instantly died ; and so murdered him. Upon this indict-
ment, he being arraigned, pleaded Not guilty. Thereupon a special
verdict was found :— That the Earl of Denbigh was possessed of a park
called Austerley Park, and that the said Halloway was woodward of
his woods in the said park. That the said Payne, with others unknown,
entered the said park to cut wood there; and that the said Payne
climbed up a tree, and with an hatchet cut down some boughs thereof.
That the said Halloway came riding into the park ; and seeing the said
Payne on the tree, commanded him to descend, and he descending from
thence, the said Halloway stroke him two blows upon the back with his
cudgel. And the said Payne having a rope tied about his middle, and
one end of the rope hanging down, the said Halloway tied the end of
that rope to his horse's tail ; and struck the said Payne two blows upon
his back. Whereupon the said Payne, being tied to the horse's tail,
the horse, running away with him', drew him upon the ground three
furlongs, and by this means brake his shoulder, whereof he instantly
1 [Editor's Note. From this report, and still more clearly from the report of
the same case in 1 W. Jones, 198, it appears that the horse set off, from spontaneous
alarm— probably being startled by the sound of blows— and was not ridden away
by the parkkeeper. The case is therefore one of less malice— and consequently
is more instructive— than if Halloway himself had, as liiackstoue (iv. cL. li) re-
presents it, "dragged the boy along the park."]
104 Select Cases on Criminal Law. [part n.
died ; and the said Halloway cast him over the pales into certain
bushes. And whether upon all this matter found, the said Halloway
be guilty of the murder pro ut, they pray the discretion of the Court.
And if the Court shall adjudge him guilty of the murder, they find him
guilty of the murder. If otherwise, they find him guilty of man-
slaughter. This special verdict by certiorari was removed into the
King's Bench and defended three terms.
And the opinion of all the judges and barons was demanded, and
they all (besides Hutton, who doubted thereof) held clearly that it was
murder. For when the boy, who was cutting on the tree, came down
from thence upon his command, and made no resistance, and he then
struck him two blows, and tied him to the horse's tail, and then struck
him again, whereupon the horse ran away, and he by that means was
slain ; the Law implies malice. And it shall be said in Law to be
prepensed malice ; he doing it to one who made no resistance. And so
this term all the justices delivered the reason of their opinions ; where-
upon judgment was given, and he was adjudged to be hanged, and was
hanged accordingly.
REG. V. ERRINGTON AND OTHERS.
Newcastle Assizes. 1838. 2 Lewin 217.
The prisoners were charged with the murder of William Lee. It
appeared that the deceased, being in liquor, had gone at night into
a glass-house, and laid himself down upon a chest : and that while he
was there asleep the prisoners covered and surrounded him with straw,
and threw a shovel of hot cinders upon his belly ; the consequence of
which was that the straw ignited, and he was burnt to death. There
was no evidence in the case of express malice ; but the conduct of the
prisoners indicated an entire recklessness of consequences, hardly con-
sistent with anything short of design.
Patteson, J., pointed the attention oi the jury _tq_the distinctions
which characterise murder and manslaughter. He then adverted to
the fact of there being no evidence of express malice ; but told them
that if they believed the prisoners really intended to do any serious
injury to the deceased, although not to kill him, it was murder; whilst
SECT. II.] Bex V. Errington and Others. 105
if they believed their intention to have been only to frighten liiin in
sport, it was manslaughter.
The jury took a merciful view of the case, and returned a verdict
of manslaughter only.
(C.) UNLAWFUL AND DANGETIOUS EXCESS IN LAWFUL ACT OF
FORCE.
REX V. GREY.
Newgate Sessions. 1666. Kelyng 64.
John Grey being indicted for the murder of "William Golden, the
jury found a special verdict to this effect : — "We find that John Grey,
the prisoner, was a blacksmith, and that William Golden, the person
killed, was his servant. Grey commanded him to mend certain stamps,
being part belonging to his trade ; which he neglected to do. The said
Grey, his master, after coming in, asked the said Golden why he had
not done it; and then the said Grey told the said Golden, that if he
would not serve him he should serve in Bridewell. To which the said
Golden replied, that he had as good serve in Bridewell as serve the said
Grey, his master. Whereupon the said Grey, without any other provo-
cation, struck the said Golden with a bar of iron, which the said Grey
then had in his hand, and upon which he and Golden were working at
the anvil. And with the said blow he broke his skull, of which he
died. And if this be Murder," etc.
This case was found specially by my brother Wylde. I shewed the
special verdict to all my brethren, judges of the King's Bench, and to
my Lord Bridgman, Chief Justice of the Common Pleas. And we
were all of opinion that this was Murder. For if a father, master, or
schoolmaster will correct his child, servant or scholar, they must do it
with such things as are fit for correction, and not witli such instruments
as may probably kill them. For otherwise, under pretence of correc-
tion, a parent might kill his child, or a master his servant, or a school-
master his scholar. And a bar of iron is no instrument for correction.
It is all one as if he had run him through with a sword. And uiy
brother -M.orton said he remembered a case at Oxford Assizes, before
Justice Jone.«, then Judge of Assize, where a smith being chiding with
his servant, upoZi some cross answer given by his servant, he, having
106 Select Cases on Criminal Laiu. [part ii.
a piece of hot iron in his h.and, ran it into his servant's belly; and it
was judged Murder, and the party executed '.
And my Lord Bridgman said that in his circuit there was a woman
indicted for murdering her child, and it appeared upon the evidence
that she kicked her and stamped upon her belly, and he judged it
Murder. And my brother Twisden said he ruled such a case formerly
in Gloucester circuit ; for a piece of iron or a sword, or a great cudgel,
with which a man probably may be slain, are not instruments of correc-
tion. And therefore when a master strikes his servant willingly with
such things as those are, if death ensue, the law shall judge it Malice
prepense.
(d.) intent to commit a felony.
HEGINA V. SERNE AND GOLDFINCH.
Central Cuiminal Court. 1887. 16 Cox 311.
The prisoners Leon Serne and John Henry Goldfinch were indicted
for the murder of a boy, Sjaak Seme, the son of the prisoner Leon
Sern^ ; it being alleged that they wilfully set on fire a house and shop.
No. 274, Strand, London, by which act the death of the boy had been
caused.
It appeared that the prisoner Seru^ with his wife, two daughters
and two sons, were living at the house in question ; and that Sern^, at
the time he was living there, in Midsummer, 1887, was in a state of
pecuniary embarrassment, and had put into the premises furniture and
other goods of but very little value, which at the time of the fire were
not of greater value than £30. It also appeared that previously to
the fire the prisoner Serne had insured the life of the boy Sjaak Serne,
who was imbecile ; and on the 1st day of September, 1887, had insured
his stock at 274, Strand, for £500, his furniture for £100, and his rent
for another £100; and that on the 17th of the same month the
premises were burnt down.
^ Vide Dalton, 278, a case cited to be before Justice Walmsley, 43 Eli';;^, ^t
Stafford Assizes; where on words 'twixt husband and wife, he suddf''i^^j.j.,j(,l^ j gr
with a pestle and killed her; and it was adjudged Murder. Yet a-'^Xugband by law
may correct; but the pestle is not an instrument to correct witJb^ ,
SECT. IT.] Rffff'na V. Sfrntf and Gohlfiiwh. 1()7
Evidence was given on behalf of the prosecution that fires wore
Been breaking out in several parts of the premises at the same time,
soon after the prisoners had been seen in the shop together ; two fires
being in the lower part of the house ; and two above, on the floor
whence escape could be made on to the roof of the adjoining house,
and in w hich part were the prisoners and the wife and two daugliters
of Sern6, who escaped. That on the premises were a quantity of tissue
transparencies for advertising purposes, which were of a most inHara-
niable character ; and that on the site of one of the fires was found a
great quantity of these transparencies close to other inflamnialjle
materials. That the prisoner Serne, his wife and daughters, were
rescued from the roof of the adjoining house, the other prisoner being
rescued from a window in the front of the house ; but that the boys
were burnt to death.
Stephen, J. The definition of murder is unlawful homicidf with
malice aforethought • and the words malice aforethought are technical.
You must not, therefore, construe them, or suppose that they can be
construed, by ordinary rules of language. The words have to be con-
strued according to a long series of decided cases, which have given
them meanings different from those which might be supposed. One of
those meanings is, the killing of another person by an act done with an
intent to commit a felony. Another meaning is, an act done with the
knowledge that the act will probably cause the death of some person.
Now it is such an act as the last which is alleged to have been done in
this case ; and if you think that either or both of these men in the
dock killed this boy, either by an act done with intent to coiuniit a
felony (that is to say, the setting of the house on fire in order to cheat
the insurance company), or by conduct which, to their knowledge, was
likely to cause death, and was therefore eminently dangei'ous in itself —
in either of these cases the prisoners are guilty of wilful murder in
the plain meaning of the word. I will say a word or two upon one
part of this definition, because it is capable of being applied very
harshly in certain cases, and also because (though I take the law as I
find it) I very much doubt whether the definition which I have given,
although it is the common definition, is not somewhat too wide. Now
when it is said that murder means killing a man by an act done in the
commission of a felony, the mere words are sufficient to cover a case
, where a man merely gives another a push with an intention of
stealing his watch, and the person so pushed, having a weak heart or
some Other internal disorder, dies. To take another very old illustra-
tion ; it was said that if a man shot at a fowl with intent to steal it, and
accidentally killed a man, he was to be accounted guilty of nmrdt-r.
108 Select Gases on Criminal Law. [part ii.
because the act was done in, the commission of a felony. I very much
doubt, however, whether that is really the law, or whether the Court
for the Consideration of Crown Cases Reserved would hold it to be so.
The present case, however, is not such as I have cited, nor anything
like them. In my opinion the definition of the law which makes it
murder to kill by an act done in the commission of a felony might and
ought to be narrowed; whilst that part of the law under which the
Crown in this case claim to have proved a case of murder is main-
tained. I think that, instead of saying that any act done with intent
to commit a felony and which causes death amounts to murder, it
would be reasonable to say that any act known to be dangerous to life
and likely in itself to cause death, done for the purpose of committing
a felony, which caused death, should be murder. As an illustration of
this, suppose that a man, intending to commit a rape upon a woman,
but without the least wish to kill her, squeezed her by the throat to
overpower her, and in so doing killed her, that would be murder.
I think that everyone would say in a case like that, that when a person
began doing wicked acts for his own base purposes, he ri.sked his own
life as well as that of others. That kind of crime does not differ in
any serious degree from one committed by using a deadly weapon, such
as a bludgeon, a pistol, or a knife. If a man once begins attacking the
human body in such a way, he must take the consequences if he goes
further than he intended when he began. That I take to be the true
meaning of the law on the subject. In the present case, gentlemen,
you have a man sleeping in a house with his wife, his two daughters,
his two sons, and a servant, and you are asked to believe that this
man. with all these people under his protection, deliberately set fire to
the house in three or four different places, and thereby burnt two of
them to death. It is alleged that he arranged matters in such a way
that any person of the most common intelligence must have known
perfectly well that he was placing all those people in deadly risk. It
appears to me that if that were really done, it matters very little
indeed whether the prisoners lioped the people would escape or whether
they did not. If a person chose, for some wicked purpose of his own,
to sink a boat at sea, and thereby caused the deaths of the occupants,
it matters nothing whether at the time of committing the act he hoped
that the people would be picked up by a passing ves.sel. He is as
much guilty of murder, if the people are drowned, as if he had flung
every person into the water with his own hand. Therefore, gentlemen,
if Serne and Goldfinch set fire to this house when the famil.y w^Te in
it, and if the boys were by that act stifled or burnt to death,, then the
prisoners are as much guilty of murder as if they had 'stabbed the
SECT. II.] Ileylna v. Scnie and iJoliljiiulu lOU
children. I will also add, for my own part, that I tliiiik in so saying
the law of England lays down a rule of bioad, plain, common sense.
Treat a murderer how you will, award him svliat punishment you
choose, it is your duty, gentlemen, if you think him really guilty of
murder, to say so. That is the law of the land, and I have no doubt
in my mind with regard to it. There was a case tried in this Court
which you will no doubt remember, and which will illustrate my
meaning. It was the Clerkenwell explosion case in 18G8, when a man
named Barrett was charged with causing the death of several persons
by an explosion which was intended to release one or two men from
custody. And I am sure that no one can say truly that Uarrett was
not justly hanged.
Verdict, Not Tniiltv
REGINA V. HORSEY.
Kent Assizes. 1862. 3 Foster and Finlason 287.
Indictment for murder of a person unknown.
The prisoner had wilfully set fire to a stack of straw in an en-
closure in which also was an outhouse or barn, but not adjoining to
any dwelling-house. While the fire was burning, the deceased was
seen in the flames, and heard to shriek, and his body was afterwards
found in the enclosure. It did not very clearly appear whether
he had been in the outhouse or merely lying on (or by the side of)
the stack. There was no evidence who he was... or how or when he
came there; nor any evidence tliat the prisoner had any idea that
any one was, or was likely to be, there. On the contrary... when he
saw and heard the deceased he wanted to save him. It did not
exactly appear how long after the fire had been kindled before it was
discovered; but very soon after it was discovered the deceased was
seen in the flames.
Bramwell, B., told the jury that the law, as laid down, is that
where a prisoner in the course of committing a felony, causes the
death of a human being, that is murder, even though he did not
intend it. And although that may appear unreasonable, yet as it is
laid down as law, it is our duty to act upon it. The law, however, is
that a man is not answerable except for the natural and probable
result of his own act ; and therefore, if you should not be satisfied tliat
110 Select Cases on Criminal Law. [part il
the deceased was in the enclosure at the time when the prisoner set fire
to the stack, but came in afterwards, then — as his own act intervened
between the death and the act of the prisoner — his death could not
be the natural result of the prisoners act*. And in that view he ouyht
to be aci^uitted.
COMMONWEALTH v. LUCY ANN MINK.
Supreme Court of Massachusetts. 1877. 9 Lathrop 422.
Indictment for the murder of Charles Ricker.
It was proved that Ricker came to his death by a shot from a
pistol in the hand of the defendant. The evidence for the defence
shewed that the defendant had been engaged to be married to Ricker.
An interview took place between them in the course of which he
expressed his intention to break off the engagement. She thereupon
went to a trunk, and took from it a pistol, with the intention of taking
her own life. Ricker then seized her, to prevent her from accomplishing
that purpose. A struggle ensued between them ; and in this struggle
the pistol was accidentally discharged and the fatal wound was thus
inflicted upon him. The jury returned a verdict of Guilty of Man-
slaughter, The defendant appealed.
Gray, C.J. Suicide being criminal, any attempt to commit it is
likewise criminal. Hence every one has the same right and duty to
interpose to save a life from being taken thus criminally, that he
would have to defeat an attempt to unlawfully take the life of a third
person, Y.B, 22 Edw, IV. 45, pi. 10; Marler v. Ay/ije, Cro. Jac, 134,
And any person who in doing, or attempting to do, an act which is
criminal, kills another, is guilty of criminal homicide ; and, at the least,
of manslaughter. The only doubt we entertain in this case is whether
the act of the defendant in attempting to kill herself was not so
malicious as to make the killing of Ricker a murder.
[See also Reg, v. Faulkner, infra.]
^ [Editor's Note. Similarly in cases of manslaughter by the omission to fulfil
a duty, the death must be the "immediate" result of that omission. lieg. v. Pocock,
(1851) 17 Q. B. 34.]
SECT. II.] Rex V. Maihhj. 1 1 1
Chapter III. The mental state: in Manslauohteh.
(A.) INTENT TO KILL OR DO GUIEVOU.S HARM liUT ON
SUDDEN PROVOCATION.
\A detected Adiilferer.^
REX V. MADDY.
King's Bench. 1672. 1 Ventris 158.
John Maddy was indicted, for that he of malice aforethouglit
feloniously murdered Francis Mavers; upon which he was arraigned
at the Assizes in Southwark, and pleaded Not Guilty. The jury
found a special verdict, by the direction of Justice TwLsden, then Judge
of Assize there, which was to this etfect : — That Maddy coming into
his house, found Mavers in the act of adultery with his the said
Maddy's wife, and he immediately took up a stool and struck Mavers
on the head, so that he instantly died. They found that Maddy had
no precedent malice towards him, and so left it to the judgment of the
Court whether this were Murder or Manslaughter.
The Record was this Term removed into the King's Bench by
certiorari, and Maddy brought by Habeas Corpus. And the Court
were all of opinion that it was but Manslaughter, the provocation being
exceeding great, and found that tiiere was no precedent malice. It
was taken to be a much stronger case than Royley's case' (Cro. Jac.
296) : where, the son of Royley coming home with a bloody nose, and
telling his father tliat such an one beat him in such a field, the fathei-
immediately ran to that field (which was a mile off) and found him
that had beat his son there, and killed him ; all which was found upon
a special verdict, and resolved to be but Manslaughter.
But TwiSDEN said there was a case found before Justice Jones,
which was the same with this, only it was found that the prisoner being
informed of the adulterer's familiarity with his wife, said he would be
revenged of him, and after finding him in the act, killed him ; which
was held by Jones to be murder. Wliich the Court said might be so,
by reason of the former declaration of his intent ; but no such thing is
found in the present case.
1 [Editob's Note. Sir Michael Foster (295) points out that in Royley's case
"the provocation was not very grievous, as the boy had fought with one who
happened to be an overmatch for him, and was worsted— a disaster slight enough,
and very frequent among boys." On collating the various reports, it appears that
the reason for Royley's crime being only manslaughter was not the provocation,
but the triviality of the attack he made— a single blow with a mere wand.]
112 Select Cases on Criminal Law. [part ii.
Sir T. Raymond's report (p. 212) adds:— 'And he had his clergy
at the bar, and was burned in the hand ; and the Court directed the
executioner to burn him gently, because there could not be greater
provocation than this.'
\An unpremeditated qunrrel.'\
THE KING V. BROWN.
Kent Assizes. 177G. 1 Leach 148.
John Brown was tried and convicted, before Mr Justice Gould,
for the wilful murder of Jolm Moncaster.
It had been argued by the prisoner's counsel that the offence was
only manslaughter, and the learned judge concurring in that opinion
had so directed the jury. But they thought fit to find the prisoner
guUty of murder, and persisted in their verdict. Sentence of death
was accordingly passed upon him ; but he was reprieved from execu-
tion until the evidence which had been given against him was submitted
to the consideration of the twelve judges. On the first day of the
ensuinf^ Michaelmas Term the case was stated at Serjeants' Inn Hall
to the following effect :
The Case. The prisoner was a common soldier in a regiment of foot
commanded by Captain Peter Hunter ; and was, at the time mentioned
in the indictment, on a recruiting party at Sandgate. In this character
he had behaved during the course of five years with great propriety as
a soldier, and with good nature and humanity as a man. On the
26th of June, 1776, he went with several of his comrades into a public-
house in Sandgate, kept by one Meggison, to drink. This was between
one and two o'clock in the morning. A quarrel arose soon after
between the soldiers and a number of keelmen who were in the house.
They went out into the street, and a violent aflfray ensued, which occa-
sioned a tumult of men, women, and children. Between two and three
o'clock one of the soldiers was seen stripped, and a party of five or six
came up, fell upon him, and beat him cruelly. A woman called out
from a window, "You rogues! you will murder the man!" The
prisoner, who had before, with his sword in the scabbard, driven a part
of the mob down the street, returned ; when, seeing his comrade thus
used, he drew his sword, which he brandished in the air, and desiring
SECT. II.] The King v. Browii. 1 1 :{
the mob to stand clear, said, "There it is, I'll sweep the street." The
mob pressed in upon tlieiu, and he struck at them with the flat side
several times. The mob then fled, and he pursued one of them down
the street. The soldier who was stripped got up, and ran into a
passage to save himself. The prisoner returned, and asked if they hnd
murdered his comrade. The people came back and assaulted hiin
several times, and then ran from him. He sometimes brandished ids
sword, and then struck fire with the blade of it upon the stones of the
street, calling out to the people to keep off. At this time the deceased,
who had a blue jacket on, and might be mistaken for a keelman, was
going along about five yards from the soldier ; but, before he passed,
the soldier went to him, and struck him on the head with his sword.
The deceased ran some paces and fell down, rose again, ran a few
paces further out of the prisoner's sight, fell down again, and immediately
expired. The soldier said he had been badly used; and it was the
opinion of two witnesses, that, " if he had not drawn his sword, they
would both of them have been murdered."
The Judges were clearly of opinion that it was only manslaughter.
\An unpremeditated quarrel.^
REX V. AYES.
Exeter Assizes. 1810. Russell and Ryatj 1(57.
The prisoner was tried before Mr Baron Graham, at the Exeter
Lent Assizes, in the year 1810, on an indictment charging him, the said
Pierre Ayes (who was a French prisoner), with the murder of Jeau
Berjeant (a fellow prisoner), in the Mill Prison, at Plymouth, on the
12th of March, 1810, by throwing him on the ground, and stamping on
his breast, belly, and loins, thereby, Ac.
It appeared that some French prisoners were gambling in an upper
room of the prison, and one of them whilst at play, feeling a man take
a tin tobacco box out of his pocket, turned quickly round, and seeing
the box in the hand of Jean Berjeant, the deceased, took it from him,
gave him two slaps of the face, and bid him get away. The deceasetl
went down stairs. But a clamour had been raised against him, and on
coming down he was followed by several others. As he passed by the
K. 8
114 Select Cases on Criminal Law. [part u.
side of the beer table, the prisoner arose from the table, went up to the
deceased, and with both liis hands pushed against his breast with great
force, and the deceased fell on his back to the ground. The deceased
arose and struck the prisoner two or three times with his double fist in
the face, and one blow on the eye. Then the prisoner being, as the
witness expressed it, very drunk, pushed the deceased in the same
manner a second time on the ground, and gave him as he lay on his
back two or three stamps with great force with his right foot on the
stomach and belly ; the deceased cried out, " Helas ! Helas ! let me
alone."...
The deceased was a small man, the prisoner stout, but, as all the
witnesses agreed, much in liquor. The deceased after this went to his
bed, and... died early on the 16th of March. The hospital surgeon
opened the body. He described the whole of the intestines as in
a state of excessive inflammation, the eflfects of the bruises, and he had
no doubt that the stamps, such as he had heard described, and of which
he saw the efiects on the body before the deceased died, were the cause
of his death.
The learned Judge observed to the jury tliat there was little doubt
but that the evidence proved that the prisoner had caused the death of
the deceased. If what he did was the efiect of a sudden transport of
passion beyond the control of reason, he was guilty of manslaughter ; if
done with malice, he was guilty of murder. This was not done of
" malice " in its ordinary sense (a premeditated design of killing the
deceased, or endangering his life) ; but malice, or great enmity far
beyond the provocation, might still be implied from the circumstances
of the case. The prisoner was the aggressor, and though he was
assaulted and beaten by the deceased, he had provoked the assault;
but although he was the aggressor, if his resentment hud l)een confined
to the second blow, by which the deceased was thrown to the ground
and the death of the deceased had been the consequence, there would
have been fair room to say it was done in heat of blood. But when
the deceased was thrown upon the ground, incapable of further resist-
ance, it was difficult to ascribe to the mere effect of sudden resentment
the stamping upon his body in the manner described. With regard to
the prisoner's defence, he told the jury that the law did not allow
of the plea of drunkenness as an extenuation of the ofience charged.
The jury, composed one half of foreigners, found the prisoner guilty
of murder, and the learned Judge pronounced sentence upon him. But,
thinking that the case required further consideration, particularly as
there appeared to be no interval of time between the second blow
which threw the deceased to the ground and the stamping on his body,
si:cT. II.] Hex V. Ayes. 115
he respited the sentence to take the opinion of the Judges wh.-th.-r
upon the evidence this case was a c;ise of murder, or manslau-hu-r
only.
In Easter term, 1810, all the Judoks assembled, and were of
opinion that the conviction was wrong, being only manslaughter.
[Quarrel preineditated by part of the combatmits hnt Jiot hy othcrsA
See Regina v. Salisbury, supra p. 102.
[But a laioful blow is no adequate provocation,.']
REX V. BOURNE.
Old Bailey. 1831. 5 Carrington and Payne 120.
Indictment for stabbing and wounding James Lightfoot with intent
to murder him.
The prosecutor stated that the prisoner and his brother, who was
a boy about six years younger than himself, were fighting on board the
barge Alfred, which was lying in the West India Docks, and in which
he (the prosecutor) also worked ; that he laid hold of the prisoner to
prevent him from beating his brother, and held him down on a locker,
but did not strike him ; and that the prisoner stabbed him with a knife
just above the knee.
The prisoner in his defence said, that the prosecutor had knocked him
down.
Mr Justice J. Park (in summing up). The prosecutor states that
he was merely restraining the prisoner from beating his brother, which
was quite proper on his part ; and he says that he did not strike any
blow. If you are of opinion that the prosecutor did nothing more than
was necessary to prevent the prisoner from beating his brother, the
crime of the prisoner, if death had ensued, would not have been reduced
to manslaughter ; but if you think that the prosecutor diii more than
was necessary to prevent the prisoner from beating his brother, or that
he struck any blows, then I think that it would. You will, thercfoi-e,
consider whether anything was done by the prosecutor more than was
necessary, or whether he gave any blows before he was cut.
«— i
116 Select Cases on CHminal Law. [part il
(b) intent merely to hurt.
[In hostility.]
REGINA V. WILD,
Liverpool Assizes. 1837. 2 Lewin 214.
The prisoner was indicted for manslaughter. It appeared that
the deceased had entered the prisoner's house in his absence. The
prisoner, on returning home, found him there, and desired him to
withdraw, but he refused to go. Upon this words arose between them,
and the prisoner becoming excited proceeded to use force, and by a kick
which he gave to the deceased, caused an injury which produced his
death.
Alderson, B. a kick is not a justifiable mode of turning a man
out of your house, though he be a trespasser. If a person becomes
excited, and being so excited, gives to another a kick, it is an un-
justifiable act. If the deceased would not have died but for the injury
he received, the prisoner having xinlawfully caused that injury, he is
guilty of manslaughter.
[/w a practical joke.'\
REX V. SULLIVAN.
Central Criminal Court. 1836. 7 Carrington and Paynb 641.
The prisoner was indicted for the manslaughter of Hugh Wood.
The deceased was a carman, and was loading a cart with potatoes ;
there were six sacks ; they were put in front, three on each side ; he
was in the front part of the cart. There were two more sacks to come
in, and when the first of the two was put in, the cart tilted up, in
consequence of the trap-stick having been taken out, and the deceased
was thrown out on his back on the stones, and the potatoes were shot
out of the sacks, and fell on and covered him over, There was blood
on the back of his head ; he was taken to the hospital, and died soon
after, from a fracture of the skull and concussion of the brain. The
only evidence to connect the prisoner with the matter was, that, after
the death of the deceased, the prisoner said that there were several
persons he thought accused of pulling the trap-stick out, and he was
SECT. II.] Rex V. Sullivan. \ \ 7
the person who actually did do it; but not with intent to do hiui .my
harm, as he had seen it done several times before by others.
The prisoner, under the direction of the learned Judges, Gurnry, H.,
and Williams, J., was found guilty, but recommended strongly to
mercy ; and was fined Is. and discharged.
\In a dangerous tort.^
REX V. FENTON AND OTHERS.
Durham Assizes. 1830, 1 Lewin 179.
Indictment for manslaughter. The indictment charged that there
was a scaffolding in a certain coal-mine, and that the prisoners, by
throwing large stones down the mine, broke the scaffolding ; and that,
in consequence of the scaffolding being so broken, a corf, in which the
deceased was descending into the mine, struck against a beam on
which the scaffolding had been supported; and by such striking the
corf was overturned, and the deceased precipitated into the mine,
whereby he lost his life. It was proved that scaffolding was usually
found in mines in the neighbourhood, for the purpose of supporting
the corves and enabling the workmen to get out and work the mines.
Evidence was given that the stones wei'e of a size and weight sufficient
to knock away the scaffolding ; and that, if the beam only was left,
the probable consequence would be, that the corf striking against it
would upset and occasion death or injury.
TiNDAL, C.J. If death ensues as the consequence of a wrongful act,
an act which the party who commits it can neither justify nor excuse,
it is not accidental death, but manslaughter. If the wrongful act was
done under circumstances which shew an attempt to kill, or do any
serious injury in the particular case, or any general malice, the offence
becomes that of murder. In the present instance the act was one of
mere wantonness and sport, but still the act was wrongful, it was
a trespass. The only question therefore is whether the death of the
party is to be fairly and reasonably considered as a consequence of
such wrongful act ; if it followed from such wrongful act as an ell't'ct
118 Select Cases on Criminal Law. [part ii.
from a cause, the offence is manslaughter; if it is altogether uncon-
nected with it, it is accidental death.
Tlie jirisuners were convicted and sentenced to three months'
imprLaouuiciiU
[But tiot in a tort inhich teas unlikely to hitrt^A
REGIKA V. C. H. FRANKLIN.
SussKx Assizes. 1883. 15 Cox 163.
Charles Harris Franklin was indicted, before Field, J., at Lewes,
for the manslaughter of Craven Patrick Trenchard.
The facts were as follows : On the morning of the 25th day of
July, 1882, the deceased was bathing in the sea from the West Pier, at
Brighton, and swimming in the deep water around it. The prisoner
took up a good sized box from the refreshment stall on the pier and
wantonly threw it into the sea. Unfortunately the box struck the
deceased, C. P. Trenchard, who was at that moment swimming under-
neath, and so caused his death.
Gore, for the prosecution, urged that, apart from the question of
negligence, it would be sufficient to constitute the offence of man-
slaughter that the act done by the prisoner was an unlawful act ; which
the facts clearly shewed it to be. He cited the case of Hex v. Fenton
{supra, p. 117).
Field, J. The case must go to the jury upon the broad ground of
negligence, and not upon the narrow ground proposed by the learned
counsel. For it seoms to me — and I may say that in this view my
brotlier Mathew agrees — that 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. I have a great abhorrence
of constructive crime. We think the case cited by the counsel for the
prosecution is not binding upon us in the facts of this case ; and,
therefore, that the civil wrong against the refreshment-stall keeper is
immaterial to this charge of manslaughter. I 'do not think that the
facts of this case bring it clearly within the principle laid down by
Tindal, C.J., in Rex v. Fenton. And if I thought this case was in
1 [Ewtob's Note. This limitation of the rule seems not to have been accepted
by the late Mr Justice Stephen, See his Digest of Criminal Law (Sth ed.), Art. '231.]
SEOT. II.] Rcf/hia V. C. II. F not Id in. 119
principle like that case I would (if requested) stiite a case for the
opinion of the Court of Criminal Appeal.
Gill, for the prisoner, relied upon the point that there was not
proved such negligence on the pai-t of the prisoner as was criininal
negligence.
Field, J., in summing up the case to the jury, went carefully
through the evidence, pointing out how the facts, as admitted and
proved, affected the prisoner upon the legal question as he had explained
it to them.
The jury returned a verdict of guilty of manslaughter.
The prisoner was sentenced to two months' imprisonment.
[Fm-ticipation in unlawful act.'\
REGINA V. CATON.
Stafford Summer Assizes. 1874. 12 Cox 624.
Prisoner was indicted for the manslaughter of Henry Parker.
The deceased, a brewer's carter, was removing empty casks from a
cellar of a beerhouse adjoining a public street. He rolled up a cask
to his fellow carter above. It accidentally struck against the leg of
one Allen, who was passing along the street. Thereupon Allen began
to quarrel with the deceased, although the latter assured him that he
had not intended to hurt him ; and soon Allen called the prisoner, who
came out of a neighbouring house. Both went down into the cellar;
and beat the deceased with their fists. The otlier carter went down to
his comrade's help. An affray ensued ; in the course of which the
deceased received the fatal blow, struck with a heavy piece of timber
which was in the cellar. The evidence was conflicting as to whether
this blow was given by the pri-soner or by Allen. The latter was tried
before Cleasby, B., at the last Spring Assizes, and convicted of the
manslaughter.
At Caton's trial, on the close of the case for the prosecution.
Lush, J., said that the only question for the jury was whether the
prisoner struck the fatal blow. If two men concerted together to
tight two other men with their lists, and one struck an unlucky blow
causing death, both would be guilty of manslaughter. But if one used
a knife, or other deadly weapon (such as this piece of timber), without
120 Select Cases on\jrimiuul Laic. [pabt u.
the knowledge or consent of the other, he only who struck with the
weapon would be responsible for the death resulting from the blow
given by it.
McMahon. Allen called on Caton to do an unlawful act, viz., to
assault Parker; and, after that call, a blow was given in furtherance
of the common design. At the trial of Allen, who has been convicted,
Cleasby, B., ruled that Allen, having invited Caton down into the
cellar to beat Parker, was liable for whatever was done hereafter.
Lush, J. That might be so. Bi^o the converse — viz., that Caton
would be responsible for all that Allen did — is not a true proposition.
His Lordship, in summing up, told the jury that Caton was only
answerable for his own acts, and not if the other man struck the fatal
blow.
Verdict, Not guilty.
[Cf. Eegina v. Salisbury, supra, p. 102.]
(C) MERE NEGLIGENCE.
[TJiere must be not merely some negligence, hut a high degree of it."]
REGINA V. FINKEY.
Shrewsbury Assizes. 1874, 12 Cox 625.
Prisoner was indicted for the manslaughter of Thomas Watkins.
The prisoner was an attendant at a lunatic asylum. Being in
charge of a lunatic, who was bathing, he turned on hot water into the
bath, and thereby scalded him to death. The facts appeared to be
truly set forth in the statement of the prisoner made before the
committing magistrate, as follows : "I had bathed Watkins, and had
loosed the bath out. I intended putting in a clean bath, and asked
Watkins if he would get out. At this time my attention was drawn
to the next bath by the new attendant, who was asking me a question;
and my attention was taken from the hath where Watkins was.
I put my hand down to turn water on in the bath where Thomas
Watkins was. I did not intend to turn the hot water, and I made
a muitake in the tap. I did not know what I had done until I heard
SECT. ii.J Reglna v. Fiumt/. 121
Thomas Watkiii"? shout out; and I did not find my mistake out till I saw
the steam from the water. You cannot get water in this bath when
they are drawing water at the other bath; but at other times it
shoots out like a water gun when the other baths are not in use."...
[It was proved that the Ixinatic had such possession of his faculties
as would enable him to understand what was said to him, and to get
out of the bath.]
A. Young (for prisoner). The death resulted from accident. There
was no such culpable negligence on the part of the prisoner as will
support this indictment. A culpable mistake, or some degree of
culpable negligence, causing death, wiU nob support a charge of man-
slaughter ; unless the negligence be so gross as to be reckless. (li. v.
Koakes^.)
Lush, J. To render a person liable for neglect of duty there must
be such a degree of culpability as to amount to gross negligence on his
part. If you accept the prisoner's own statement, you find no such
amount of negligence as would come with this definition. It is not
every little trip or mistake that wiU make a man so liable. It was the
duty of the attendant not to let hot water into the bath while the
patient was therein. According to the prisoner's own account, he did
not believe that he was letting the hot water in while the deceased
remained there. The lunatic was, we have heard, a man capable
of getting out by himself and of understanding what was said to him.
He was told to get out. A new attendant who had come on this day,
was at an adjoining bath and he took off the prisoner's attention.
Now, if the prisoner, knowing that the man was in the bath, had turned
on the tap, and turned on the hot instead of the cold water, I should
have said there was gross negligence; for he ought to have looked to
see. But from his own account he had told the deceased to get out,
and thought he had got out. If you think that indicates gross care-
lessness, then you should find the prisoner guilty of manslaughter.
But if you think it inadvertence not amounting to culpability — Le.
what is properly termed an accident — then the prisoner is not liable.
Verdict, Not guilty.
1 4 F. and F. 920. [Editor's Note. In B. v. Noakes the distinction between
the negligence which is sufificient ground for a civil action and the higher degree
which is necessary in criminal proceedings, is sharply insisted on. See similarly
per Stephen, J., in Eegina v. Dohertij (16 Cox, at p. 303); and per Willes, J., in
Hammock v. White (31 L.J.R., C.P., 1;J1), aaiinRegina y. Markius, injra.p. 124.]
122 Select Cases on Criminal Law. [part il
[If such a degree of negligence might reasonably be in/erred from the
evidence, it is for the jury to decide whether or not to infer i^]
REX V. RIGMAIDON.
Lancaster Assizks. 1833. 1 Lkwin 180
Prisoner, a wine merchant at Liverpool, was indicted for man-
slaughter, in having, by negligence in the manner of slinging a csisk or
puncheon, caused the same to fall, and to kill two females who were
passing along the causeway. It appeared in evidence that there were
three modes of slinging casks customary in Liverpool : one by slings
passed round each end of the cask ; a second, by can-hooks ; and
a third, in the manner in which the prisoner had slung the cask which
caused the accident, viz. by a single rope round the centre of tho cask.
The cask was hoisted up to the fourth story of a warehouse, and on
being pulled end-ways towards the door, it slipped from the rope as
soon as it touched the floor of the room.
Park, J., to the jury. The double slings were undoubtedly the
safest mode. But if you think the mode which the prisoner adopted,
viz. that of a single rope, was reasonably sufficient, you cannot convict
him.
Prisoner was convicted; and sentenced to a month's imprisoumeut.
ACTS OF NEGLIGENCE BY COMMISSION.
[Firearms.^
REX V. BURTON.
Old Bailey. 172L 1 Stravoe 481.
The defendant came to town in a chaise; and before he got out of it»,
he fired off his pistols, which by accident killed a woman.
King, C.J., ruled it to be but manslaughter.
SECT. 11.] The St((tc V. Ihinlir
123
\Firearin8.'\
THR STATE v. HARDIE.
Supreme Court of Iowa. 1878. 10 Runnells 617.
Indictment for manslaughtei- of Sarah Sutfen. The evidence shewed
that the deceased, whilst calling at the house of a Mr Gantz, wheie the
prisoner boarded, went into the yard to get a kitten. The defendant
said he would frighten her with a revolver as she came back. The
report of a revolver was soon afterwards heard, and the defendant
immediately thereupon came to Mrs Gantz and said, " My God ! Come
Hannah, see what I have done." Mrs Sutfen was found in a dying
condition, with a gunshot wound in her head. It was proved that the
revolver had been found in the street, five years previously, with one
chamber loaded. Mr Gantz had tried to fire this charge, and afterwards
to hammer it out; but in vain. It had ever since been left about the
house in the same condition ; and was regarded by all the family as
quite harmless.
The defendant was convicted of manslaughter. Against this he
appealed; contending that there was no evidence of such carelessness as
to render the act criminal, but that it was a homicide by misadventure.
RoTHROCK, C.J. That the revolver was in fact a deadly weapon is
conclusively shewn by the tragedy which occurred. Had it been un-
loaded, though no homicide would have resulted, yet the defendant
would have been justly censurable for a most reckless act in frightening
a woman by pretending that he was about to discharge it at her.
Human life is not to be sported with by the employment of firearms,
even though the person using them may have good reason to believe
that the weapon,... though loaded, will do no harm. When persons
indulge in such reckless sport, they should be held liable for the conse-
quences of their acts.
Conviction aflirmed.
[See the An'onymous case, supra, p. 27.]
124 Select Cases on Criminal Law. [part ii.
\Ijiiproper medical treatment ; whether hy inattention or by ignorance.]
REGINA V. MAKKUSS.
Durham Assizes. 1864. 4 Foster and Finlason 356.
Josepli Levy Markuss was indicted for the manslaughter of Jane
Sumby.
The prisoner kept a shop in Sunderland, where he passed as a her! >
doctor — The deceased woman was shewn to have died from iuflanima
tion of the stomach, which the medical men who attended her attributed
to an overdose of colchicum seeds, which she had taken by direction of
the prisoner Eighteen grains would be fatal, and the overdose ad-
ministered contained eighty grains.
"WiLLES, J., said that every person who dealt with the health of
others was dealing with their lives ; and every person who so dealt was
bound to use reasonable care, and not to be grossly negligent. Gross
negligence might be of two kinds. In one, a man, for instance, went
hunting and neglected his patient, who died in consequence. Another
sort of gross negligence consisted in rashness ; as where a person was
not sufficiently skilled in dealing with dangerous medicines which
should be carefully used, and was ignorant of their properties or of
how to administer a proper dose. A person who with ignorant rash-
ness, and without skill in his profession, used such a dangerous
medicine, acted with gross negligence. It was not, however, every
slip that a man might make that would render him liable to a criminal
investigation. It must be a substantial thing. If a man knew that
he was using medicines beyond his knowledge, and was meddling with
things above his reach, that was culpable rashness. Negligence might
consist in using medicines in the use of which care was required, and
of the properties of which the person using them was ignorant. A
person who so took a leap in the dark in the administration of
medicines was guilty of gross negligence. If a man were wounded,
and another applied to his wound sulphuric acid, or something else
which was of a dangerous character and ought not to be applied, and
which led to fatal results, then the person who applied this remedy
would be answerable; and not the person who inflicted the wound,
because a new cause had supervened. But if the person who dressed
the wound applied a proj)er remedy, then if a fatal result ensued he
who inflicted the wound remained liable. He left it to the jury to say
whether on the evidence the deceased had died from natural causes, oi-
from the supervening cause of the medicine prescribed for her by the
prisoner, he being an irregular and apparently unskilled practitioner.
SECT. II.] Regina v. Marknss. 12.5
I£ from the latter cause, then had tlie prisoner prescribed this medicine
(which was the cause of death) rashlj, in the sense tliat he hud
explained %
Verdict, IMol guilty.
[Negligence in doing a lawful act which is dangerous."]
REX V. HULL.
Old Bailey. 1664. Keltng 40.
John Hull was indicted for the murder of Henry Cambridge. The
case was, that there were several workmen about building of a house
by the horse-ferry ; which house stood about 30 feet from any highway
of common passage. HuD, being a master-workman, was sent by his
master (about evening, when the master-workmen had given over work,
and when the labourers were putting up their tools) to bring from his
house a piece of timber which lay two stories high. He went up for
that piece of timber ; and before he threw it down, he cried out aloud,
"Stand clear," and was heard by the labourers. All of them went
from the danger but only Cambridge ; and the piece of timber fell upon
him and killed him.
And my Lord Chief Justice Hyde held this to be manslaughter.
For he said he should have let it down by a rope ; or else, at his peril,
be sure that nobody is there. But my brother Wylde and myself
(Kelyng, C.J.) held it to be misadventure ; he doing nothing but what
is usual with workmen to do, and (before he did it) crying out aloud,
" Stand clear," and so giving notice if there were any near they might
avoid it. . Aaid we put this case : — a man lopping a tree, when the
arms of the tree were ready to fall, calls out to them below, " Take
heed " ; and then the arms of the tree fall and kill a man, this is mis-
adventure. And we shewed him Foulton de pace 120, where the case
is put, and the book cited, and held to be misadventure. And we said
this case in question is much stronger than the case where one throw.'^
a stone or shoots an arrow over a wall or house, with which one is
slain; which, in Keilwey 108 and 136, is said to be misadventure.
But we did all hold that there was a great difference 'twixt the case
in question (the house from which the timber was thrown standing
thirty feet from the highway or common foot-path) and the doing the same
126 Select Cases on Criminal Laiv. [part ii.
act in the streets of London. For we all agieed that in London, if one
be a cleansing of a gutter, and call out to stand aside, and then throw
down rubbish or a piece of timber, by which a man is killed, this is
manslaughter^ Being in London, there is a continual concourse of
people passing up and down the streets, and new passengers who did
not hear him call out; and therefore... if anyone be killed it is man-
slaughter. Because, in common presumption, his intention was to do
mischief, when he casts or shoots anything, which may kill, among
a multitude of people. But in case of a house standing in a country-
town, where there is no such frequency of passengers, if a man call out
there to " Stand aside, and take heed," and then cast down the tilth of
a gutter, my brother Wylde and I held this a far ditfering case from
doing the same thing in London. And because my Lord Hyde differed
in the principal case, it was found specially ; but I take the law to be
clear that it is but misadventure.
^Kegligence as regards dangerous animals. \
REGINA V. DANT.
Crows Case Reserved. 1865. Leigh and Cave 567.
The following case was stated by Montague Smith, J.
The prisoner was tried before me for feloniously killing and slaying
Mary Ann Papworth.
The deceased was a child about eight years old, and was killed by a
kick from a horse belonging to the prisoner.
The horse which caused the death of the child had been in the
possession of the prisoner about four years. There was evidence that
it was a very vicious and dangerous animal ; that it had kicked and
injured several persons ; that some of these instances had been brought
to the knowledge of the prisoner ; and that he otherwise knew the pro-
pensitie.s of the hor.-^e.
There is a large common adjoining the town of Cambridge, between
Jnsus College and the river, called Midsummer Common, on which the
ratepayers in the borough of Cambridge were accustomed to depasture
' [EDrroR's Note. Had the Londoner not taken the precaution of callius out
to the passers-by, his offence would auiouut to murder, according to Coke (3 Inst.
57).]
SECT. II.] Regina v. Dant 127
their horses. Through this conuiiou there are deliued puhlic fuot paths,
a yard wide or more, kept and gravelled by the Municipal Corporatioji
of Cambridge. Two of these paths converge about twelve yards fruin
a bridge over the river, and, from the point whore they meet, form a
broad pathway to the river; but the Ijoundaries of the public foot-path
from the said point to the river are ill-defined. These paths are all
unfenced and open to the rest of the common. It was proved that the
public have a right to use these foot-paths ; but it was not proved that
the public had a right to traverse the other parts of the common,
although they often did traverse it. The prisoner claimed a riglit, as
a ratepayer of the borough of Cambridge, to turn out his horses to
depasture on this common ; and it was not disputed by the Counsel for
the prosecution that he had this right.
It appeared that the deceased, with some other children, was on
the common ; and, when she was either on or very near to the broad
pathway above described, the vicious horse of the prisoner, which had
been turned out loose on the common by him, and which was then on
the common near the broad path, kicked at the deceased with his heels,
struck her on the head, and killed her.
I left to the jury the question whether the death of the child was
occasioned by the culpable negligence of the prisoner ; and 1 told them
they might find culpable negligence, if the evidence satisfied them that
the horse was so vicious and accustomed to kick mankind as to be
dangerous, and that the prisoner knew that it was so, and with that
knowledge turned it out loose on the common, through which to his
knowledge there were open and unenclosed paths on which the public
had a right to pass and were accustomed to be.
I also asked the jury to find, as a separate question, whether the
deceased, at the time she was kicked by the horse, was on the foot-path
or beyond it.
The jury found the prisoner guilty of having caused the deatli of
the child by his culpable negligence, but answered the last question by
saying that the evidence did not satisfy them one way or the other —
whether the child, at tlie time she was kicked, was on the pathway or
beyond it
Naylor (for the prisoner). For the purposes of this argument it
must be taken that the child was oflf the path ; and, if that was so,
the conviction cannot stand. A man who puts a vicious horse into his
own close would not be guilty of manslaughter if it killed a trespasser.
So here, the child, being off the path, was a trespasser ; and, if there
was any neglect of duty, it was on the part of the corporation, the
owners of the field, in neglecting to fence off tlie path. The prisoner
128 Select Cases on Criming Late. [part u.
could not erect a fence, for he had no right in the field except that of
putting his cattle on it.
Montague Smith, J. The path was unfenced; and he knew it to
be so.
Blackburn, J. His negligence consisted in turning a vicious
horse into a place where it might reasonably be expected that people
would come.
Kaylor. The negligence was rather that of the parent in suffering
the child to go on a common where the paths were unfenced. If a
man, having a field, digs a pit in it, and another, wandering from the
path, falls into the pit, the owner of the field is not liable.
Blackburn, J. In Barnes v. Ward^ it was held that an area
dug so near to a public way as to be dangerous to the public unless
fenced was a nuisance. Is not the letting a vicious horse come near a
public way as bad as digging a pit near it ]
Naylor. That might have been so, if the prisoner had been the
owner of the field, and had had the power of fencing the path.
Blackburn, J. Not having that power, was it not his duty to
clog or blind the horse?
Mellor, J. The injury arose from turning the horse in. Is a
man justified in turning a vicious horse into a field when there is an
unfenced path ? Would a commoner be justified in turning a bull he
knew to be mischievous on to an unfenced common ?
Blackburn, J. Surely it is his duty not to do anything in the
use of his property which would be likely to endanger persons using
the path.
Erle, C.J. The corporation were not bound to fence the path.
If the boon of walking over a man's land is given to the pubHc, the
public must take it as it is given.
Naylor. The child contributed to its death by its own negligence.
Blackburn, J. I have never heard that, upon an indictment for
manslaughter, the accused is entitled to be acquitted because the
person who lost his life was in someway to blame.
Mkllor, J. The only point reserved is whether the prisoner can
be pronounced guilty of culpable negligence when the jury cannot say
whether the child was on or off the path.
Blackburn, J. And whether the fact of the child's being on or
off the path is material.
Naylor. If the child had been on the path, the accident miglit not
havf happened.
Blackburn, J. At any rate the child was close to the path ; and
1 9 C. B. 392.
SECT. II.] Regina v. Dant. 129
in Barnes v. Ward'^ the pit was not quite close to the footway, m tlj;it
the deceased must have gone out of the way before she fell inU) tlie pit.
Naylor. In Hardcastle v. The South Yorkshire Railway and Ric^r
Dun Company- it was held that an excavation near to a public high-
way was not a nuisance unless it, substaiitiallj-, adjoined it.
Mellor, J. Throwing stones off the top of a house by which
persons passing below are killed is manslaughter or not, accordin" as
persons may or may not be expected to pass. As to the point that the
child was guilty of contributory negligence ; in Reyina v. Sioirubdl^
Pollock, C B., held that, wliere a man kills another by furious driving
and running over him, it is no ground of defence that the death was
partly caused by the negligence of the deceased himself.
Blackrurn, J. The other day a man was very properly convicted
of murder, because he aided and abetted another in committing
suicide ; yet he could not have been sued for so doing by the man wlio
killed himself. In Hammack v. White'^ Willes, J., expresses an opinion
that the question of negligence is not tlie same in an action as in an
indictment for manslaughter.
Mellor, J. Both Barnes v, Ward^ and Hardcastle v. The South
Yorkshire Railway^ were considered in Sinks v. The South Yorkshire
Railway^ ; and the Court there adopted the distinction laid down in
the second of those cases.
Naylor. In Hounsell v. Smyth' it was held that an owner of waste
land, who had opened a quarry in his land near to and between two
public highways leading over the waste, was not liable to an action at
the suit of a man who had fallen into the quariy in crossing the waste
by night to get from one road into the other.
Mellor, J. Is there not a distinction between turning out cattle,
which may roam about, and digging a pit, which is fixed and only
dangerous to those who go out of their way to it ?
Naylor. In this case the child had gone out of its way.
Markby, for the Crown, was not called upon.
Erle, C.J. I am of opinion that this conviction should be
affirmed. The defendant turned a dangerous animal on to a common
•where there was a public footpath. That has been found by the jury
to be culpable negligence; and the child's death was caused by it.
Ordinarily speaking, these are all the requisites of manslaughter. It
is contended, however, that no offence was committed, because, as we
must take it, the child was not on the path; the jury having found
1 9 C. B. 392. 2 4 H. and N. 67. ^ Supra, p. 74.
* 31 L. J. C. P. 129, 131. 6 9 C. B. 392. « 4 H. aud N. 67.
' 32 L. J. Q. B. 26. » 29 L. J. C. P. 203.
130 Select Cases on Criminal Law. [part il
tliat it was very near, but that they could not say whether it was on
or off In my opinion, the defendant is responsible for having brought
so great a danger on persons exercising their right to cross the
tomuion ; and it is not a ground of acquittal that the child had strayed
from the path. Barnes v. Ward ' shews that a man is responsible for
making an excavation adjoining a highway, so as to render the way
unsafe to persons using it with ordinary care. In that case the
excavation was not on the highway ; and the plaintiff's wife had acci-
dentally deviated on a dark night. The principle of that case applies
to this. I am of opinion that those who dedicate a road are not under
any obligation to fence it. When a right of way is granted, it must
be taken in the state in which it is granted ; but persons using it are
nevertheless to be protected from such danger as that in this case.
M)' judo-ment proceeds on the fact that the child was near the path ;
since the cases shew that persons trespassing a long way from the path
must take the chance of what may happen to them in consequence of
so doing, and cannot maintain any action against the owner of the
land for anj^ damage they sustain thereby. Yet I do not say that,
because a man is not liable to an action in such a case, he is not liable
criminally. It is not necessary at present to embark on that question.
[The four other Judges delivered similar judgments.]
[^Driving J\
{Negligence in driving. \
REX V. KNIGHT.
Lancaster Assizes. 1828. 1 Lewin 168.
Prisoner was indicted for manslaughter. The evidence was that,
being employed to drive a cart, he sat in the inside instead of attending
at the horse's head". While be was sitting there, the cart went over a
child who was gathering up flowers on the road.
Bavley, J. The prisoner, by being in the cart, instead of at the
horse's head or by its side, was guilty of negligence. Death having
been caused by such negligence, he is guilty of manslaughter.
[In a similar case before Hullock, B., at York Assiiies in 1829 a
similar judgment was delivered.]
[See also Reg. v. Dalloway, infra.']
1 9 C. B. 392.
2 [Editor's Note. The cart evidently was one without driving-reins.]
SECT. 11. j Regina v. Bradshaw. i;jl
{^Negligence in playing a htwfnl gnini\]
REGINA V. BRADSHAW.
Leicester Assizes. 1878. 14 q^^ ^3
William Bradshaw was indicted for the manslaughter of Herbert
Dockerty at Ashby-de-la-Zoucii.
The deceased met with the injury which caused his death on the
occasion of a football match played between the football clubs of
Ashby-de-la-Zouch and Coalville, in which the deceased was a player
on the Ashby side, and the prisoner was a player on the Coalville side.
The game was played according to the "Association Rules." After
the game had proceeded about a quarter of an hour, the deceased was
"dribbling" the ball along the side of the ground in the direction of
the Coalville goal, when he was met by the prisoner, who was running
towards him to get the ball from him or prevent its further progress.
Both players were running at considerable speed. On approachin<»
each other, the deceased kicked the ball beyond the prisoner ; and the
prisoner, by way of " charging" the deceased, jumped in the air and
struck him with his knee in the stomach. The two met, not directly
but at au angle, and both fell. The prisoner got up unhurt, but the
deceased rose with difficulty and was led from the ground. He died
next day, the cause of death being a rupture of the intestines.
Witnesses from both teams were called whose evidence differed as to
some particulars. Those most unfavourable to the prisoner alleged
that the ball had been kicked by the deceased and had passed the
prisoner before he charged ; that the prisoner had therefore no right to
charge at the time he did ; that the charge was contrary to tlie rules
and practice of the game, and made in an unfair manner, with the
knees protruding. Those who were more favourable to the prisoner
stated that the kick by the deceased and the charge by the prisoner
were simultaneous; and that the prisoner had therefore, according to
the rules and practice of the game, a right to make the charge ; though
these witnesses admitted that to charge by jumping with the knee
protruding was unfair. One of the umpires of the game stated that in
his opinion nothing unfair had been done.
Bramwell, L. J,, in summing up the case to the jury said, " The
question for 5'ou to decide is whether the death of the deceased was
caused by tiie unlawful act of the prisoner. There is no doubt that
the prisoner's act caused the death ; and tlie question is whether that
act was unlawful. No rules or practice of any game whatever can
make that lawful which is unlawful by the law of the land ; and the
law of the land says you shall not do that which is likely to cause the
9—2
132 Select Cases on Criminal Law. [part ii.
death of another. For instance, no persons can by agreement go out
to fight with deadly weapons (doing by agreement what the law says
shall not be done), and thus shelter themselves from the consequences
of their acts. Therefore, in one way you need not concern yourselves
with the rules of football. But, on the other hand, if a man is playing
according to the rules and practice of the game and not going beyond
it, it may be reasonable to infer that he is not actuated by any
malicious motive or intention, and that he is not acting in a manner
which he knows will be likely to be productive of death or injury.
But, independent of the rules, if the prisoner intended to cause serious
hurt to the deceased — or if he knew that, in charging as he did, be
might produce serious injury and was indifferent and reckless as to
whether he would produce serious injury or not — then the act would
be unlawful. In either case he would be guilty of a criminal act and
you must find him guilty. If you are of a contrary opinion you will
acquit him." His Lordship carefully reviewed the evidence, stating
that no doubt the game was, in any circumstances, a rough one ; but
he was unwilling to decry the manly sports of this country, all of
which were no doubt attended with more or less danger.
Verdict, Not guilty.
[Editor's Note. In the Bimilar case of Reg. v. Moore, also tried at Leicester
Assizes [Times, Feb. IG, 1898), for manslaughter in a football match, but by
charging from behind, which is contrary to the rules of the game, Hawkins, J. ,
would not allow those rules to be put in evidence by the Crown, and said the only
question for the juiy was whether the prisoner used illegal violence.]
[Negligence by mere omission.'\
REGINA V. SAMUEL LOWE.
WORCESTEKSHIRR AsSIZES. 1850. 3 CaRRINGTON AND KiRWAN 123.
The prisoner was indicted for the manslaughter of Thomas Tibbitts.
It appeared that he was an engineer, and that his duty was to manage
a steam-engine employed for the purpose of drawing up miners from
a coal-pit. When tlie skip containing the men arrived on a level with
the pit's mouth, his duty was to stop the revolution of the windlass, so
that the men might get out. He was the only man so employed on
the premises. On the day in question he deserted his post, leaving the
engine in charge of an ignorant boy, who, before the prisoner went
away, declared himself to the prisoner to be utterly incompetent to
manage such a steam-engine. The prisoner neglected this warning;
and threatened the boy, in case he refused to do as he was ordered.
The boy superintended the raising of two skips from the pit with
SECT. II.] Reglna v. Samuel Lone.
13:i
success. But on the arrival, at the pit's mouth, of a third, containing
four men, he was unable to stop the engine; and the skip being
drawn over the pulley, the deceased, who was one of th.; men, was
thrown down into the shaft of the pit and killed on the spot. It
appeared that the engine could not be stopped "in consequence
of the slipper being too low," an error which it was j)roved thut any
competent engineer could have rectified, but which the boy in charge
of the engine could not.
Huddleston, for the prisoner, contended, that a mere omission or
neglect of duty could not render a man guilty of manslaughter, and he
cited the cases of Rex v. Green (7 C. and P. 156), and Rex v. Allen
(7 C. and P. 153).
Lord Campbell, C.J. I am clearly of opinion that a man may, by
A neglect of [even an active] duty, render himself liable to be con-
victed of manslaughter, or even of murder.
[Bui the omission must not he too remote a cause.'\
REGINA V. HILTON.
Liverpool Assizes. 1838. 2 Lewin 214.
The prisoner was indicted for manslaughter. It appeared that it
was his duty to attend a steam-engine ; and that, on the occasion in
question, he had stopped the engine, and gone away. During his
absence, a person came to the spot, and put it in motion ; and, being
unskilled, was not able to stop it again. It appeared, that in conse-
quence of the engine being in motion, the deceased was killed.
Alderson, B., stopped the case, observing, " The death was the
consequence, not of the act of the prisoner, but of the person who set
the engine in motion after the prisoner had gone away. It is necessary,
in order to a conviction for manslaughter, that the negligent act
which causes the death should be that of the party charged."
\Oinissioii too remote.^
REGINA V. REES.
Central Criminal Court. 1886. Sessions Papers, civ.
Frederick Samuel Rees was indicted for, and charged on the
coroner's inquisition with, the manslaughter of George Hill.
From Poland's opening of the case for the Crown, it appeared tliat
the prisoner was a fourth-class fireman in the London Fire Brigade,
134 Select Cases on Criminal Law. [part ii.
having charge of a fire-escape ; on the occasion in question he was
absent from his post when a fire occurred in which the deceased lost
his life. The allegation was that this death was caused by the
prisoner's culpable neglect of his duty.
Beslcy, for prisoner. There was no direct connection between the
prisoner's neglect of duty and the cause of death.
Hawkins, J., concurring in this view, Poland offered no evidence,
and the prisoner was acquitted.
\_Prisoner's negligence, however gross, will not render him responsible
for a death which his diligence would not have averted.'\
THE QUEEN v. DALLOWAY.
Stafford Assizes. 1847. 2 Cox 273.
The prisoner was indicted for the manslaughter of one Henry
Clarke, by reason of his negligence as driver of a cart.
It appeared that the prisoner was standing up in a spring-cart,
and having the conduct of it along a public thoroughfare. The
cart was drawn by one horse. The reins were not in tlie hands of
the prisoner, but loose on the horse's back. While the cart was so
proceeding down the slope of a hill, the horse trotting at the time,
the deceased child, who was about three years of age, ran across the
road before the liorse, at the distance of a few yards ; and one of
the wheels of the cart, knocking it down and passing over it, caused
its death. It did not appear that the prisoner saw the child in the
road before the accident.
Spooner, for the prosecution, submitted that the prisoner, in
consequence of his negligence in not using reins, was responsible for
the death of the child. But
Erle, J., in summing up to the jury, directed them that a party
neglecting ordinary caution, and, })y reason of that neglect, causing
the death of another, is guilty of manslaughter ; that if the prisoner
had reins, and by using the reins could have saved the child, he was
guilty of manslaughter ; but that if they thought he could not have
saved the child by pulling the reins, or otherwise by their assistance,
they must acquit him.
[Contrast Rex v. Knight, supra, p. 130.]
SECT. II.] lier/hm v. Keic and JarJisou. rs5
[But if prisoner's neyliyence formed even a part of (h<' [)iT)xinmtc cruise
of death, it is no defence that there was coalribaturij ntyliyence on
the deceased's oivn jjart.^
REGINA V. KEW AND JACKSON.
Suffolk Assizes. 1872. 12 Cox \')h.
The prisoners were indicted for manslaughter. It appeared that
on the 2nd of June the prisoner Jackson, who was in the employ of
Mr Harris, a farmer, was instructed to take his master's horse and
cart, and drive the prisoner Kew to the Bungay railway station. Being
late for the train, Jackson drove at a furious rate, at full gallop ; and
ran over a child going to school, and killed it. It was about two
o'clock in the afternoon, and there were four or five little children,
from five to seven years of age, going to school unattended by any
adult.
Metcalfe and Simms Reeve, for the prisoners, contended that there
was contributory negligence on the part of the child running on the
road; and that Kew was not liable for the acts of another man's
servant, he having no control over the horse, and not having selected
either the horse or the driver.
Byles, J., said : — Here the mother lets her child cfo out in the care
of another child, only seven years of age. And the prisoner Kew is in
the vehicle of another man, driven by another man's servant ; so not
only was Jackson not his servant, but he did not even select him. It
has been contended that if there was contributory negligence on the
children's part, then the defendants are not liable. Mo doubt con-
tributory negligence would be an answer to an action. But who is the
plaintiff here 1 The Queen, as representing the nation ; and if they
were all negligent together, I think their negligence would be no
defence, even if they had been adults. If you are of opinion that the
prisoners were driving at a dangerous pace, in a culpably negligent
manner, then they are guilty. It is true that Kew was not actually
driving; but still a word from him might have prevented the accident.
If necessary, I will reserve for the Court of Criminal Appeal the
question of contributory negligence as a defence.
The jury acquitted both prisoners.
[Compare Reg. v. Swindall, s^ipra, p. 71.]
136 Select Cases on Criminal Law. [part ii.
SECTION III.
HOMICIDES THAT ARE NOT CRIMES.
\^Mere accident,^
THE QUEEN v. BRUCE.
Central Criminal Court. 1847. 2 Cox 262.
The prisoner was indicted for manslaughter, under the circum-
stances detailed by one of the witnesses. He said the prisoner came
into his master's shop; and pulled him, by the hair, oflf a cask where he
was sitting, and shoved him to the door, and from the door back to the
counter. That the prisoner tlien put his arm round his neck and spun
him round, and they came togetlier out of the shop ; the prisoner kept
hold of the witness when they were outside, and kept spinning him
round ; the latter broke away from him, and, in consequence and at
the moment of his so doing, he (the prisoner) reeled out into the road
and knocked against a woman who was passing and knocked her down.
The prisoner was very drunk, and staggered as he walked.
The woman so knocked down died shortly afterwards of the injuries
she had received ; and it was for having caused her death that the
prisoner was indicted.
Mr Justice Erle inquired of the witness (a young lad) whether he
resisted the prisoner during the transaction. The lad answered that
he did not ; he thought the prisoner was only playing with him, and
was sure that it was intended as a joke throughout.
Erle, J, (to the jury). I think, upon this evidence, you must
acquit the prisoner. Where the death of one person is caused by the
act of another, while the latter is in pursuit of any unlawful object, the
person so killing is guilty of manslaughter, although he had no inten-
tion whatever of injuring him Avho was the victim of his conduct.
Here, however, there was nothing unlawful in what the prisoner did to
this lad, and which led to the death of the woman. Had his treat-
ment of the boy been against the will of the latter, the prisoner would
have been committing an assault — an unlawful act — which would have
rendered him amenable to the law for any consequences resulting from
it. But as everything that was done was with the witness's consent,
there was no assault, and consequently no illegality. It is, in the eye
of the law, an accident, and nothing more.
SECT. III.] Rex V. Martin. 137
\^Mere accidentia
REX V. MARTIN.
Stafford Assizes. 1827. 3 CAiturxoTON and Paynk 211.
Manslaughter. The indictment charged the prisoner with giving
a quartern of gin to Joseph Sweet, a cliild of tender age, to wit, of the
age of four years; which caused his death. The indictment averred the
quantity of gin to be excessive for a child of that age. It appeared
that the father of the deceased kept a pubHc-house at Wolverhampton,
and that the prisoner went there to drink, and having ordered a
quartern of gin, he asked the child if he would have a drop ; and that,
on his putting the glass to the child's mouth, with his left Jiand, as he
lield the child with his right, the child twisted the glass out of his
hand, and immediately swallowed nearly the whole of the quartern of
gin. This caused his death a few hours after.
Vaughan, B. As it appears clearly that the drinking of the gin in
this quantity was the act of the child, the prisoner must be acquitted.
But if it had appeared that the prisoner had willingly given a child of
this tender age a quartern of gin, out of a sort of brutal fun, and had
thereby caused its death, I should most decidedly have held that to be
manslaughter ; because I have no doubt that the causing the death of
a child by giving it spirituous liquors, in a quantity quite unfit for its
tender age, amounts, in point of law, to that oflence.
Verdict, Not guilty.
[Editor's Note. In Regina v. Packard and others (C. and M. 236) where a
man of sixty died within two hours after being phed with spirits by the prisoners,
Parke, B., said, " The simple fact of persons getting together to drink, or even
of one pressing another to drink, is not an unlawful act, or, if death ensue, an
offence that can be construed into manslaughter. And if what took place in the
present instance was really and solely for making merry, this will not be a case
of manslaughter, though the act was attended with death But a verdict
that the prisoners knew that the liquors were likely to cause the death of the
deceased would make the offence ai^pruach to murder."]
[Self-defence.']
ANONYMOUS.
1352. Lib. Ass. ann. 26, f. 123, pi. 23.
Note that in an indictment for felony the defendant put himself
upon the country. And it was found that he was in his house; and the
138 Select Cases on Criminal Law. [part ii.
man whom he killed and others came to his house in order to burn
him, (fee, and surrounded the house but did not succeed ; and he leapt
forth &c. and killed the other tfec. And it was adjudged that this was
no felony. Moreover it was adjudged by the whole Council that if
a robber slays a merchant, and the merchant's lad then comes up in
haste and kills the robber who robbed his master ttc, this is not
felony tc.
\_SeJf-defence.'\
REX V. COOPER.
Surrey Assizes. 1641. Croke Car. 544.
Cooper being indicted in the county of Surrey of the murder of
"W. L. in Southwark, with a spit, he pleaded not guilty. And upon
his arraignment it appeared that the said Cooper, being a prisoner
in the King's Bench, and lying in the house of one Anne Carricke,
who kept a tavern in the Rules, the said W. L., at one of the clock in
the night, assaulted the said house ; and offered to break open the
door and broke a staple thereof, and swore he would enter the house
and slit the nose of the said Anne Carricke because she kept a house
of ill-fame. And the said Cooper dissuading him from those courses,
and reprehending him, he swore that, if he could enter, he would
cut the said Cooper's throat : and he brake a window in the lower
room of the house, and tinust his rapier in at the window against the
said Cooper ; who, in defence of the house and himself, thrust the said
W. L. into the eye, of which stroke he died.
The question was, whether this wtM-e within the statute of 24 Hen.
"VIII.' The opinion of the Court was, that — if it were true he brake
the house with an intent to commit burglary, or to kill any therein,
and a party within the house (although lie be not the master but
a lodger or sojourner therein) kill him who made the assault and
intended mischief to any in it — that is not felony, but excusable by
the .said statute of 24 Hen. VIII. c. 5, which was made in affirmance
of the Common Law. Wherefore the jury were appointed to consider
of the fact ; and they found the said Cooper not guilty.
' [Eiutor's Note.] This statute (c. 5) reasserts the common-law rule sanction-
ing self-defence against robbers and burglars.
SECT. III.] Rex V. Scully. lyj
[Self-defence.^
REX v. SCULLY.
Gloucester Assizes. 1824. 1 Carrixgton and Pav.m; ;H9.
This pri.soner was indicted foi- manslaughter, in .shooting a man
whose name was unknown.
It was proved that the prisoner had been set to watch his master's
premises; and that lie came to a con.stable to surrender himself. ]fe
said he had unfortunately shot a man ; and that having seen the man
on his master's garden wall in the night, he hailed him ; and the
man said to another, whom the prisoner could not .see, "Tom, why
don't you fire?" lie hailed them again, and the same person .said,
"Shoot and be ," whereupon he (the prisoner) fired at the legs
of the man on the wall, whom he missed, and shot the deceased, whom
he had not seen from his being behind the wall.
This confession was the only evidence against the prisoner ; but it
Avas proved that, when the deceased was found, he had three dead
fowls, a housebreaker's crowbar, and a flint, steel, and matches.
Garrow, B. a person set by his master to watch a garden or
yard, is not at all justified in shooting at, or injuring in any way,
persons who may come into those premises, even in the night ; and if
he saw them go into his master's hen-roost, he would still not be
justified in shooting them. He ought first to see if he could not take
measures for their apprehension. But here the life of the prisoner was
threatened ; and if he considered his life in actual danger, he was
justified in shooting the deceased as he had done; but if, not considering
his own life in danger, he rashly shot this man, who was only a
trespasser, he would be guilty of manslaughter.
\Self-defence.'\
HOWEL'S CASE.
Worcestershire Eyre. \'12\. Maitland's Select Pleas 04.
Howel the Markman, a wandering robber, and his fellows, as.saulted
a carter; and would have robbed him, but the carter slew Howel, and
defended himself against the others, and escaped. And whereas it is
testified that Howel was a robber, let the carter go quit thereof. And
note that he is in the parts of Jerusalem ; but let him come back
safely, quit of that death.
140 Select Cases on Criminal Law. [part ii.
\I)efence of near relation.^
REGINA V. ROSE.
Oxford Assizes. 1884. 15 Cox 540.
The prisoner was indicted for tlie wilful murder of his father John
William Rose, at Witney.
The material facts proved were as follows : — The prisoner, a weakly
young man, of about twenty-two years of age, was at the time of the
alleged murder living with his father, mother, and sisters at Witney. The
father, who was a very powerful man, had z-ecently taken to excessive
drinking, and while in a state of intoxication was possessed with the
idea that his wife was unfaithful to him. He had on more than one
occasion threatened to take away her life; and so tirmly impressed was
she with the idea that these were no idle threats, that the prisoner's
mother had frequently concealed everything in the house which could
be used as a weapon.
On the night in question the family retired to their bedrooms,
which were situated adjoining to one another, about nine o'clock. The
deceased man appears to have immediately commenced abusing and
ill-treating his wife ; accusing her of unfaithfulness to him, and
threatening to murder her. On several occasions she retired for
safety to her daughter's room ; on the last occasion her husband
pursued her, and, seizing her, dragged her towards the top of the
stairs, threatening to push her down. He then said he would cut
her throat ; left her, saying he was going to fetch the knife, which
all the family seem to have known was in his room ; and then, rushing
back, seized his wife and forced her up against the balusters, holding
her in such a position that the daughters seem to have thought he
was actually cutting her throat. The daughters and mother shouted
"Murder," and the prisoner, running out of his room, found his father
and mother in the position described. No evidence was given that the
deceased man had any knife in his hand, and all the witnesses said
that they did not then see or afterwards find his knife.
The prisoner (according to his own account) Mred one shot to
frighten his father, but no traces of any bullet could be found ; and,
immediately after, he fired another shot, which, striking his father in
the eye, lodged in the brain, and caused his death in about twelve
hours. On his arrest the prisoner said, " Father was murdering mother.
I shot on one side to frighten him ; he would not leave her, so then I
shot him."
In cross-examination, the deceased man's employer said that the
prisoner's father was the strongest man he had ever seen, and the
SECT. III.] Regina v. Rose. I n
prisoner would not have had the slightest chance in a hand t.. luiiid
encounter with him.
Lopes, J. Homicide is excusable if a person tiikes away the life of
another in defending himself, if the fatal blow which takes away life is
necessary for his preservation. The law says not only in self-defence
such as I have described may homicide be excusable, but also it may
be excusable if the fatal blow inflicted was necessary for the preserva-
tion of life. In the case of parent and child, if the parent has reason
to believe that the life of a child is in imminent danger by reason of an
assault by another person, and that the only possible, fair, and reason-
able means of saving the child's life is by doing something which will
cause the death of that person, the law excuses that act. It is the
same of a child with regard to a parent ; it is the same in the case of
husband and wife. Therefore, I propose to lay the law before you in
this form : If you think, having regard to the evidence, and drawing
fair and proper inferences from it, that the prisoner at the bar acted
without vindictive feeling towards his father when he fired the shot, if
you think that at the time he fired that shot he honestly believed, and
had reasonable grounds for the belief, that his mother's life was in
imminent peril, and that the fatal shot which he fired was absolutely
necessary for the preservation of her life, then he ought to be excused
from the consequences of the homicide. If, however, on the other
hand, you are clearly of opinion that he acted vindictively and had not
such a belief as I have described to you, or had not reasonable grounds
for such a belief, then you must find him guilty of murder.
\^Bnt violent self-defence is not permitted (except^ to a person loho has
been pxirely passive) if retreat is possible.^
ANONYMOUS.
Newgate Sessions. 13G9. Lib. Ass. ann. 4.3, f. 274. pi. .31.
Note that at the delivery of Newgate, before Knivet and Ludlow,
it was found that a chaplain se defendendo slew a man, and the justices
asked how. And [the jurors] said that the man who was killed pursued
the chaplain with a stick and st)uck him, and he struck back and so
death was caused. And they said that the slayer, had he so willed,
1 [Editor's Note.] Some deny this exception ; but the better opinion seems
that Eetreat is only required from persons who have taken some culpable share in
the combat. See Foster 276.
142 Select Cases on Crimitial Law. [part ii.
might have fled from his assailant. And therefore the justices ad-
judged him a felon, and said that he was bound to flee as far as he
could with safety of life. And the chaplain was adjudged to the
ordinary [i.e. was handed over to his ecclesiastical superior as a clerk
convicted of crime.]
[Unless retreat woxild involve letting a 2)riso7iei' escape.^
REX V. FORSTER.
Lancaster Assizes. 1825. 1 Lewin 187.
The prisoner was charged, on the coroner's inquisition, with murder.
The prisoner was an excise ofiicer, and, being in the execution of his
office, had seized, with the assistance of another person, two smugglers
whom he detected in the act of landing whiskey from the Scottish
shore, contrary to law.
It appeared that the deceased had surrendered himself quietly into
the hands of the prisoner ; but shortly afterwards, when the prisoner
was off" his guard, he assaulted him violently with an ash stick, which
cut his head severely in several places. The prisoner lost much blood
from the wounds, and was greatly weakened in the struggle which
succeeded. Fearing the smuggler would overpower him, and having
no other means of defending himself, he discharged a pistol at the
deceased's legs, in the hope of deterring him from any further attack.
The discharge did not take effect, and the smuggler prepared to make
another assault. Seeing this, the prisoner warned him to keep ofl",
telling him he must shoot him if he did not. The smuggler disregarded
the warning, and rushed towards him to make a fresh attack. The
prisoner thereupon fired a second pistol and killed him.
HoLKOYD, J. An oOicer must not kill for an escape where the
party is in custody for a misdemeanor. But if the prisoner had reason-
able grounds for believing himself to be in peril of his own life or of
bodily harm, and if no other weapon was at hand to make use of or he
was rendered incapable of making use of any such weapon by the
previous violence that he had received, then he was justified. If an
affray arises and blows are received, and then weapons are used in heat
and death ensues, although the party may at the commencement have
been in the prosecution of something unlawful, still it would be man-
slaughter in the killer; though manslaughter only. In the present
case it is admitted tliat the custody was lawful. The jury are then to
SECT. III.] Rex V. Forster. 143
say whether, under all the circuiustances, the deceased being in tho
prosecution of an illegal act and having made the tirst assiuilt, tho
prisoner had such reasonable occasion to resort to a deadly wciipon, to
defend himself, as any reasonable man might fairly ;uid natunilK bo
expected to act on.
Verdict, manslaughter. Sentence one month's imprisoniueut.
\_Homicide in effecting arrest. '\
REX V. LEONIN AND JACOB.
Worcestershire Eyre. 1221. Maitland's Select Pleas 85.
Leonin, Philip's son, and Jacob his servant, slew John of Middletou
in the forest of Kinfare. Englishry is presented
At Lichfield came Leonin and Jacob and put themselves upon their
verdict as to when, where, and by whom the deed was done. The
jurors of the hundred of Seisdon say that, in the time of the war, John
came with many others into the King's forest to ofiend in the forest, as
was his wont, and was found seised of the whole body of a doe; and the
King's servants and foresters could not take him alive, and he defended
himself against our lord the King and cut off a forester's tinger, and
thus it was that he was slain. And so it is considered that [Leonin
and Jacob] be quit thereof.
\^Hom%cide in effecting arrest.^
JOHN SMALL'S CASE.
NoRTnAMPTON Coroner's Court. 1323. Select Coroners' Rolls 79.
John Small, who had been arrested at Stoke Bruern for burglary
at the house of Robert Gold, died in the prison of the castle of
Northampton. Inquest was taken by the oath of twelve [men], who
say on their oath that, when the said John was arrested, he resisted
the constable and frankpledges of the township of Stoke Bruern, and
would not allow himself to be attached to the peace, until a certain
unknown man of that township struck him in the left eye with an in)a
foi-k, and gave him a wound, half an inch wide and in depth pene-
trating to the brainpan; of which wound the said John died without
the felony of anyone.
144 Select Cases on Criminal Law. [part ii.
SECTION IV.
STATUTORY OFFENCES AGAINST THE PERSON.
[In statutory ivrongs of malice, there must he an intention to do the
particular kind of harm that actually zvas done.]
[See REGINA v. PEMBLITON, i7i/ra, p. 157.]
[But it is sufficient if the harm done is of the kind intended, thouqh it he
produced in a manner or upon a subject that ivas not intended^
REGINA V. LATIMER.
Crown Case Reserved. 1886. L.R. 17 Q.B.D. 359.
Case stated by the Recorder of Devonport.
The prisoner was indicted and tried for unlawfully and maliciously
wounding EUen Rolston, and there was a second count charging him
with a common assault. The evidence shewed that the prisoner, who
was a soldier, and one Thomas Evan Chappie quarrelled in a public-
house kept by the prosecutrix ; and the prisoner was knocked down by
Chappie. The prisoner went out into a yard at the back of the house,
but about five minutes afterwards returned and passed hastily through
the room in which Chappie was still sitting. The prisoner, as he passed,
having in his hand his belt which he had taken off, aimed a blow vnth.
his belt at Chappie and struck him slightly; the belt, however, bounded
off and struck the prosecutrix;, who was standing talking to Chappie, in
the face ; cutting her face open and wounding her seA erely.
The Recorder left these questions to the jury : —
1. Was the blow struck at Chappie in self-defence to get through
the room, or unlawfully and maliciously ? 2. Did the blow so struck
in fact wound Ellen Rolston 1 3. Was the striking of Ellen Kolston
purely accidental, or was it such a consequence as the prisoner should
have expected to follow from the blow he aimed at Chappie 1
The jury found : 1. That the blow was unlawful and malicious.
2. That the blow did in fact wound Ellen Rolston. 3. That the
SECT. IV.] Begin a v. Lut'inirr. 146
striking of Ellen Rolston was purely accidental, and not sudi a conse-
quence of the blow as the prisoner ought to have expected.
Upon these findings the Recorder directed a verdict of guilty to be
entered on the first count.
The question was, whether upon the facts and findings of the jury
the prisoner was rightly convicted of the oflence for which he was
indicted 1
Croft, for the prisoner, cited Reg. v. Pembliton^....T:\ie prisoner did
not intend to strike the prosecutrix ; and the jury have found that the
injury to her was purely accidental. Therefore there was no mens rea,
and the wounding was not malicious
Lord Coleridge, C.J. We are of opinion that this conviction must
be sustained. It is common knowledge that a man who has an
unlawful and malicious intent against another, and, in attempting to
carry it out, injures a third person, is guilty of what the law deems
maUce against the person injured ; because the offender is doing an
unlawful act, and has that which the judges call general malice, and
that is enough. Such would be the case if the matter were res integra ;
and it is not so, for Bex v, Hunt^ is an express authority on the point.
There a man intended to injure A, and said so, and, in the course of
doing it, stabbed the wrong man, and had clearly malice in fact, but no
intention of injuring the man who was stabbed.... So, but for Eeg. v.
PemblUon\ there would not have been the slightest difficulty. Does
that case make any diflTerence ? I think not. It was quite rightly decided,
but it is clearly distinguishable ; because the indictment in l!ig. y.
Pemhl'iton^ was on the Act making unlawful and malicious injury to
property a statutory offence ; and the jury expressly negatived, and the
facts expressly negatived, any intention to do injury to property ; and
the Court held that under the Act making it an offence to injure any
property there must be an intent to injure property. Reg. v. Femb/iton\
therefore, does not govern the present case ; and on no other ground is
there anything to be said for the prisoner.
Lord Esher, M.R. I am of the same opinion. The only case
which could be cited against the well-known principle of law applicable
to this case was Reg. v. Femblitori^ ; but, on examination, it is found to
have been decided on this ground, viz., that there was no intention to
injure any property at all. It was not a case of attempting to injure
one man's property and injuring another's; which would have been
wholly different.
BowEN, L.J. It is quite clear that the act was done by the prisoner
with malice in his mind. I use the word ' malice ' in the common-law
1 Infra, p. 157. * 1 Moo. C. C. 93.
K 10
146 Select Cases an Criminal Law. [part ii.
sense, viz., a person is deemed malicious when he does an act which he
knows mil injure either the person or the property of another. ... Av^. v.
Pembliton might have been ground for an argument of some plausibility,
here, if this prisoner had meant to strike a pane of glass and had hit
a person ; it might, in that case, have been that the malice was not
enou<^h. But... an intent to injure a person is proved ; that is enough.
The other two Judges concurred.
Conviction atiirmed.
SECTION V.
COMMON ASSAULTS.
[Force necessary to the discharge of a constable's duties does not
amount to an assault.^
BEALE V. CARTER.
Queen's Bench. 1589. Popham 12.
lu trespass of assault, battery and imprisonment,... the defendant
saith that he was constable of a town, and that the plaintift' brought an
infant not above the age of ten days in his arras, and left him upon
the ground to the great disturbance of the people there being; and
that he commanded the plaintiff to take up the said infant, and to
carry it from there with him, which the plaintiff refused to do ; for
wliich cause he quietly laid his hands upon the plaintiff and committed
him to the stocks in the same town ; where he continued for such
a time until he agreed to take up the infant iigain. Upon which the
plaintiff demurred.
Fknner was of opinion that that which the constable did was lawful;
and that it is hard that an officer shall be so drawn in question for it,
for this shall be an utter discouragement to good officers to execute
their offices as they ought to do.
PoPHAM. A constable is one of the most ancient officers in the
realm for the conservation of the peace, and by his office he is a
conservator of the peace. If he sees any man breaking of the peace he
may take and imprison him until he find surety by obligation to keep
the peace. And if a man in fury be purposed to kill, maim or beat
SECT, v.] Beale \. Carter. 147
another, the constable seeing it may arrest and imprison liitn until lii
rage be passed ; for the ctjuservation of the peace. And if a num Ijiy.s
an infant, which cannot help itself, upon a dunghill or openly in the
field, so that the beasts or fowls may destroy it, the oonstahle seeing it
may commit the party so doing to prison. For what grerxter breach uf
the peace can there be than to put such an infant by such mejuis
in danger of its life? And what diversity is there between tliis case
and the case in question ? For nobody was bound by the law to take
up the infant but he which brought it thither; and by such lueans the
infant might perish. The default thereof was in the plaintill', and
therefore the action will not lie.
And it was agreed that the plaintiff take nothing by his writ.
\_Force lawful in self-defence l\
GREEN V. GODDARD.
Queen's Bench. 1704. 2 Rat.kkld 641.
Trespass by assault and battery on October Ist. The defendant as to
vi et armis pleaded not guilty. And as to the residue says, That long
before, viz., on the 13th of September, a stranger's bull had broke into
his close ; that he was driving him out to put him in the Pound, and
the plaintiff came into the said close, and with strong hand hindered
him and sought to rescue the said bull; and that, in order to prevent
this, the defendant struck the plaintiff lightly with a small whip.
The plaintiff demurred.
Per Curiam. There is a force in Latv, as in every trespass quare
clausum /regit. As, if one enters into my ground. In that case the
owner must request him to depart before he can lay hands on him to
turn him out; for every impositio manuuni is an assault and battery,
which cannot be justified upon the account of breaking the close in
law, without a request. The other is actual force, as in burglary, as
breaking open a door or gate. In that case it is lawful to oppose force
to force; and if one breaks down the gate, or comes into my close
vl et armis, I need not request him to be gone, but may lay hands on
him immediately ; for it is but returning violence with violence. So if
one comes forcibly and takes away my goods, I may oppose him
without any more ado, for there is no time to make a request.
10—2
148 Select Cases on Criminal Laiv. [part ii.
Powell, J., held that the attempt to take and rescue the bull was
an assault on defendant's person, and a taking from his person. For if
H is driving cattle on the highway, and one comes and takes them
from him, it ia robbery; which cannot be without a taking from his
ptjrbuu.
\Force lavjful in removiiig persistent trespasser.^
WHEELER V. WHITING.
Herefoed Assizes. 1840. 9 Careington and Payne 262.
Assault and false imprisonment. [The defendant was landlord
of the Beaufort Arms Hotel, at Monmouth, and had given the plaintiff
into custody for making a disturbance.]
Patteson, J. The landlord of an inn, or the occupier of a private
house, whenever a person conducts himself as the plaintiff did (even
according to the evidence of his own witness), is justified in telling
him to leave the house ; and if he will not do so, he ia justified
in putting him out by force, and may call in his servants to assist
him in so doing. He might also authorize a policeman to do it ; but
it would be no part of a policeman's duty as such, unless the party
had committed some offence punishable by law. But, although it
would be no part of a policeman's duty to do this, it might be better
in many cases that a policeman should assist the owner of the house
in a matter of this kind, as he would probably get the person out of
the house with less disturbance than the owner himself could do.
I think that the defendant was quite justified in having the plaintiff
turned out of the house ; but to give him in charge to a policeman
*'to be dealt with according to law," is a very different thing. Telling
a policeman to take charge of him is the same as telling the policeman
to keep him in custody. Now as to the imprisonment, the defendant
pleads that the plaintiff was making a disturbance in the house and
ready and desirous to commit a breach of the peace, whereupon he
gave him in charge to the policeman, to be dealt with according to
law. The policeman, however, was not justified in taking him, unless
he saw some breach of the peace committed : on a charge of felony it
would be different. There are several questions in this case: — 1st, Did
the defendant cause the plaintiff to be assaulted and turned out of
SECT, v.] W/ieeler v. Whiting, 14<j
the housed it is plain that he did; 2nd, Was the plaintiff conducting
himself in an improper manner and disturbing the quiet of the house,
and did the defendant desire him to leave, and on his refusal to do so
put him out? On this question it is proved by the plaintiff's own
witness that the plaintiff was so conducting himself; for even if the
plaintiff had been ill-used by Mr Lawrence, he was not justified in
saying he would follow him into every room in the liouse ; and if he did
so say, the landlord had a riglit to tell him to leave the house and
insist on his doing so. Then, did the defendant request the plaintiff
to depart before force was used? It is essential to the defence that
that should be shewn ; for although a person be in the house of another
and misconducting himself, the owner has no right to turn him out
by force, without first requesting him to depart.
\^Bzit not if greater than is necessary for defence,']
COCKCROFT V. SMITH.
Queen's Bench. 1705. 2 Salkeld 642.
In trespass for an assault, battery and mayhem, defendant pleaded
son assault demesne ; which was admitted to be a good plea in mayhem.
But what assault was sufficient to maintain such a plea in mayhem ?
Holt, C J., said : — That he did not think it reasonable that foi-
every assault a man should be banged with a cudgel. The meaning of
the plea was, That he struck in his own defence. If A strike B, and B
strikes again, and they clo.se immediately, and in the scuffle B mayhems
A, that is S071 assault : but if upon a little blow given by A to B,
B gives him a blow that mayhems him, that is not son assault demesrie.
[Editor's Note.] "If the prosecutor aimed a blow at the defendant, and
missed him, still the defendant is not limited to warding oft the blow, but might be
justified in striking the prosecutor... [if]... it was reasonably necessaiy for self-
defence " ; Rex V. Carman Deariia, 25 T.L.E. 399.
150 Select Cases on Criminal Law. [part ii.
\Excessive force in self-defence.^
REGINA V. HEWLETT.
Bristol Assizes. 1858. 1 Foster and Finlasox 91.
Wounding with intent. The prisoner was indicted for woundin"
with intent to do grievous bodily harm to the prosecutor. It appeared
that the prisoner, with a knife, struck at one Witby. The prosecutor
interfered, and caught on his arm the blow intended for Witby.
Crowder, J. This will not sustain the charge of wounding with
intent to do grievous bodily harm to the prosecutor', but he may be
convicted of unlawful wounding.
It appeared that the prosecutor, Witby, and two women, who had
been drinking together, met the prisoner at midnight on the highway.
Some words passed between them, when Witby struck the prisoner.
The prisoner then made the blow which was the subject of the charge.
It was contended for him that, under the circumstances, he was justi-
fied in doing so.
Crowder, J. Unless the prisoner apprehended robbery, or some
similar offence, or danger to life or serious bodily danger (not simply
being knocked down), he would not be justified in using the knife in
self-defence.
Verdict, Not guilty.
[Excessive force in self-defence.^
OSBOKN AND ANOTHER v. VEITCH AND ANOTHER.
Maidstone Assizes. 1858. 1 Foster and Finlason 317.
Action for trespass and assault. Pleas : not guilty, and son assault
demesne. Issue.
The plaintifls were owners of a field in which the defendants were
walking with loaded guns at the half-cock in their hands. The
plaintid's desired them to withdraw and give their names, and on their
refusal, advanced towards them apparently as if to apprehend them.
The defendants half raised their guns, pointed them towards the
1 [EnrroR's Note. It would be other\vise had the prisoner stabbed the prose-
cutor in consequence of a supposition that he was Witby, See B. v. Smith, Dearsly,
559.]
SECT, v.] Osborn and another v. Vcitrh and another. 1". I
plaintitfs, and threatened to shoot them. The plaiiitifTs (one of whom
was a consta))le) then gave them in charge to a policoman lor shooting
with intent. He, with plaint! Us' assistance, seized and harulcuH'od them.
U. James, for the defendants, submitted that there was no a4;sault.
For, as the guns were only at half-cock, there was no "present aV)ility"
to execute the threat'.
Sed pel- WiLLES, J. Pointing a loaded gun at a person is in law
an assault. It is immaterial that it is at half-cock; cocking it ia an
instantaneous act ; and there is a " present ability " of doing the act
threatened, for it can be done in an instant.
H. James. The assault was ia self-defence j the defendants were
only trespassers, so the attempt to apprehend them was unlawful.
Excess is not even assigned **.
WiLLES J. It was not necessary that it should be. To shoot
a man is not a lawful way of repelling an assault. No doubt the
charge of shooting with intent was idle^ ; and the assault [i.e. the
pointing of the guns] was only a misdemeanor. The handcutfing was
utterly unlawful.
Verdict for the plaintifls ; damages one farthing.
\_Force must not he continued after self-defence has ceased to be
necessary.'^
KEGINA V. DKISCOLL.
Central Criminal Court. 1841. Cariungtox and Marshman 214,
The prisoner was indicted for unlawfully, maliciously, and feloniously
assaulting John Sullivan, on the 15th of August, and wounding him in
and upon the left side of the neck and left cheek, with intent to do
him some grievous bodily harm.
It appeared that the prosecutor and the prisoner had some dispute,
in the course of which the prisoner called the prosecutor a liar ; where-
upon the prosecutor clenched his fist and was about to strike him, but
the prisoner's wife interposed, and pushed him down, and the prisoner
inflicted on him the injury stated in the indictment.
1 Head V. Coker, 15 C. B. 850; 22 L. J. li., CP. 201.
2 Broughton v. Jackson, 18 Q. B. 378.
8 See Hogg v. Burgess, 27 L. J. R. Exch.
152 Select Cases on Criminal Law. [part ii.
Coleridge, J., in summing up, said — If one man strikes another
a blow, that other has a right to defend himself, and to strike a blow in
his defence. But he has no right to revenge himself : and if, when
all the danger is past, he strikes a blow not necessary for his defence,
he commits an assault and a battery. It is a cctuimon error to suppose
that one person has a right to strike another who has struck him, in
order to revenge himself ; and it very often influences people's minds.
I have, therefore, thought it right to state wliat the law upon the
subject really is.
Verdict, Guilty ; sentence, transportation for fifteen
years.
SECTION VI.
MALICIOUS OFFENCES AGAINST PROPERTY.
[Malice being necessary, the causing a fire unintentionally, even by
a felony, is not arson.']
THE QUEEN v. FAULKNER.
Irish Crown Case Reserved. 1876. 11 Irish Rep. C. L. 8.
Case reserved by Lawson, J., at the Cork Summer Assizes, 1876.
The prisoner was indicted under the 24 and 25 Vict. c. 97, for arson of
a ship, the "Zemindar." The indictment contained two counts; the
first charged that the prisoner feloniously, unlawfully, and maliciously
did set fire to the ship with intent thereby to prejudice the owners
of the ship; the second was similar, but charged the intent to be to
prejudice the owners of the goods and chattels on board the ship.
It was proved that the "Zemindar" was on her voyage home with
a cargo of rum, sugar, and cotton ; that the prisoner was a seaman on
board ; that he went into the forecastle hold, opened the sliding door
in the bulk -head, and so got into the hold where the rum was stored.
He had no business there, and no authoiity to go there, and went for
the purpose of stealing some rum. He bored a hole in the cask with
a gimlet; the rum ran out; when trying to put a spile in the hole out
of which the rum was running, he had a liglited match in his hand,
and the rum caught fire. The prisoner himself was burned on the
SKCT. VI.] The Qmen v. Fau/kntr. 153
arms and neck, and the ship caught fire and was completely destroyed.
...The Crown counsel conceded that the prisoner had no intention of
burning the vessel or of igniting the ruin, and raised no question as to
prisoner's imagining or having any ground for supposing that the tire
would be the result or consequence of his act in stealing the rum....
I told the jury that, although the prisoner had no actual intention of
burning the vessel, still, if they found that he was engaged in stealing
rum, and that the fire took place in the manner above stated, they ought
to find him guilty. The jury convicted the prisoner on both counts, and
he was seatenced to seven years' penal servitude.
« « « « «
O'Brien, J. With respect to The Queen y. remhliton^, it appears
to me there were much stronger grounds in that case for upholding
the conviction than exist in the case before us. In that case, the
breaking of the window was the act of the prisoner. He threw the
stone that broke it. He threw it with the unlawful intent of striking
some one of the crowd about; and the breaking of the window was tlie
direct and immediate result of his act. Yet the Court unanimously
quashed the conviction ; upon the ground that, although the prisoner
threw the stone intending to strike some one or more persons, he did
not intend to break the window. Tlie Court at the same time inti-
mated their opinion that if the jury had found that the prisoner,
knowing the window was there, might have reasonably expected that
the result of his act would be the breaking of the window, then the
conviction should be upheld.
During the argument of this case, the Crown counsel required us to
assume that the jury found their verdict upon the ground that in their
opinion the prisoner may have expected that the fire would be the
consequence of his act in stealing the rum, but nevertheless did the
act recklessly, not caring whether the fire took place or not. But at
the trial there was not even a suggestion of any such ground. And
we cannot assume that the jury formed an opinion which there was no
evidence to sustain, and which would be altogether inconsistent with
the circumstances under which the fire took place. The reasonable
inference from the evidence is that the prisoner lighted the match for
the purpose of putting the spile in the hole to stop the further running
of the rum, and that while he was attempting to do so the rum came
in contact with the lighted match and took fire.
The recent case of The Queen v. Welch"^ has been also referred to;
and has been relied on by the Crown counsel on the ground tliat,
1 L. 11. 2 C. C. R. 119. Infra, p. 157. ^^ 1 Q. B. D. 23.
154 Select Cases on Criminal Law. [part ii.
though the jury found that the prisoner did not in fact intend to kill,
maim, or wound the mare that had died from the injury inflicted by
him, the prisoner was nevertheless convicted on an indictment charging
him ^vith having unlawfully and maliciously killed, maimed or wounded
the mare, and such conviction was upheld by the Court. But on
referring to the circumstances of that case it will be seen that it does
not in any way conflict with the previous case of The Queen v.
Pembliton, and furnishes no ground for sustaining the present con-
viction. Mr Justice lindley, who tried that subsequent case, appears
to have acted in accordance with the opinion expressed by the Judges
in The Queen v. Pembliton. Besides leaving to the jury the question
of prisoner's intent he also left them a second question, namely,
whether the prisoner, when he did the act complained of, knew that
what he was doing might kill, maim, or wound the mare, and neverthe-
less did the act recklessly, and not caring whether the mare was
injured or not? The jury answered that second question in the
affirmative; their finding was clearly warranted by the evidence; and
the conviction was properly affirmed. By those two questions a dis-
tinction was taken between the case of an act done by a party with
the actual intent to cause the injury inflicted; and the case of an act
done by a party knowing or believing that it would or might cause
such injury, but reckless of the result whether it did or did not. In
the case now before us, there was no ground whatever for submitting
to the jury any question as to the prisoner believing or supposing that
the stealing of the rum would be attended with a result so accidental
and so dangerous to himself.
[Nine Judges concurred in the decision ; and one alone dissented
from it.]
Conviction (juasiied.
\_Foresight of tlie prohahility of arson, if comlined with rechJettsness as
to that probability, will be sufficient malice A
REGINA V. HARRIS AND ATKINS.
Central Criminal Court. 1882. Sessions Papers, xcv. 523.
James Harris and David Atkins were indicted for feloniously,
unlawfully, and maliciously setting fire to the house of John Derby
Allcroft with intent to injure him.
SECT. VI.] Rcgina v. Uarrix diid Af/.-ins. 155
[Evidence was given by vjuious witncsse.s, and iimon^st tlifiu liv
William Heain, who said] : — "I am a builder and carry on business in
Craven Terrace. In August last I was engaged by IVlr Allcroft to do
some work at his house, 108 Lancaster Gate. The prisoner Harris was
in n)y employ as a painter. On the morning of 14th September I w;ls
called to a fire at 108 Lancaster Gate. I found that a picture known
as "The Monarch of the Meadows" had been cut out of its frame. I had
seen it on the previous afternoon, standing in the boudoir. The frame
was partially burnt at the bottom, where it stood on tlie floor ; there
Avas oil on the canvas at the back of the frame, also some candle grease
on the lower right-hand corner of the frame ; and in front of the frame
was this piece of one of my cloths, partially burnt, it is part of the
covering that hung in front of the picture...! found nine of the joists
of the floor nearly burnt through."
Hawkixs, J., in leaving the case to the jury, .said, " If a mm sets
fire to a chatteP inside a house, and thereby accidentally and uninten-
tionally sets tire to the house, this would not be arson (Beg. v. Child ;
L. R., 1 C. C. R. 307). But if the house was wilfully set fire to for
the purpose of destroying the evidence of the picture having been
stolen, and so leading to the supposition that it had been destrr)yed,
that would amount to the crime of arson. Or again, if you should
think that Harris set fire to the picture-frame, not with the purpose of
setting fire to the house, but still with a knowledge that in all proba-
bility the house would be set fire to, and with a feeling of recklessness
and indifference as to whether it caught fire or not, then (as the house
was in fact set on fire though througli the medium of the frame)
there would be abundant evidence to justify a conviction for arson.
The jury, in reply to questions left to them, found — first, that the
prisoner did not set fire to the house apart from the frame ; secondly,
that he did set fire to the frame; thirdly, that the probable result
would be setting fire to the house; fourthly, tliat he did not intend to
set tire to the house ; fifthly, that he was not aware that what he did
would probably set fire to the house; sixthly, that he was not reckless
and indiff'erent as to whether it was set on fire or not. Upon these
findings his Lordship directed a verdict of
Not guilty.
1 [Editor's Nora. The statute (24 and 2-5 Vict. c. 97) contains no section
making it a felony maliciously to set fire to goods ; excej^t when they are (s. 7) in a.
buildiii- under certain particular circumstances, as to which see Rfff. v. Child,
L.R.I C. C. R. 207.1
156 Select Cases on Criminal Law. [part ii.
[But similar recklessness, vnthout actual foresight, will not sujice.]
REGINA V. NATTRASS.
Central Criminal Court, 1882. Sessions Papers, xcv. 520.
Maggie Nattrass was indicted, under 24 and 25 Vict. c. 97, s. 7, for
feloniously, unlawfully and maliciously attempting to set tire to the
dwelling-house of John Alexander by setting tire to certain things in
the said dwelling-house under such circumstances that if the house had
been set fire to, her act would have been felony. [Apart from this
statute, the attempt would have been only a misdemeanor.]
[Evidence was given by various witnesses, and amongst them by
Henry Brown, wlio said] : — " I am a friend of the prosecutor, I was
at his house on Sunday evening January 15th about 7 o'clock. He
shewed me some fires that had taken place. I went into the drawing-
room. I there heard a cry of "Fire!" I directly rushed out with
Mr Alexander into the nursery, and I assisted him to pull the things
off the bed and put out the fire. The counterpane and two blankets
were on fire and the spring mattress. The prisoner was in the room.
There was no fire in the grate ; the gas was alight ; that was six or
seven feet from the bedstead. I should not think the fire had been
burning very long ; it only took a minute or two to stamp it out with
our feet, I think some things were in flames, the blankets were
smouldering. I asked the prisoner why she did it, she said, ' I don't
know how I did it; I did not do it willingly'."
Hawkins, J. The mere setting fire to an article in the house,
which might have set fire to the house itself, will not do. There must
be an intent, or something from which we can infer an intent, to injure
the house itself, A mere intent to injure the owner by destroying
goods of his in the house is not sufficient,
Burnie, for Crown, submitted that such an intent to injure might,
however, suffice, provided it were accompanied by some utterly reckless
act which resulted in burning the house. Suppose the prisoner put
coals on the bed and set fiie to it, intending to injure the prosecutor,
although not intending the house to catch fire.
Hawkins, J. In my opinion even that would not suffice. 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 in my opinion
amount to a felony, even though the house catches fire. Unless indeed
the person setting fire to the goods knew that by so doing he would
probably cause the house also to take fire ; (in which latter case there
SECT. VI.] Reglna v. Nattrass. 157
would be strong evidence that he intended to l)ring ahout this probable
consequence, viz., the burning of the house). If the prisoner put
coals on the bed, but then called out "Fire!" immediately, so that
there was little chance of the house being burnt — or if she spitefully
set fire to the curtains, thinking that only the curtains would be burnt,
and then against her wish the house caught fire — that would not be
arson. In the present case the question for the jury is whether the
facts do not rather shew a disposition to destroy the goods, but not
the house. If so she might be punished for what she has done, but
not upon this indictment.
Verdict, JNot guilty.
[In all statutory wrongs of malice, there 'must be intention to do t/te
particular kind of harm that actually loas done.^
REGINA V. PEMBLITON.
Crown Case Reserved. 1874. L. R. 2 0. C. R. 119.
At the quarter sessions of the peace held at Wolverhampton, on
the 8th of January, Henry Pembliton was indicted for that he " un-
lawfully and maliciously did commit damage, injury, and spoil upon
a window in the house of Henry Kirkham," contrary to the provisions
of the statute 24 and 25 Vict. c. 97, s. 51'.
On the night of the 6th of December, 1873, the prisoner was drink-
ing with others at a public-house called "The Grand Turk," kept by
the prosecutor. About eleven o'clock, p.m., the whole party were
turned out of the house for being disorderly, and they then began to
fight in the street, and near the prosecutor's window, where a crowd of
from forty to fifty persons collected. The prisoner, after fighting some
time with persons in the crowd, separated hiuiself from them and
removed to the other side of the street, where he picked up a large
1 This section of the statute enacts : " Whosoever nhall unlawfully and ma-
liciously commit any damage, injury, or spoil to or upon any real or personal
property whatsoever, either of a public or a private nature, for which no punisb-
mciit is hereinbefore provided, the damage, injury, or spoil being to an amount
exceeding five pounds, shall be guilty of a misdemeanor; 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 hard labour."
158 Select Cases on Criminal Law. [part ii.
stone aud threw it at the persons he had been fighting with. The
stone passed over the heads of those persons and struck a large plate-
glass window in the prosecutor's house and broke it, thereby doing
damage to the extent of £7. 12s. 9d. The jury, after hearing evidence
on both sides, found that the j)risoner threw the stone which broke the
window, but that he threw it at the people he had been fighting with,
intending to strike one or more of them with it, hut^not intending to
break the window ; and they returned a verdict of " guilty." Thereupon
the learned Recorder respited the sentence and admitted the prisoner to
bail, and prayed the judgment of the Court for Crown Cases Reserved,
whether upon the facts stated and the finding of the jury the prisoner
was rightly convicted or not.
No counsel appeared for the prisoner.
Underhill, for the prosecution. The finding of the jury as to intent
is surplusage; directly it is proved that he threw the stone which
caused the damage without just cause, the offence is established.
[Lush, J. That omits the word " maliciously."]
In this Act thei'e are a number of sections in which intent is
a necessary ingredient to the ofience, and in all of them this is ex-
pressed. Thus a distinction is drawn by the legislature ; and if intent
had been necessary here, it would have been inserted. The common-
law rule as to malice is applicable here, and the consideration arises
whether " the fact has been attended with such circumstances as are
the ordinary symptoms of a wicked, depraved, malignant spirit" :
Foster's Crown Cases, p. 256 ; Russell on Crimes, vol. I. p. 667 (4th ed.).
And here the jury have found that the prisoner was actuated by
malice.
[Blackburn, J. But only of a particular kind, and not against the
person injured.]
In li<<J. V. Ward ' the prisoner was charged with Avounding with
intent, and convicted of malicious wounding, though his intention was
to frighten, not to shoot the prosecutor.
[Blackburn, J. There was evidence of malice in that case, but here
the express finding of the jury negatives malice.]
In Rex V. Hauyhton^ the prisoner set fire to a cowhouse, not know-
ing a cow was in it, and was convicted of maliciously burning the cow.
Su in Hale's Pleas, p. 474, throwing a stone over a wall with intent to
do hurt to people passing, and killing one of them, is murder.
' [Euitor'b Note.] Cf. the similar finding in Wuodley v. Cork, Irish L. R.
[1910] 2 K. B. 29.
2 Law Rep. 1 C. C. 356.
8 5 C. and P. 5.J9.
SECT. VI.] Regiuu v. PiiuhUhnt. 159
[Blackburnt, J. Lord Coke, 3 Inst., p. 66, puts the case of a man
stealing deer in a park, shooting at the deer, and by the glance of the
arrow killing a boy that is hidden in a bush, and calls this murder-
but can anyone say that ruling would be adopted now 11
The test is whether the act is malicious in itself, as in the case of
a person wilfully riding an unruly horse into a crowd : East, Pleas of
the Crowriy p. 231.
[Blackburn, J. I should have told the jury that if the jirisoner
knew there were windows behind, and that tlie probable consequence of
his act would be to break one of them, that would be evidence for
them of malice. The jury uiiylit perhaps have convicted on such a
charge. But we have to consider their actual findings.]
Lord Coleridob, C.J. I am of opinion that the conviction should
be quashed. The facts of the case are that there was fighting going on
in the streets of "Wolverhampton, near the prosecutor's house, and the
prisoner, after fighting some time, separated himself from the crowd
and threw a stone, which missed the person he aimed at, but struck
and broke a window, doing damage to the extent of upwards of £5.
The question is, whether under an indictment for unlawfully and
maliciously injuring the property of the owner of the plate-glass,
window, these facts will support the indictment, when coupled with the
other facts found by the jury, that the prisoner threw the stone at the
people intending to strike one or more of them, but not intending to
break a window. I am of opinion that the evidence does not support
the conviction. The indictment is under the 24 and 25 Vict. c. 97,
s. 51, which deals with malicious injuries to property, and the section
expressly saj's that the act is to be unlawful and malicious. There is
also the 58th section, which makes it immaterial whether the offence
has been committed from malice against the owner of the projierty or
otherwise, that is, from malice against some one not the owner of the
property. In both these sections it seems to me that what is intended
by the statute is a wilful doing of an intentional act. Without saying
that if the case had been left to them in a different way the conviction
could not have been supported, if, on these facts, the jury had conie to
a conclusion that the prisoner was reckless of the consequence of his
act, and might reasonably have expected that it would result in break-
ing the window, it is sufficient to say that the jury have expressly
found the contrary. I do not say anything to throw doubt on the rule
under the common law in cases of murder which has been referred to,
but the principles laid down in such cases have no application to the
statutable offence we have to consider.
Blackburn, J. I am of the same opinion. We have not now t<>
160 Select Cases on Criminal Law. [part ii.
consider what would be 'malice aforethought' to bring a given case
within the common law definition of murder. Here the statute says
that the act must be unlawful and malicious, and malice maybe defined
to be " where any person wilfully does an act injurious to another with-
out lawful excuse." Can this man be considered, on the case submitted
to us, as having wilfully broken a pane of glass? The jury might
perhaps have found on this evidence that the act was malicious, because
they might have found that the prisoner knew that the natural conse-
quence of his act would be to break the glass, and although that was
not his wish, yet that he was reckless whether he did it or not ; but the
jury have not so found. I think it is impossible to say in this case
that the prisoner has 'maliciously' done an act which he did not intend
to do.
*****
The other three Judges were of the same opinion.
Conviction quashed.
[See Reg. v. Faulkner, supra, p. 152.]
SECTION VIL
BURGLARY,
Chapter I. The Place.
\Burglary can only be committed in a dwelling-house.]
HEX V. DAVIS AKD ANOTHER.
Crown Case Reserved. 1817. Russell and Ryax 322.
The prisoners were tried before Mr Justick Abbott (present Mr
Justice Park), at the Old Bailey January Sessions, in the year 1817,
upon an indictment which charged them with breaking and entering
the dwelling-house of Thomas Porteous, Esq., in the day-time, certain
persons named being therein, and stealing therein a silver candlestick
of the value of fifty shillings.
SECT. VII.] Rex V. Davis and another. ICl
The house was situate in Half-Moon Street, Piccadilly; and the
evidence of breaking the house (upon which alone this case was
reserved), was the opening of the area gate at the street with a
skeleton key, and so descending the area steps, and entering the house
by a door in the area, which did not appear to have been shut.
Abbott, J., having some doubt whether this was a breaking of the
dwelling-house, told the jury he would reserve that point for tlie
opinion of the Judges, if they should think the prisoners got into the
house in the manner stated and stole the candlestick, and should
think the candlestick of less value tlian forty shillings.
The jury said, they thought the candlestick was not worth forty
shillings ; and in other respects they thought the prisoners guilty.
Abbott, J., dii-ected a minute to be made, tliat tlie verdict might
afterwards be recorded according to the opinion of the Judges upon
the point reserved ; and the learned Judge directed, that if the Judges
should be of opinion that this was a breaking, the verdict should be
recorded as finding the prisoners guilty of the breaking and entering,
&c., and stealing to the value of thirty-nine shillings. But if the
Judges should be of opinion that this was not a breaking, then the
verdict was to be recorded finding the prisoners not guilty of the
breaking, but guilty of stealing to the value of thirty-nine shillings, in
order that they might have the Benefit of Clergy.
In Hilary term, 1817, this case was considered by the Judges,
when they were unanimously of opinion, that breaking the area gate
was not a breaking of the dwelling-house, as there was no free passage,
in time of sleep, from the area into the house.
[Editor's Note. Even if the burglary were disproved, the charge of larceny
remained ; and in that charge, the value was a matter of importance. For though
the Benefit of Clergy could be claimed in cases of simple larceny, it was taken away
by 12 Anne, st. 1, c. 7 from larcenies which were aggravated by being committed in
a dwelling-house to a value of 40s. or upwards. In burglary, the benefit bad been
taken away by 18 Eliz. c. 7.]
\A building which, though occupied, is not slnpt in, is not a
dwelling-house. ]
REX V. MARTIN.
Crown Case Reserved. 1806. Russell and Ryan 108.
The prisoners were tried before Mr Baron Graham, at the Lent
Assizes for the county of Northampton, in the year 1806, on an indict-
K. 11
162 Select Cases on Criminal Law. [part ii.
ment for a burglary committed on the 19th of December, 1805, in the
dwelling-house of one Samuel Clayson.
The house was to all intents and purposes a complete dwelling-
house, if it could under the circumstances be considered as in/tabited,
upon which question the point arose.
The house stood in a street in Wellingborough, in the range of
houses, the entry from the street being by a common door-way. The
inside of the house consisted of a shop and parlour, from whence the
goods were taken, and a staircase leading to a room over the shop in
which there was bedding, but it was not fitted up. The prosecutor
took it about two years before the offence was committed, and made
several alterations in it, intending to have married and lived in it: but
continuing urunarried, and his mother living in a house next door but
one, he slept every night at her house. Every morning he went to
lus house, transacted his business in the shop and parlour, and dined
and entertained his friends and passed the whole day there, consider-
ing it as his only home. When he first bought the house he had
a tenant ; who quitted it soon afterwards, and since that time no person
had slept in it.
It appeared from the evidence, that the prisoners, and others
connected with them, had broken open the house in the night and
stolen drapery and hosiery goods to the amount of considerably more
than £200. But an objection was taken that the shop from whence
the goods were taken was not the dwelling-house of the prosecutor;
and though the objection aj)peared to the learned Judge to have weight,
he thought it proper, in a case attended with circumstances of con-
siderable aggravation, to overrule it. Tlie case being left to the jury,
they found the prisoners guilty; and sentence of death was passed
upon them; but the point was saved for the consideration of the
Judges.
The question reserved for the opinion of the Judges was, whether
this sort of inhabiting was sufficient to make the house the prosecutor's
dwelling-house.
In Easter term 28th of April, 1806, at a meeting of all the Judges
(except Lord EUenborough) the conviction was held wrong, the house-
not being a dwelling-house.
SECT. VII.] Uex V. Tliompmn. lOS
[Even though the tenant intend to sleep tliere 8u.ni.]
REX V. THOMPSON.
Surrey Assizes. 1796. Le\cii 771
Norreg Thompson was charged before Mr Justice Grose for
burglariously breaking and entering the dwelling-huuse of Thom.w
Parry, at Stoke Newington, on the 9th of November preceding, and
stealing two Brussels carpets, and a quantity of wearing apparel and
other articles, the property of the said Thomas Parry.
It appeared in evidence that the prosecutor had recently before
hired a house in the Apollo Plotts, in Walworth ; that neither he nor
any of his family or servants had ever yet slept therein ; but that he hjvd
removed a great part of his household furniture into the house, which
was locked up in the house after dark on the 9th of November. The
door was broken open and the goods taken away before daylight the
ensuing morning.
The Court was of opinion that this house, as no person liad in-
habited it, could not be considered as a dwelling-house so as to satisfy
an indictment for burglary.
And the prisoner was accordingly acquitted.
[Nor is it sufficient that persons do sleep there, unless they are m').ih>-rs
of the occupier's household.]
REX V. HARRIS.
Old Bailey Sessions. 1795. Leach 701.
At the Old Bailey in October Session, 1795, John Harris was tried
before the Recorder of London for burglariously breaking and entering
the dwelling-house of Henry William Dinsdale, on the 6th of October,
and stealing therein a gold watch value .£10, the goods of the s.iid
William Dinsdale.
It appeared in evidence, that Mr Dinsdale had lately taken the
house in Queen Street, in Cheapside, but had never slept in it himself ;
but on the night of the burglary, and for six nights before, had
procured two hair-dressers, of the names of Thomas Nasli and JaniM
Chamberlain, who resided at St Ann's-lane, near Maiden-lane, in Wood-
street, but in no situation of servitude to the pro.secutor, to sleep in
11—2
1G4 Select Cases on CHmiual Law, [part ii.
this house for the purpose of taking care of the goods and merchandize
belonging to Mr Diusdale, which were deposited in the house.
The Court was of opinion, that as the prosecutor had only so far
taken possession of the house as to deposit certain articles of his trade
therein, but had neither slept in it himself nor had any of his servants,
it could not, in contemplation of law, be called his dwelling-house.
The jury, therefore, under the direction of the Court, found him
guilty of the larceny only, but not guilty of stealing in a dwelling-
house, or of the burglary ; and he was sentenced to transportation for
seven years.
[But if occupied by a household Jmbitualli/, it remains a divelling-house
even during i/teir temjjorary absence.^
A RESOLUTION.
1594. PoPHAM 52.
It was agreed by all the Justices and the Barons of the Exchequer
(upon an assembly made at Serjeants' Inn), after search made for the
ancient precedents, and upon good deliberation taken : — That if a man
have two houses, and inhabit sometimes in one and sometimes in the
other, if that house in which he doth not then inhabit be broken in the
night, to the intent to steal the goods then being in this house, this is
burglary, although no person be then in the house. . . . For the house of
every one is the proper place to preserve his goods, although no person
be there.
REX V. NUTBROWN".
Newgate Sessions. 1750. Foster's Crowx Law 76.
John Nutbrown and Miles Nutbrown were indicted for burglary in
the dwelling-house of one Mr Fakney at Hackney, and stealing divers
goods. It appeared by Mr Fakney's evidence, that he held this house
for a term of years which is not yet expired, and made use of it
as a country-house in the summer, his cliief residence being in London.
That, about the latter end of the last summer, he removed with his
whole family to his house in the city, and brought away a considerable
SECT. VII.] Rex V. Niitbrown.
IG:
part of his goods. Thcat in November liis house was broke oj)fn ])efore
and in part rijfled : upon which he removed the remainder of his house-
hold furniture, except a clock, and a few old l)edstcads, and some
lumber of very little value; leaving no bed or kitchf-n-furnituro, nor
anything else for the accommodation of a family. ]\[r Fakney beinf,'
asked whether at the time he so disfurni.shed his house he had anv
intention of returning to reside there declared, that he had not come to
any settled resolution whether to return or not; but was rather in-
clined totally to quit the house, and to let it for the remainder of his
term. It was not till J.inuary that the prisoners broke into it.
The Court was of opinion, that the prosecutor having left his house,
and disfurnished it in the manner before-mentioned, without any settled
resolution of returning, but rather inclining to the contrary, it could
not, under these circumstances, be deemed his dwelling-house at the
time the fact was committed ; and accordingly directed the jury to
acquit the prisoners of the burglary ; which they did ; but found them
guilty of felony in stealing the clock and some other small matters : and
they were ordered for transportation.
N.B. Where the owner quittetli the house, animo revertendi, it
may still be considered as his mansion-house, though no person be left in
it ; many citizens, and some lawyers, do so from a principle of good
husbandry in the summer or for a long vacation. . . But there must be
an intention of returning, otherwise it will not be burglary.
Chapter II. The Breaking.
[^There must be a breakiyiff.^
REGINA V. BAYNES.
Newgate Sessions. 1594. Popiiam 84.
Indictment for burglary. The case was tliis: — one Buynes, with
another, came in the night-time to a tavern, in London to drink. And,
after they had drunk, the said Baynes stole, in a chamber of the same
house, a cup in which they drank
Agreed by Popiiam, Anderson, and Perriam, with the Recorder
and Serjeants-at-law then being there, that this was not burglary.
16G Select Cases on Crinihial Lnir. [part it.
[JBict either hreakiny in or (hy Statute) breaking out vnll suffice.']
THE KING V. M'KEARNEY.
Irish Crown Case Reserved. 1829. Jebb 99.
The prisoner was tried before M'Clelland, B., at the Spring Assizes
at Omagh in 1829, on an indictment for a burglary in the house of
Louis Davis. There were three counts in the indictment ; the first
for breaking and entering tlie house by niglit with intent to steal, &c. ; —
the second for entering the house with intent to steal, ifcc, and break-
ing said house by night, and getting out of the same; — the third for
entering said house with intent to steal, ifec, and by night breaking
out of said house.
It appeared on the trial that on the 8th of January, 1829, the
prisoner was, about 11 o'clock at night, discovered in the cellar of the
house hid under a heap of potatoes; he fled from the cellar into a room
in the house and locked himself in ; this room had a shed roof and
a sky-light in the roof. Davis, the owner of the house, heard the
sky-light breaking, and then ran round into his yard, when he saw the
prisoner with his head out of the sky-light endeavouring to escape, —
he struck the prisoner a blow on the head, when he fell down into the
room, where he was taken by a police constable immediately after, on
his breaking open the door which the prisoner had locked. The jury
convicted the prisoner, but the learned Baron entertaining some doubts
whether there was a sufficient breaking out of the house to constitute
the crime of burglary, reserved the following question for the twelve
Judges: Whether, the prisoner having only got his head out of the
sky-Ught, this was a sufficient breaking out of the house to complete
the crime of burglary/
The Judges unanimously ruled that the conviction was right.
\The hreakinr/ of even an inner door suffices.'^
REGINA V. WENMOUTH.
Bodmin Assizes. 1860. 8 Cox 348.
Indictment for burglary. The prisoner was in the service of
a carpenter and grocer ; and was apprenticed to him in tlie business of
carpenter, and lived in his house. The master, suspecting that he was
in the habit of robbing the till in the grocer's shop (which was
SECT, vir.] Rrrfina y. Wrnmouth. lt;7
detached from the rest of the house, but connected with the passage and
under the same roof) concealed himself there, havin;,' fastened the door.
About 1 a.m. the prisoner burst open the door and entered the shoi)
for the purpose of taking money from the till. He was stopped l)y his
master. Tlie prisoner had no business in the grocer's shop.
Cole, for prisoner, submitted that as the prisoner was doniicilcfl in
the house, his bursting open a door under the same roof could not he
housebreaking.
Keating, J. Even if the prisoner had opened the carpenter's shop,
under these circumstances, I should be of opinion that it was house-
breaking. I have no doubt that bursting open the door of the gi-ocer's
shop, in the manner described, was a sufficient breaking.
See also the Anonymous case given below, p. 175.
[Merely moving a dosed windoio is a sufficient b)-eaking.'\
REX V. HAINES.
Crown Case Reserved. 1821. Russell and Ryan 451.
The prisoners were tried and convicted before Mr Justice Richard-
son, at the Old Bailey Sessions, February, 1821, for burglariously break-
inf and entering the dwelling-house of Richard Plunkett, with intent
to steal the goods and chattels in the same dwelling-house then being.
The evidence was satisfactory as to the fact; but a doubt arose
whether the breaking was sufficient in point of law to constitute
burglary.
The prisoners were found in the front parlour of the prosecutor's
house, about a quarter-past five o'clock in the evening of the 16th
of January, 1821. It was then quite dark. It appeared that they
had entered through the upper part of the window, whicli the prose-
cutor had closed a short time before, and which the prisoners had
opened by pushing down the upper sash.
There was a fastening to the lower sash, but none to the upper
sash, which, during the daytime, was usually kept closed by the
pulley-weight only.
There was an outside shutter to this window, which was usually
closed and fastened about dark by the sons of the prosecutor, on their
168 Select Cases on Criminal Law. [part ii.
return from school ; but on the evening in question the closing the
outer shutter was delayed, in consequence of the children returning
later than -usual from school.
The question was, whether the pushing down of the upper sash by
the prisoners, in the manner stated, amounted to a sufficient breaking.
In Easter term, 1821, the Judges met, and considered this case.
They were unanimously of opinion that the pulling down of the sash
was a sufficient breaking, and the prisoner was rightly convicted.
\Bxit not moving a ivindow which is already partly open.'\
REX V. SMITH,
Crown Case Reserved. 1827. 1 Moody 178.
The prisoner was tried before Mr Justice Holroyd, at the
December Sessions at the Old Bailey, in the year 1827, for a capital
felony, in breaking and entering a dwelling-house and committing
larceny therein.
The housebreaking (if there was one by the prisoner) was by
pushing up or raising the lower sash of the parlour window; which was
proved to have been, at about eight or nine o'clock in the morning, in
a close state and shut quite down, but to have been also seen about
twelve o'clock at noon of the same day in an open state or raised
about a couple of inches, with the prisoner very near it ; but yet only
so open and raised as that there was not room enough for a person to
enter the house through that opening, and commit the larceny. On
the evidence it was clear, that the prisoner immediately afterwards
tlirew the sash quite up, and then having thus removed the obstruction
to his entrance, entered through tlie enlarged aperture thus made, and
committed the felony; but the jury declared their opinion to be that
the prisoner did not open the window all the way, but only raised the
sash a second time.
He was convicted of the full offence, on the authority of a similar
case that had recently occurred at the Old Bailey, a note of which was
furnished by Mr Baron Hullock: in which case similar circumstances
had been held to amount to a felonious breaking of the house.
From doubts, however, that were understood to have been after-
wards expressed upon the point, the learned Judge respited the judg-
»ECT- VII.] Hex V. iSinith.
IG'J
ment, in order to take the opinion of tlio Jud^'es upon the j.ropri.Hy of
the conviction, as to the capital part of tlie oHence.
The question for the opinion of the Judges was, whether tliu
prisoner was properly convicted of the house-breaking, or whether he
should have been convicted of larceny only?
In Hilary term, 1828, the Judges met, and all thought there was
no decision under which this could be held to be a breaking, and that
they ought not to go beyond what had been decided, unless the case
was within some settled principle, which this was not ; and that the
conviction for house-breaking was, therefore, wronf^.
[A mere entry, if obtained by deceit, is in law a constructive brcahing^
LE :\rOTT'S CASE.
Old Bailey. 166-. Kelyng 42.
At the Sessions I enquired of Le Mott's case, Avhich was adjudged
in the time of the late troubles. My brother Wylde [the Recorder]
told me, that the case was this : That thieves came with intent to rob
Le Mott, and, finding the door locked up. pretended they came to
speak with him. Thereupon a maid servant opened the door; and
they came in and robbed him. And this being in the night-time, this
was adjudged Burglary, and the persons hanged. Eor their intention
being to rob, and getting the door open by a false pretence, this was in
fraudem legis. So they were guilty of Burglary, though they did not
actually break the house. For this was in law an actual breaking ;
being obtained by fraud to have the door opened. As, if men pretend
a warrant to a constable, and bring him along with them, and under
that pretence rob the house, this, if it be in the night, is Burglary.
[Constructive breaking.^
REX V. GASSY.
Newgate Sksrions. 1666. Kelyng 62.
Thomas Cassy and John Cotter were indicted for robbing "\\'i]Iiani
Pinkney, a goldsmith, in his house near the highway by the Temple
Bar, in the night-time ; and stealing several parcels of plate and other
170 Select Cases on Criminal Law. [part ii.
things from him. They were also indicted for the same offence as
a burglary ; for breaking his house in the night, and stealing his plate.
On both these indictments they were arraigned and tried. Upon
the evidence the case appeared to be, that Cotter was a lodger in the
house of the said Pinkney, and, knowing that he had plate and money
to a f^ood value, he combined with the aforesaid Cassy, and one John
Harrington, and Gerard Cleasehard. They three contrived that one of
those three should come, as servant of the other, to hire lodgings there,
for his master and another gentleman. Cotter told them, that Pinkney
was one who constantly kept prayers every night ; and they could not
have so good an opportunity to surprise him as to desire to join in
prayer with him, and at that time to fall on him and his maid, there
being then no other company in the house. Accordingly one of them
came on Saturday, in the afternoon, and hired lodgings there, pretend-
ing it to be for his master and another gentleman of good quality.
A nd about eight o'clock at night they all came thither ; two of them
being in very good liabits ; and wlien they were in their chamber they
sent for ale, and desired Pinkney to drink with them, which he did.
While they were drinking, Cotter came in to his lodging ; and they,
hearing one go upstairs, asked who it was, and Pinkney told them it
was an honest gentleman, one Mr Cotter, who lodged- in his house.
They desired to be acquainted with him, and that he might be desired
to come to them. Thereupon Pinkney sent his maid to him, to let him
know the gentlemen desired to be acquainted with him. To wliich.
Cotter sent word it was late, the next day was the Sabbath, and he
desired to be private. Thereupon those persons told Pinkney they had
heard he was a religious man, and used to perform family duties ; in
which they desired to join with them. At which Pinkney was very
well pleased that he had got such religious persons ; and so called to
prayers. While he was at his devotion, they rose up, and bound him
and his servant ; and tlien Cotter came to them and shewed them
where the money and plate lay. They ransacked tlie house, and broke
open several doors and cupboards fixed to the house. Upon this
evidence, myself, my brother Wylde (Recorder), and Mr Howell
(Deputy Recorder), (being all who were there present of the long robe),
were of opinion that the entrance into the house being gained by fraud,
with an intent to rob, and they making use of this entrance, thus fraudu-
lently obtained in the night-time, to break doors open, this was
Burglary (agreeable to the case of Farr in this book, and the case of
Mr Le Mott in this book). Accordingly they were found guilty ; and
had judgment ; and were executed.
SECT. VII.] Er{/ill(l V. JoJniSfHi (finl Jones. 171
[Bui not an entry wldch folloius upon a mere unsuccessful altumul to
deceive.^
REGINA V. JOHNSON AND JONES.
Central Criminal Court. 18 tl. Caurinoton and Marriimav 218.
Indictment for burglariously l)n',ikiug and entering the house of
Joseph Drake, [and also for a larcenv therein.]
A lad named Cole, who was groom to Mr Drake, met with the
prisoner Jones on Thursday the L'Gtli of August, and they entered into
conversation about the badness of trade. Jones said that he would
not blame anybody who would rob another in these hard times ; and
asked the lad where his master kept his plate, and being told said, that
if he would let him into the house he would give him £500. The lad,
almost immediately, told a policeman what had passed ; and, his master
being out of town, agreed to act under the directions of the police, in
order to detect the prisoner Jones. He accordingly met him on the
Saturday, and arranged to meet him again on the Sunday, when they
met with the other prisoner Johnson; and it was arranged that Cole
should get the other servants out of the way and admit the two
prisoners to the house on the Sunday evening. In the mean time
several policemen were secreted in the prosecutor's house. The lad
Cole, about a quarter past nine in the evening, went and fetched the
prisoner Johnson to the house. Cole then lifted the latch of the stable-
yard door and a little gate, and also the kitchen door, and let Johnson
in, and followed him into the back kitchen. Johnson then went up-
stairs, and, as he was about to open the door of the room in which the
prosecutor's iron chest was deposited, the police seized him before he
had done anything, and locked him up in one of the rooms of the house.
A few minutes after he had been so locked up, Cole, who had been out
to fetch the other prisoner Jones, brought him to the house and let him
in in the same way as he had let in Johnson, viz. by opening the
door for him. Jones went into the back kitchen, and tc)ok from it the
plate-basket containing the articles of plate mentioned in the indict-
ment.
Maule, J., in summing up (Rolfe, B., being present), said— It
appears to me that on the present occasion, according to the e\'iclence,
there was no such breaking as to constitute the crime of burglary.
Cole, the groom, it is true, appeared to concur with the prisoners in the
commission of the offence. But in fact he did not really concur with
them ; and he, acting under the directions of the police, must be taken
to have been actincc under the direction of Mr Drake the prosecutor.
172 Select Cases on Criminal Law. [part ii.
Uuder the circumstances of this case the prisoners went in at a door
which, as it seems to me, was lawfully open. Therefore neither of
them was guilty of burglary. And the prisoner Johnson, if not guilty
of burglary, was not guilty of anything that is cliarged in the indict-
ment, because he was in custody at the time when the plate was taken.
Verdict — Jones, guilty of stealing in a dwelling-
house goods above the value of £5 ; Johnson,
not guilty.
Johnson was detained to be indicted as an accessory before the
fact to Jones' offence; and, at the following Sessions, was tried and
convicted.
Chapter III. The Entry.
[Entry of any jx^'i't, however small, of the body of the Jmrglar
suffices. '\
REX V. DAVIS.
Crowx Case Reserved. 1823. Russell and Ryan 499.
The prisoner was tried at the Old Bailey Sessions, in January,
1823, before the Chief Baron Ricjiakds, for burglary, in the dwelling-
house of Montague Levyson.
The prosecutor Levyson, who dealt in watches and some jewellery,
stated, that on the 2nd of January, about six o'clock in the evening, as
he was standing in Pall Mall opposite his shop, he watched the prisoner,
a little boy, standing by the window of the shop which was part of the
prosecutor's dwelling-house ; and presently observed the prisoner push
his finger against a pane of the glass in the corner of the window.
The glass fell inside by the force of his finger. The prosecutor added
that, standing as he did in the street, he saw the forepart of the
prisoner's finger on the shop side of the glass ; and he instantly appre-
hended him.
The jury convicted the prisoner; but the learned Judge, liavin-^
some doubt whether this was an entry sufficient to make the offence
a burglary, submitted the case to the consideration of the Judges.
In Hilary term, 1823, the case was taken into consideration by the
Judges ; who held, that there was a sufficient entry to constitute
burglary.
SECT. VII.] Rex V. Hughes. 17;{
[And the insertion of an instrnment, if fur th>- purpose of .tfcrtinf,
the ulterior felony aimed at, constitutes an A',tlri/.\
A RESOLUTION.
A.D. 1583. 1 Anderson 114.
All the Justices, assembled at Serjeants' lun, agreed that if one
breaks the glass in a window in any one's dwelling and, with hooks,
drags the carpets out and feloniously takes them away, this, if done in
the night-time, is burglary, although the man who did it never entered,
or broke, the house in any further way.... And an actual case was
mentioned; which was this: — in the night, one who meant to shoot
another, in a house, broke a hole through the wall of the house and
...shot at him through the hole with a gun, and missed him; which
was adjudged to be burglary. Just as where one broke a hole in the
wall ; and, seeing one (who had a purse, with money in it, hanging at
his girdle) coming by the hole, snatched the purse and got it. This
also was agreed to be burglary ; which happened in Essex.
REX V. HUGHES.
Crown Case Reserved. 1785. Leach 406.
This was an indictment for burglary with intent to steal, tried
before Mr Justice Willes at the Old Bailey in December Session.
It appeared in evidence, that the prisoner had bored a hole, with
an instrument called a centre-bit, through the panel of the house-
door, near to one of the bolts by which it was fastened, and that some
pieces of the broken panel were found within-side the threshold of the
door; but it did not appear that any instrument, except the point of
the centre-hit, or that any part of the prisoners' bodies had been within-
side the house, or that the aperture made was in fact large enough to
admit a man's hand.
The Court was clearly of opinion, That this was a sufficient break-
ing; but the doubt was, Whether it could possibly be construed such
an entry as the law requires to constitute the crime of burglai-y?
Prisoner's counsel. Breaking without entering, or entering without
breaking, makes not burglary It must be acknowledged that, from
an anxiety to preserve domestic security sacred and inviolate during
the hours of night, the ancient principles of the conniinn law respecting
174 Select Cases on Criminal Law. [part ii.
burglary have been construed with a latitude not usual in questions
of life or death ; and it has been held, that the smallest degree of
entry whatever is sufficient to satisfy the law. Putting a hand, or a
foot, or a pistol, over the threshold of the door, or a hook or other
instrument through the broken pane of a window, have been decided
to be burglarious entries ; but the principle of all these new determi-
nations is, that there has been such a previous breaking of the castle
of the proprietor, as to render his property insecure, b}^ affording to
the burglar an opportunity to commit the projected felony, of whatso-
ever kind or description that felony may be. And in those cases
where an instrument has formed any part of the question, it has always
been taken to mean, not the instrument by which the breaking was
made, but the instrument (as a hook, a fork, or other thing by which
the property was capable of being removed) introduced subsequent to
the act of breaking, and after that essential preliminary had been fully
completed. Suppose the brick-wall of a house to be broken with
a pickaxe, and that part of the pickaxe had in the violence of breaking
been within-side of the house, could this have been held an entry to
steal ? In the present case, the introduction of the instrument is part
of the act of breaking ; it is impossible to conceive that it was
introduced for the purpose of purloining property, for it is incapable of
performing such an office. It was used for the purpose of breaking
into the domicile of the proprietor ; and if the breaking it eCTected
had enabled the prisoners by any possible means to have taken goods
through the aperture, that branch of the offence would most certainly
have been complete ; but as no property has been proved to lie near
the hole, so as to be removed by means of a hand, hook, or other
instrument, the degree of breaking seems insufficient for this.
The prisoners were acquitted of the felony.
\^But the insertion of an instrument, if for the mere purpose q/* breaking,
does not constitute an Entry.^
REX V. RUST AND FORD.
Crown Case Reserved. 1828. 1 Moody 183.
The prisoners were tried and convicted before Mr Justice Park
at the Aj)iil Old Bailey Sessions, 1828 (present Mr Baron Oarrow), for
burglariously breaking and entering the dwelling-house of John Roper
with intent to steal.
SECT. VII.] Rex V. Rust and Ford. 17.-,
Of the breaking there was no doubt; and the Icanifd Judg.- l.ft
the intent to the jury, telling tliem if tliey thought the intent WiUi to
steal, to find the prisoners guilty; and he would take tlx; opinion of the
Judges upon the question of entering, the counsel for the prisoners
having contended there was no sufficient proof of an entry. Tlio jury
having found the prisoners guilty, judgment was respited.
The facts as to the entering were these ; the glass sash-window was
left closed down, but was thrown up by the prisoners; the inside
shutters were fastened, and there was a space of about three inches
between the sash and the shutters, and the shutters themselves were
about an inch thick. After the sash was thrown up, a crowbar had
been introduced to force the shutters, and had been not only within
the sash, but had reached to the inside of the shutters, as the mark of
it was found on the inside of the shutters.
The inclination of the learned Judge's opinion at the trial, as
well as that of Mr Baron Garrow, was that this was no burglary ; as it
did not nor could it appear whether any part of the hand was within
the window, although the aperture was large enough to admit the
hand. In Easter term, the learned Judges determined that this
conviction was wrong, there being no proof that any part of the
prisoner's hand was within the window.
Chapter IV. The Intent.
[Though there must he an intent to commit some ulterior felony nisida
the house, it need not be actually committed,^
[See R.EX v. Davis, supra, p. 172.]
176 Select Cases on Crim'uud Laic. [part ii.
\^An intent to commit a felony of any kind will suffice.^
ANONYMOUS.
Old Bailey Sessions. 1667. Kelyng 67.
A servant in the house, lodging in a room remote from his master,
draweth in the night time the latch of a door, to come into his master's
chamber, with an intent to kill him. This on a special verdict was
agreed by all the Judges to be burglary.
\^But not an intent to com.mit a misdemeanor, or a Tort, e.<^., a
trespass to the person.^
THE STATE v. COOPER.
Supreme Court of Vermont. 1844. 1 Washburn 551.
George Cooper was charged on two counts : — the first alleging
that he burglariously and feloniously entered the dwelling-house of
one Cyrus Marston, in the night-time, with intent to commit a rape ;
and the second count alleging that he burglariously and feloniously
entered the same dwelling-house in the nighttime with intent to
commit adultery. The jury returned a verdict of guilty on the second
count only.
He then, assigning as cause the insufficiency of the second count,
moved the Supreme Court to arrest this judgment.
Per Curiam. Adultery is not a felony nor even a crime at common
law. It is merely a civil injury. 3 Bl. Comm. 139. Until the legis-
lature think proper to declare the act, which the respondent was con-
victed of, to be a burglary, we cannot determine it to be so. The
judgment is arrested.
[0?- a trespass to chattels.^
HEX V. DOBBS.
Buckingham Assizes. 1770. East's Pleas of the Crown 513.
Prisoner was indicted for burglary in breaking and entering the
stable of J. Bayley, part of his dwelling-house, in the night, with
a felonious intent to kill and destroy a horse which was there. It
appeared that the horse was to have run for a prize of forty guineas,
and that the prisoner cut the sinews of his fore-leg to prevent his
running. In consequence of which, he died.
SECT. VII.] Rex y. Dohhs. 177
Parkkk, C.B., ordered him to be acquitted. For his intontion wiin
not to commit the [statutory] felony of killing; and deatroying the
horse; but only a trespass^ to prevent liis runnin'^
The prisoner was, however, subsequently indicted for killing the
horse; and was convicted.
[^Trespass to chattels.^
REX V. KNIGHT AND ROFFEY.
SussKx Assizes. 1781. East's Ple.vs of tiik Hrown 510.
Indictment for burglary in breaking and entering the dwelling-
house of Mary Snelling, at night, with intent to steal the goods of
Leonard Hawkins. It appeared that Hawkins, being an Excise officer,
had seized at the shop of a Mrs Tilt 17 bags of tea, which were entered
in the name of Smith ; in consequence of their being there without
a legal permit. Hawkins removed the same to Mrs Snelling's house,
where he lodged. ...At night the prisoners and divers other persons
broke open the house, with intent to take this tea. It was not proved
that Smith was in company with them ; but the witnesses swore that
they supposed the act was committed either in company with Smith or
by his procurement. The jury were directed... to find, as a fact, witli
what intent the prisoners broke and entered the house. They found
tha#they intended to take the goods on behalf of Smith.
All the Judges held, in the Easter Term following, that the
indictment was not supported ; there being no intention to steal, how-
ever outrageous the behaviour of the prisoners was in endeavouring
thus to get back the goods for Smith.
[Intent to commit a breach of trust!\
REX V. DINGLEY [or BINGLEY].
Kino's Bench. 1687. Shower 53; Leach 840.
By a special verdict, the jury found that the prisoner was a servant,
employed to sell goods and receive the purchase-money for his master's
1 [Editor's Note. But now under 24 and 25 Vic. c. 97, 8. 10 it is a felony uot
only to kill but even to maim or wound horses or other cattle, maliciously.]
K. 12
178 Select Cases on Criminal Law. [part ii.
use. He sold a large parcel of goods ; and received a hundred and
sixty guineas for them frojii the prosecutor. Ten of these he deposited
in a private place in the chamber where he slept. On being discharged
from his master's service, he took away with him the remaining hundred
jind fifty guineas. But he afterwai-ds, in the night-time, broke open
his master's house, and took away with him the ten guineas he had hid
privately in his bedchamber.
This was held by the Court of King's Bench to be no burglary.
For the taking away of the money was no felony ; because, although it
was the master's money in right, it was the servant's money i7i posses-
sion^. And the first original act was no felony... when the prisoner,
who ought to have put the moneys into his master's till, instead uf so
doing, hid them in his bedroom If he had laid it underground in the
garden ; and afterwards had come and taken it away, that taking
would have been no felony.
[The felonious intent must exist at the time of the hreaMng.']
Old Bailey. 1665. Kelyng 46.
REX V. GARDINER.
Mr Martin Gardiner and otlier officers and their soldiers to the
number of nineteen were indicted for breaking open tlie house of
Jonathan Hutchinson in Cheapside in the day-time Lord Arlington,
the King's Secretary made a warrant to appi-ehend certain dangerous
persons named in the warrant ; and directed it to one of the King's
Messengers. He, having notice that the persons named were at a
meeting in Hutchinson's house, desired these soldiers to assist him.
Whereupon they came to the house and apprehended some of them.
But, in the doing of it, some of the common soldiers (without the
knowledge of their officers and against their command) took away
a cloak and some small things out of the Iiouse. But the witnesses
could not tell which of the soldiers they were
I did to this effect declare the law. (1) That if several persons
come into a house together, with an intent to steal, if but one of
them steal goods, they all are t'(iually guilty. (2) Tiiat this warrant
^ [Editok's Notb. See below, Section x., thai uutil the Statute of iT'.lU,
embezzlement was not crimiual.j
SECT. VII.] Rex V. Gardiner. 17:i
was not sufficient to justify tlie breaking open the doorH of tlio house'....
(3) That this breaking of the door niaketh tht-ni trespus-sers but cuii
never be interpreted to make them guilty of felony; for their design
[theii] was not to commit felony.... (4) If, after a door broken with
intent to apprehend a person any of the company take away any of
the goods from the house, this is felony in the person that did it, but
in none of the rest; unless... any of the rest were assenting to the
taking of the goods, and then it is felony in as many as consented.
SECTION VIII.
HOUSEBREAKING.
[The cases given above under Burglary, Chaps. II., III., TV. (to
explain what constitutes a sufficient Breaking, Entry, or Intent),
are equally applicable to Housebreaking.]
SECTION TX.
FORGERY.
Chapter I. The Instrument.
[/< is a misdemeanor at common law to Jorge any kind of written
document.^
REGINA V. RILEY.
Cnovnj Case Reserved. L.R. [1896], 1 Q.B. 309.
Case reserved for the consideration of the Court by Kennedy, J.
The prisoner was indicted under s. 38 of 24 and 25 Vict. c. 98, for
that he "feloniously did cause and procure to be delivered and paid to
one Henry Dorber certain money, to wit, the sum of nine pound.s, the
property and moneys of George Crompton and Samuel Radcliffe, under,
1 See Foster's Crown Law, 135, 320. 2 Hawkins P.O., chap. 14.
12 2
180 Select Cases on Criminal Law. [part ii.
upon, and by virtue of a certain forged instrument, to wit, a forged
telegram, that is to say, a forged message and communication purport-
ing to have been delivered at a certain post office, to wit, at Royal
Exchange, Manchester, for transmission by telegraph, and to have been
transmitted by telegraph to a certain other post office, to wit, the head
post office at Manchester, with intent thereby then to defraud, he the
said Henry Riley then well knowing the same forged instrument to be
forged against the form, &c."
It appeared that the prisoner was a clerk in the telegraph depart-
ment of the head post office at Manchester. He had obtained from
Dorber permission to make bets in his name with Messrs Crompton and
Radcliffe, who were bookmakers, and with whom Dorber was in the
habit of doing business. On June 27, 1895, the race known as the
Newcastle Handicap was to be run at 2.45 p.m., and on that day the
prisoner sent to Crompton and Radcliffe, in the name of Dorber,
a telegram in these words — " Three pounds, Lord of Dale." The
telegram purported to have been handed in at the Royal Exchange
office at Manchester at 2.40 p.m., and to have been received at the
head office at 2.51 p.m., from which office it was transmitted to
Crompton and Radcliffe. In reality the telegram was not handed in at
the Royal Exchange office at all, but it was despatched by the prisoner
from the head office after the news had arrived there that the race had
been won by Lord of Dale. Messrs Crompton and Radcliffe, acting
on their usual practice, and believing that the bet was offered before
the race was run, accepted it at the current odds of 3 to 1 against Lord
of Dale, and in the result credited Dorber with £9, which in due course
would be received by the prisoner.
No suggestion of fraud was made against Dorber.
The prisoner pleaded guilty.
The questions on which the opinion of the Court was asked by the
learned Judge were —
(1). Whether the telegram was a forged instrument within the
meaning of s. 38, and whether the prisoner could be convicted on the
indictment
Hawkins, J.... By the 24 and 25 Vict. c. 98, s. 38, "Whosoever
with intent to defraud shall demand, receive, or obtain, 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 paid to any person,
any chattel, money, security for money, or other property whatsoever
under, upon, or l)y virtue of any forged or altered instrument wliat-
Koever, knowing the same to be forged or altered," shall be guilty of
felony. . . .
SECT. IX.] Regina v. Rifei/. 181
I proceed to discuss the question reserved for our conHidcration :
whether the telegram described in the case constiLute.s a forged
"instrument" in law ; and whether it is such an iustrumeut aa ia con-
templated by s. 38.
My answer to both these questions is in the aifirmative.
In 4 Blackstone's Comm.'intaries, 247, forgery at common law in
defined as " the fraudulent making or alteration of a wriliug to the
prejudice of another man's right." I seek for no other definition for
the purposes of the present discussion. That a postal telegram is
a writing is to my mind clear. It originates in a written message-
addressed and signed by the sender, and delivered Iiy him into the post
office of despatch for the express purpose that it shall, in the very
words in which it is penned, be transmitted by means of an electric
wire to another post office, which I will call the arrival office, and that
it shall there again on its arrival be committed to writing verbatim et
literatim, and that such last-mentioned writing shall be handed to the
person to whom it is addressed. The writing dehvered in at the office
of despatch is the authority of the postmaster to transmit the message,
and of the postmaster at the arrival office to commit it to writin" and
to deliver it to the addressee as the sender's written message to him.
This message sent out from the arrival office is, in my opinion, as
binding upon the sender as though he had written it with his own
hand. If I am right in this, it follows that an offer by telegram
accepted by telegram might well create a contract sufficient to satisfy
the Statute of Frauds between the sender and the addressee, and
a verbal offer accepted by telegram might create an ordinary contract.
For tliiw there is the authority of the Court of Common Pl«a8 so long
ago as 1870: see Godwin v, Francis^.
Assuming the telegram to be such a writing as I have stated, a bare
reading of the contents of it, coupled with the admission of its falsity
and of the purpose for which it was made, are overwhelming to esta-
blish that it was fraudulently made to the prejudice of another man's
right, and thus a forgery at common law. For this I need only cite
the judgment of Blackburn, J., in Eeg. v. Bitnon^ : " When an instru-
ment professes to be executed at a date different from that at which it
really was executed, and the false date is matei'ial to the operation of
the deed, if the false date is inserted knowingly and with a fraudulent
intent, it is a forgery at common law."
In this case, unless the telegram was dated and despatched before
the race was run, it would have been inoperative. The time of
1 L. E. 5 C. P. 295. » L. E. 1 C. C. 'JUD, at p. 204.
182 Select Cases on Criminal Law. [part ii.
despatch was therefore material : falsel}- to write the telegram so as to
make it appear that it was sent in for despatch before the race was lun,
when it was not sent in till afterwards, was to make it appear on the
face of it to be that which it was not.
The more vexed questions, hoAvever, are whether the writing can be
treated as an instrument, and, if so, whethiu' it is such an instrument
as is contemplated by the 38th section, the contention for the prisoner
bfing that it cannot properly be treated as an instrument at all, and
that, even if it can, that the 38th section has reference only to such
forged legal or commercial instruments as are mentioned (and the
forgery of which is made felony) in the earlier sections of the statute.
After much consideration, I have formed an opinion adverse to the
prisoner on both these points.
Now, can this telegram properly be called an instrument? I am
not aware of any authority for saying tliat in law the term "instru-
ment ■' has ever been confined to any definite class of legal documents.
In the absence of such authority, I cannot but think the term ought to
be interpreted according to its generally understood and ordinary
meaning. When applied to a writing, Dr Johnson defines it as "a
writing — a writing containing any contract or order." Webster's defi-
nition is "a writing expressive of some act, contract, process, or
proceeding." Tliese definitions cover an infinite variety of writings,
whether penned for the purpose of creating binding obligations or
as records of business or other transactions.
Every one of the documents mentioned in the statute is unquestion-
ably an instrument, and intended to be so treated. Throughout the
statute it is eA'ident the legislature attached no rigid definite meaning
to tlie word, for it is used in a variety of senses, all falling witliin
one or other of the definitions of Dr Johnson and Webster to whicli I
have referred....
It will not, of course, be denied that there are very many instru-
ments of an important character, commercial and otherwise, the forgery
of which constitutes only olFences at common law. I do not, for
instance, find that the forgery of an ordinary written contract (not
under seal or specially named in the statute) is a felony. So also
a certificate of ordination, though the forgery of it is a mere common law
offence, was nevertheless spoken of as an instrument by Blackburn, J.,
in I?eg. v. Morton^
In my view of the case, the telegram in question is an instrument
of contract ; it is the instrument which completed the wager offered by
Cronipton and Radclifle to tiiose who were able and disposed to accept
1 L. K. '2 C. C. 22.
SECT. IX.] Reijina v. 7>* //<//. \^:\
it (see CarlUl v. Carbolic Smoke Ball Co., Limited^, and the ca-sea tlu-ro
cited), and thenceforth an obligation was imposed upon each party in
honour to fulfil it according to the result of the race. I Kay in honour,
because, though it was clearly not an illegal contract, it could not Iks
enforced by any legal process. In virtue of it, and upon the assunip
tion that the telegram was what it purported to be, Messrs Croinpton
and Radcliffe paid the £9.
Assuming the document to be an "instrument," I come to tiie onl)
remaining question, whether it is such within the meaning of s. 38 of
the statute. Why should it not be so? It is contended that the
section has reference only to such instruments as are mentioned in the
earlier sections of the statute, and that s. 38 applies only to those
forged instruments which are punishable as felonies. Such a construc-
tion is, I think, erroneous. There is no definition of the word " instru-
ment " in the statute to fetter us in giving to it the ordinary and
general interpretation. It was clearly the intention of the legislature
by s. 38 to create a new offence. If it had been the intention of the
legislature to limit the operation of the section to felonious forgeries,
how easy it would have been to use appropriate language for that
purpose. So far from doing this, the legislature, having used the
term " instrument " in a vai'iety of senses all falling within one or
another of the definitions I have above referred to, proceeds, in s. 38,
to use language which read in its ordinary sense comprises every
descripflon of loritten instrument
AViLLS, J The essence of this section appears to be, that where
property has been obtained not merely by false pretences, but by false
pretences into which foi'gery or its equivalent enters, the offence shall
be constituted a felony, and may involve much severer punishment than
either the mere obtaining of money by false pretences or a mere forgery
at common law.
I cannot see anything in the nature of such a section which should
make it necessary or desirable to restrict the apphcation of the woiti
"instrument " to writings of a formal character, and I think it is meant
to include writings of every description if false and known to be false
by the person who makes use of them for the purpose indicated....
No violence is done by this construction to the use of the word
" instrument." In Cougan's Case"^ Buller, J., defined forgeiy at common
law as the "making of a, false instrument with intent to deceive."
Blackstone, J., defines forgery as the "fraudulent making or alteration
of a writing to the prejudice of another man's right": 4 Comm. 247.
1 [1892] 2 Q. B. 484; [1893] 1 Q. B. 256.
2 1 Lea. 449; 2 East, P.C, c. 19, s. 43, p. 948.
184 Select Cases on Criminal Law. [part ii.
It is plain that in these detinitions "instrument" and "writinir" are
synonymous. East, himself a writer of considerable authority, defines
forgery in one passage as " a false making — a making malo animo of
any written instrument for the purpose of fraud and deceit " (2 Pleas
of the Crown, 852) ; and in another paragraph as " the counterfeiting
of any toriting with a fraudulent intent whereby another may be preju-
diced " {ih. 861). It is obvious that the writer in these passages treats
"instruments" and '' writings " as for the present purpose synonymous.
For these reasons I am clear that the conviction must be affirmed.
I think further that, even if the true construction of the wdrd
"instrument " required a more restricted meaning, the telegram in the
present case would fall within it. It was a writing which, if accepted
and acted upon, would establish a business relation and lead directly to
business dealings with another person. It is true that the dealings
were of such a nature that they led to no legal rights, and could not be
made the foundation of an action ; but they were not forbidden by law,
and in that sense and to that extent were legitimate. A post office
telegram is issued by a public department in the course of business, and
in the present case the telegram appears to me to have sufficient
foruiality, both in its origin and in the use to which it was put, to
deserve the name of an "instrument." The only hesitation I have in
saying so is lest it should appear to imply any lingering doubt in my
own mind as to the correctness of the wide meaning I have given
in the principal part of my judgment to the word "instrument." I
have no doubt or hesitation about the matter, and I notice the second
point onl}^ because it was argued before us.
Mathew, J., concuired.
[But Lord Kussell of Killowen, C.J., and Vaughan Williams, J.,
whilst concurring iu the opinion that the defendant's act was a forgery
at common law, entertained some doubt as to whetlier s. 38 of 24 and
2.5 Vict. c. 98 could be applied to any forgeries except those whicli had
been made lelouies in the preceding sections of that statute.]
REGINA V. GLOSS.
Crown Case Reserved. 1858. Deahsly and Bell 460.
[Indictment at the Central Criminal Court of a picture-dealer for
procuring and selling a copy of one of the pictures of the artist John
Linnell, on which copy "was unlawfully painted and forged the name
«ECT. IX.] Regina v. CI088.
18',
of John Linnell." The prisoner was acquitted on the fiisL c(juiit, ss hich
was for a verbal false pretence which the purchaser was found not to
have relied on; but convicted on the second count, which was for
a common-law cheat, and on the third count, which was for a iheut by
forgery. His counsel objected, in arrest of judgment, tliat neither
count disclosed sufficient circumstances to constitute the essentials of
an indictable offence.]
Mclntjre, for prisoner. To falsely pretend that a gun was made by
Manton would be no offence at common law ; and no case has gone the
length of holding that to stamp the name of Mjuiton on ;i gim would
be forgery.
Ckompton, J. That would be forgery of a trade-mark, and not of
a name.
CocKBURN, C.J. Stamping a name on a gun would not be a
writing, it would be the imitation of a mark, not of a signature.
Mclntyre. The name put by a painter in the corner of a picture is
not his signature. It is only a mark to show that the picture was
painted by him. Any arbitrary sign or figure might be used for the
same purpose instead of the name; it is a part of the painting, and
every faithful copy would contain it
Metcalfe, for the Crown. A false certificate in writing is the
subject of an indictment at common law; Riijuia v. TusJmck (1 Deni-
son 492). I therefore contend that where, as here, the name of the
artist is painted on the picture it is in the nature of a certificate, and
tlie fact that the signature is on canvas, instead of being on a separate
piece of paper, does not render the offence less indictable.
Williams, J. i>ut it is consistent with all the allegations that the
prisoner may have sold the picture without calling attention to the
signature.
Metcalfe. The forging the name on a picture is in fact a forgery
of the picture.
CocKBURN, C.J. If you go beyond writing where are you to stop ?
Can sculpture be the subject of forgery ?...
CocKBURN, C.J....As to the third count we are aU of opinion that
there was no forgery. A forgery must be of some document or writing,
and this was merely in the nature of a mark put upon the painting
with a view of identifying it, and was no more than if the painter put
any other arbitrary mark as a recognition of the picture being his.
As to the second count, we have carefully examined the authorities,
and the result is we think if a person, in the course of his trade openly
and publicly carried on, were to put a false mark or token upon
an article, so as to pass it off as a genuine one when in fact it was only
186 Select Cdses on Criminal Law. [part ii.
a sjiurious one, and the article was sold and money obtained by means
of that false mark or token, that would be a cheat at common law.
As. fur instance, in the case put by way of e.xample during the argu-
ment, if a man sold a gun with the mark of a particular manufacturer
upon it, so as to make it appear like the genuine production of the
manufacturer, that would be a false mark or token ; and the party
would be guilty of a cheat, and therefore liable to punishment if the
inilictment were fairly framed so as to meet the case ; and therefore,
upon the second count of this indictment, the prisoner would have
been liable to have been convicted if that count had been properlv
framed. But "we think that count is faulty in this respect, that,
although it sets out the false token, it does not sufficiently show that it
was by means of such false token the defendant was enabled to pass
off the picture and obtain the money. The conviction, therefore, can-
not be sustained.
REGINA V. SMITH.
Crowx Case Reserved. 1858. Dkaksly and Bell 566.
[The prisoner was indicted at the Central Criminal Cuurt for
forging certain documents, and with uttering them knowing them
to be forged. It appeared that the prosecutor was in the habit of
selling Baking Powders in packets, wrapped up in printed papers.
The prisoner had 10,000 labels printed as nearly as possible like those
used by the prosecutor (Borwick), except that the latter's signature
was omitted. The jury found that the labels so far resembled those
used by Borwick as to deceive persons of ordinary observation, and
make them believe them to be Borwiek's labels, and that they were
made and uttered by him with intent to defraud the difierent parties
by so deceiving them. It was oVjjected on the part of the prisoner
that the making or uttering such documents did not constitute forgery;
and upon this question a case was stated by the Recorder of London.]
Mclntyre, for the prisoner. ... A printed wrapper like this is not
a document and is not the subject of forgery at coininon law....
Pollock, C.B. Suppose a man opened a shop and painted it so
as exactly to resemble his neighbour's, would that be forgery ?
Mclntyre. No. The case of Regiioa v. Toshack (1 Denison 492)
will perhaps be relied on by the other side. It was there held that
a false certificate in writing of the good conduct of a seaman was the
suliject of an indictment at common law. But here there was no false
SECT. IX.] Regina v. Sni/'f/i. 187
certificate; and placing the powrlor widiiu ihcso wrappers was nu
more than asserting that the powder was manufactured l)y liorwick.
Hudilleston, Q.C., for th(; prosecution. The labels... are fal.se docu-
ments made and uttered by the prisoner with intent to defraud, and
the prisoner is properly convicted of forgery. A printed doriini.siit
may be the subject of forgery as well as a written one.
Pollock, C.B. It is elevating a wrapper of this kind very much to
call it a document or instrument.
Httddleston, Q.C. These labels are made to resemble Borwick's
labels. ...The wrapper in this case identifies the powder as having been
manufactured by Borwick, and is as it were a certificate of the
character of the article enclosed. The certificates in Regina v, Toshack
(1 Den. 492), and Regina v. Shariti.au (Dearsley 285), certified that
a man had done certain things. Here the wrapper is in efifect a
certificate that Borwick had put his powder in the packet.
Pollock, C.B. We are all of opinion tli;it this conviction is bad.
The defendant may have been guilty of obtaining money by false
pretences ; of that there can be no doubt : but the real offence here
was the inclosing of the false powder in the false wrapper. The
issuing of this wrapper without the stuff within it would be no oflTence.
In the printing of these wi-appers there is no forgery; nor could the
man who printed them be indicted. The real offence is the issuing
them with the fraudulent matter in them. I waited in vain to hear
Mr Huddleston shew that these wrappers came within the principle of
documents which might be the subject of forgery at common law.
Speaking for myself, I doubt very much whetlier these papers are
within that principle. They are merely wrappers, and in their present
shape I doubt whether they are anything like a document or instru-
ment which is the subject of forgery at common law. To say that
they belong to that class of instruments seems to me to be confounding
things together as alike which are essentially different. It might be
as well said, that if one tradesman used brown paper for his wrappers,
and another tradesman had his brown paper wrappers made in the
same way, he could be accused of forging the brown paper.
Bramwbll, B. I think that this was not a foi-gery. Forgery
supposes the possibility of a genuine document, and that the false
document is not so good as the genuine document, and that the one is
not so efficacious for all purposes as the other. In the present case
one of these documents is as good as tlie other — the one asserts wliat
the other does — the one is as true as the other, but one gets im-
properly used.
Conviction quashed.
188 Select Cases on Criminal Law. [part ii.
CHAFrER II. The Forging.
\It may be forjery even merely to antedate a writing."^
THE QUEEN v. WILLIAM RITSON AND
SAMUEL RITSON.
Crown Case Reserved. 1SG9. L.R. 1 C.C.R. 200.
Case stated by Hayes, J, :
The prisoners were indicted at the last Manchester Assizes under
24 and 25 Vict. c. 98, s. 20, for forging a deed with intent to defraud
J. Gardner.
W. liitson was the father of S. Ritson. He had been entitled to
certain land which had been conveyed to him in fee, and he had
borrowed of the prosecutor J. Gardner, on the security of this land,
more than .£730, for which he had given on the 10th of Jauuaiy,
1868, an equitable mortgage by written agreement and deposit of
title deeds.
On the 5th of May, 1868, W. Ritson executed a deed of assign-
ment under the Bankruptcy Act, 1861, conveying aU his real and
personal estate to a trustee for the benefit of creditors; and on the
7th of May, 1868, by deed between the trustee and W. Ritson and the
prosecutor, reciting amongst other things, the deed of assignment and
the mortgage, and that the money due on the mortgage was in excess
of the value of the land, the trustee and W. Ritson conveyed the land
and all the estate, claim, &c., of the trustee and W. Ritson therein, to
the prosecutor, his heirs and assigns, for ever. After the execution of
this conveyance the prosecutor entered into possession of the land.
Subsequently S. Ritson claimed title to the land, and commenced an
action of trespass against the prosecutor. The prosecutor then saw the
attorney for S, Ritson, who produced the deed charged as a forged
deed, and the prosecutor commenced this prosecution against W. and
S. Ritson.
This deed was dated the 12th of March, 1808, the date being
before W. Ritson's deed of assignment and the conveyance to the
prosecutor, and purpoitcd to be made between W. Ritson of the one
part and S. Ritson of the other part. It recited the original convey-
ance in fee to W. Ritson, and that W. Ritson had agreed with
S. Ritson for a lease to him of part of the land at a yearly rent, and
then professed to demise to S. Ritson a large part of the frontage and
most valuable part of the land conveyed to the prosecutor as mentioned
above, for the term of 'J'J9 years from the 25th of March then in.slant.
.SECT. IX.] The Qiveen v. William Ritson and Samuel n'tts„n. 189
The deed contained no notice of any title, leijal or equitable, of tlio
prosecutor, and contained the usual covenants between a lessor and
lessee. It was executed by both W. and S. liitson.
The case then stated evidence which shewed that the deed had in
fact been executed after the assignment to W. Ritson's creditors and
after the conveyance to the prosecutor, and that the deed had Ijeen
fraudulently antedated by W. and S. Ritson for the purpose of over-
reaching the conveyance to the prosecutor.
The counsel for the prisoners contended that the deed could not
be a forgery, as it was really executed by the parties between whom it
purported to be made. The learned Judge told the jury that if the
alleged lease was executed after the conveyance to the prosecutor, and
antedated with the purpose of defrauding him, it would be a forgery.
Tlie jury found both the prisoners guilty.
The question was, whether the prisoners were properly convicted of
forgery under the circumstances.
The case was argued before Kelly, C.B., Martin, B., Blackburn,
Lush, and Brett, J J.
Torr, for the prisoners. The deed in this case was not forged,
because it was really made between and executed by W. and S.
Ritson, the persons by whom it purported to be executed, and
between whom it purported to have been made. The date of the
deed was false, but a false statement in a deed will not render the
deed a forgery. If this deed were held to be a forgery, then any
instrument containing a false statement made fraudulently would be
forged.
[Black BUR?f, J. This is not merely a deed containing a false
statement, but it is a false deed.]
There is no modern case to shew that a deed like this is a forgery.
To constitute a forgery, there must be either, first, a false name, or,
secondly, an alteration of another's deed, or, thirdly, an alteration of
one's own deed. There is no modern authority to include any other
kind of forgery. Salway v. Wale^ appears an authority against the
prisoners, but that was a decision upon 5 Eliz. c. 1-1, which is not
worded in the same way as 24 and 25 Vict. c. 98, s. 20. The defini-
tions of the text-writers, which may seem to include a case like the
present, are not in themselves authorities. The decisions on which the
definitions purport to be based, and not the definitions themselves, are
the authorities which must be looked at.
Addison, for the prosecution. The deed in this case is a forgery
because it is a false deed fraudulently made. Although there ia
1 Moore, 655.
190 JSelect Cases on Criminal Latv. [part ii.
no recent case where similar facts have been held to constitute a
forgery, yet such a state of facts comes within the definitions of forgery
given by the text-books: Russell, vol. ii. p. 709, 4th ed. ; Hawkins,
P.C. bk. i. cap. 20, p. 263, 8th ed.; 3 lust. 169; Bacon's Abr., tit.
Forgery, A.; Comyns' Dig., tit. Forgery, A.I. Saliva i/ v. Wale^ is also
an authority for the conviction. The essence of forgery is the false-
making of an instrument : Jiex v. Parkes'-.
Blackburn, J. By 24 and 25 Vict. c. 98, s. 20, it is felony to
"forge" any deed with intent to defraud. The material word in
this section is "forge." There is no definition of "forge" in the
statute, and we must therefore inquire what is the meaning of the
word. The definition in Comyns (Dig., tit. Forgery, A.I.) is "forgery
is where a man fraudulently writes or publishes a false deed or
writing to the prejudice of the right of anotlier" — not making an
instrument containing that which is false, which, I agree with
Mr Torr, would not be forgery, but making an instrument which
purports to be that which it is not. Bacon's Abr. (tit. Forgery, A.),
which, it is well known, w^as compiled from the MS. of Chief Baron
Gilbert, explains forgery thus: "The notion of forgery doth not so
much consist in the counterfeiting of a man's hand and seal... but in
the endeavouring to give an appearance of truth to a mere deceit and
falsity, and either to impose that upon the world as the solemn act of
another which he is in no way privy to, or at least to make a man's
own act appear to have been done at a time when it was not done, and
by force of such a falsity to give it an operation which in truth and
justice it ought not to have." The material words, as applicable to
the facts of the present case, are "to make a man's own act appear to
have been done at a time when it was not done." When an instru-
ment professes to be executed at a date different from that at which it
really was executed, and the false date is material to the operation of
the deed, if the false date is inserted knowingly and with a fraudulent
intent, it is a forgery at common law.
Ordinarily the date of a deed is not material, but it is here shewn
by extrinsic evidence that the date of the deed was material. Unless
the deed had been executed before the 5th of May, it could not have
conveyed any estate in the land in question. The date was of the
essence of the deed, and as a false date was inserted with a fraudulent
intent, the deed was a false deed, within the definition in Bacon's
Abridgement. This is a sufficient authority.
The other three Judges concurred.
1 Moore, 655. * 2 Leach, at p. 785.
SECT. IX.] The Queen v. Bateman.
191
[Or for an agent merely to exceed his aulhority in maku,<j a ,rn(,nj.\
THE QUEEN v. EATEMAN.
Central Criminal Court. 1845. 1 Qq^ jgg
The prisoner was indicted for forgery under the following circum-
stances. He was clerk to Messrs Sewell and Cross, and had been in
the habit of getting blank cheques signed by the firm, and filling in the
amount himself, to meet demands upon them. It was proved that on
a certain day he brought the cheque in question to one of the partners,
and requested him to sign it, stating at the time that he had been told
by Mr Sewell to pay certain rent which was due from Mr Sewell to
a Mr Gardiner, but that the amount was not ascertained. The cheque,
when completed, was as follows : —
"No. 7476. "London, Dec. 18th, 1^44.
"London and Westminster Bank. Pay to 1238 or bearer £l(lO
"Sewell and Co."
At the bottom was written "pay in notes": but neither this
memorandum, nor the date, nor the amount, was filled in when it was
signed. The words "and Co." were across tlie cheque originally. The
name of the firm was written by the partner above mentioned, who
stated that he never gave the prisoner any authority to receive cash
for the cheque, or to appropriate it otherwise than for the rent.
Clarkson, for the prosecution, opened the case as clearly one of
forgery. That where a party had authority to fill up cheques under
certain circumstances, and with certain limitations, and he chose to
do so for purposes of his own, and quite beside such authority (which
he was in a condition to prove was the case in the present instance),
the ofience was undoubtedly committed.
Before the evidence was gone into, Ballantine and Wilkim, for the
prisoner, suggested that as there would be no question made as to the
facts, it might be convenient at once to discuss the law of the case.
Erlb, J. We cannot in a criminal case take any thing as admitted,
and tlierefore the evidence must be gone into.
In addition to the testimony given by the partner above referred to,
it was then proved that the amount of the chetjue had been received by
the prisoner : and the notes were traced to the possession of parties to
whom the prisoner had paid them on account of certain gaming debts
of his own. It was admitted by the prosecution that the rent due to
Mr Gardiner was much larger in amount than the sum for which the
cheque was filled up. Neither Mr Sewell nor Mr Gardiner was called.
192 Select Cases on Criminal Law, [part ii.
Ballantine, on the case for the prosecution being closed, contended
that there was no evidence to sustain a charge of forgery. How could
a party be charged with forging an instrument which he had a lawful
authority to make? Admitting that such authority was limited, still
in this instance it had not been exercised to its full extent ; inasmuch
as the amount actually jSIled in was less than he was permitted to
insert. Of what part then of the cheque could the forgery be asserted?
It is true that there might be a subsequent misappropriation of the
proceeds, but that could not be adduced in support of the present
charge, although it might be available under a different one. It is
necessary to look to the precise period when the cheque was completed,
and if the prisoner had authority at that time to act as he did, no
subsequent conduct could make that a forgery which was not one
in the first instance. Again, the evidence of Mr Sewell and of
Mr Gardiner is absolutely essential to the support of any charge at alL
We know nothing of what were Mr Sewell's directions to the prisoner,
except as far as prisoner stated them to one member of the firm, and
that statement is not at all inconsistent with his having implicitly
obeyed his instructions in appropriating the money as he has done.
Neither can the jury be satisfied in Mr Gardiner's absence that the
rent has not in fact been paid.
Krle, J., to Mr Clarkson. Without now expressing an opinion
upon this point, I will ask you whether you are content to rest the case
where it is, without calling these gentlemen ?
Clarkson. I have sent for them, my lord, and expect them here
every moment.
Erle, J. I will wait then a short time for the chance of their
arrival.
The witnesses, however, did not arrive.
Erle, J., observed. I think the prisoner must be acquitted. It is
clear that he had authority to fill up the cheque in some way or
another ; that was an authority derived from Mr Sewell, and there is
no evidence to shew that his directions were not to get a blank cheque
filled up for £100 and appropriate it as this has been. Moreover, it
should have been .shewn that Mr Gardiner did not authorize him to
receive the money. He might, for anything that appears in evidence,
have gone to that gentleman, have tendered him the cheque, and got it
subsequently cashed by his directions. On this ground, therefore, the
charge fails. But as some doubt appears to exist as to the law
in cases of this sort, it is my duty to state, that I look upon the
principle as laid down by the prosecution to be perfectly correct. If
a cheque is given to a [>erson with a certain authority, the agent is con-
SECT. IX.] The Queen v. Bateman. lOn
fined strictly within the limits of that authority, and if he choose to
alter it, the crime of forgery is committed. If the blauk cheque wuh
delivered to him with a limited authority to complete it, and he tilled it
up with an amount ditlerent from the one he was directed to insert
(or if, after the authority was at end, he filled it up with any amount
whatever), that too would be clearly forgery.
Pattesox, J. I quite agree with my learned brother, that if the
prisoner filled up the cheque with a different amount, and for diflerent
purposes than those which his authority warranted, the crime of forgery
would be undoubtedly made out. [Cf. Key. v, Wilson, p. :209 iiij'ra.]
[Editor's Note. Yet though a duly appointed agent mnj thus commit forgery
by making, in his principal's name, a writing different from that which he had
authority to make, it was at common law no forgery for a man fraudulently to sign
a writing as the (pretended) agent of another, though doing so without any
authority from the supposed principal; for here the signature itself is genuine,
though an untrue representation is made about it. {See Beg. v. White, 1 Denison
208.) But s. 24 of the Forgery Act 1861 now renders it a felony, punishable
witb penal servitude for fourteen years, to make mercantile instruments in another
person's name without his authority. Even apart from this Statute, the false
representation, though not a Forgery, would be an indictable False Pretence.]
[Or to add, to the name of one of the parties to the writing, the address of
a different person oj" the same name.^
THE QUEEN v. BLENKINSOP.
Crown Case Reserved. 1847. 2 Carrington and Kirwan 531.
The prisoner was tried at York, before Mr Justice Coleridge, for. . , .
uttering a forged bill, which was set out thus : —
"Leeds, October L'2nd, 1847.
«'No . £148 7s. M.
" Three months aft* date pay to myself, or order, the sum of one
hundred and forty-eight pounds, seven shillings, and ninepence. Value
received.
" Alexander Blenkinsop.
" To Mr W. Wilkinson, Halifax,
" Payable London."
It appeared that the prisoner had carried on business as a chemical
manufacturer, and had two establishments, one at Leeds and the other
K. 13
194 Select Cases on Criminal Law. [part ii.
at Huddersfield. He had in his eniploj'^ at Leeds a mau named William
AViLkinson, a mechanic, at weekly wages of IQs., and without any other
property. This man was called, and he proved the acceptance to be of
his handwriting, so far as the mere name. He stated that he wrote
that on a stamped paper, blank except some printed parts of a bill of
exchange, among which was the place of date — "Leeds"; that he
wrote it at the prisoner's house at Leeds. The prisoner having called
him out of the yard, said to him : " I have some money to send up this
morning ; there is no one about ; you'll do as well as anyone else.
I want you to write your name here ; I'll fill it up." This witness said
that he knew what a bill of exchange was ; that he left his master to
fill it up as he pleased ; and that he was at liberty to make it payable
at a banker's in London, if he liked, or anywhere else ; that he himself
had never lived at Halifax, nor received authority from anyone there
to accept a bill for him. And it was admitted that, at the time of the
acceptance being thus written, the prisoner intended to make the
drawing to be on a Mr William Wilkinson, of Halifax, and that there
were persons of that name resident there, from none of whom any
authority had been received. It was proved that, when uttered by the
prisoner, the bill was drawn as it appears above set out, and accepted ;
and that over the acceptance were the words — " Payable at Smith,
Payne, & Co., bankers, London."
Overend, for the prisoner, contended that neither the bill nor the
acceptance was forged or altered ; and relied on Webb's case '.
Coleridge, J., overruled the objection ; but reserved the point for
the opinion of the fifteen Judges.
Montagu Chambers, for the prisoner. ...This is no forgeiy of the bill
by alteration ; for if I get the signature, in London, of A. B., and then
address it to " A. B. of Liverpool," a non-existent person, that has been
held to be no forgery. For in Jiex v. Webb^ a bill of exchange was
addressed "To Mr Thomas Bow^den, baize manufacturer, Romford,
Essex" ; and the prisoner uttered this bill, with the acceptance thereon
made by Thomas Bowden, who did not live at Romford, and was not
a baize manufacturer. It was held, that the adopting a false descrip-
tion and addition where a false name was not assumed, and where
there was no person answering the description or addition, was not
a forgery.
Creswell, J. There was a case at the Old Bailey, where, on the
trial of a person for forging a bill of exchange, purporting to be drawn
by Henry Bush, of Bristol, a witness named Henry Bush, not of
1 B. uud 11. •105.
SECT. IX.] The Queen v. Blenhmo,,. 105
Bristol, came and stated that he drew the bill. It appeared that tliero
was a Henry Bush of Bristol ; and Baron Rolfe (before whom the trial
was) directed an indictment to be preferred against the witness, who
was tried before me and convicted.
Alderson, B. Suppose, in the lifetime of the late Mr Coutts,
a bill had been drawn upon " Thomas Coutts, banker," and accepted by
a Thomas Coutts out of the streets?
**********
The learned Judges present held the conviction right; and that
putting an address to the drawee's name, while the bill was in course of
completion, with intent to make the acceptance appear to be that of a
different existing j^erson, was a forgery.
[Or to make a tvriting in the name of an imaginary person^
BEX V. LEWIS.
Old Bailey. 1754, Foster's Crown Law 116.
Anne Lewis was indicted under 2 Geo. IL c. 25 for feloniously
uttering and publishing a certain false, forged and counterfeit deed,
purporting to be a power of attorney from Elizabeth Tingle (adminis-
tratrix of her father Richai'd Tingle deceased, late a marine belonging
to his Majesty's ship, the Hector), to Frederick Predham of Barnard's-
inn, gentleman, impowering the said Predham to demand and receive
of the commissioners of his Majesty's navy, or whom else it may
concern, all prize-money due unto her ; with intention to defraud
Edmund Mason ; the said Anne knowing the said deed to be false,
forged and counterfeit.
The prisoner was convicted upon very full e'V'idence. But it appear-
ing upon the trial that Bichard Tingle, to whom administration h;ul
been taken in the name of Elizabeth his supposed daughter, died child-
less and unmarried, a doubt was conceived, whether, since there never
was such person in rerum naturd as Elizabeth the daughter of Kichard,
the counterfeiting a letter of attorney in that name and under that
description be a forgery within the statute : and upon this duubt
judgment was respited.
13—2
196 SeUct Casea on Criminal Law. [part ii.
This doubt arose from what Chief- Justice Coke saith, speaking
of forgery, in his 3 Inst. 169. "This," saith he, "is properly taken
when the act is done in the name of another person."
From whence it was inferred, that, tliere never having been such
person as Elizabeth Tingle the daughter of Richard, the counterfeiting
a deed purporting to be executed by such person, cannot come within
this definition of the offence ; it is not an act done in the name of
another person.
It was admitted by Sir Martin Wright who raised this doubt, that
an alteration made in a deed really executed, in order to give it an
operation different from the meaning of parties, if it be done mala fide
aiid with an intention to defraud, will come within the legal notion of
forgery; as antedating a deed of conveyance in order to overreach
a former deed; an alteration in the name and description of the
premises conveyed, or in the sum of money secured by bond or other
deed, or in the estate intended to pass. These alterations and others of
the like nature, made to the prejudice of a third person, and with
a fraudulent intention, come within the Act on which the present
prosecution is founded ; in like manner as they have been holden
to be within that of the 5th of Eliz. For in these instances there
was a false-making, which is one of the words descriptive of the
offence used in both the statutes ; that is, the true deed was falsified ;
"but still," said he, "tliere was a real deed on which the forgery did
operate."
So in the case of a deed or instrument totally forged, it was said by
the same learned judge, that it must purport to be the deed of some
person really existing, or that hath existed, whose deed by possibility
might have been forged ; otherwise it cannot be, according to Coke's
description of the offence, "An act done in the name of another
person."
But at a meeting of the Judges a few days after Trinity term 1754,
at Lord Chief Justice Ryder's chambers, ele\en Judges being present,
ten of them were very clearly of opinion, that the prisoners case is
within the letter and meaning of the Act ; and in that opinion Chief
Justice Willes, who was absent, signified his concurrence by letter
communicated at that meeting.
In sapport of this opinion it was argued, that Lord Coke's descrip-
tion of the offence on which the doubt is grounded, is apparently too
narrow. It expresseth the most obvious meaning of the word, and
taketh in that species of forgery which is most commonly practised;
but there are other species of forgery which will not come within the
letter of that description ; the case of antedating, and the other cases
SECT. IX.] Rex V. Lewis.
VXi
which have been mentioned, and are admitted to come within the l.-;,'al
notion of forgery, are of that kind.
It may be said, Cni bono ; to what purpose will it he to forge dc^ds
or other instruments in the names of persons who never existed ? The
naked state of the present case answereth that question. letters of
administration to Richard Tingle had been taken out in the name of
Elizabeth his supposed daughter ; by these letters an existence in show
and appearance is given to Elizabeth the daughter; and this was
effected by a gross imposition on the Court, and by downright perjury.
So that here is a title in show and appearance established by fraud and
perjury in a fictitious person: this title is transferred in show and
appearance by the deed stated in the case : and all this is done with
intent to defraud an innocent person. Which clearly bringeth the
prisoner's case within the letter and mischief of the Act. At the next
Sessions at the Old Bailey (July ITth, 1754) the prisoner had judg-
ment of death.
\0r even to write your own signature that it may he taken for
that of another person of the same name.^
MEAD V. YOUNG.
King's Bench. 1790. 4 Durnford and East 28.
This was an action brought by the indorsee of a bill of exchange
for £90 against the acceptor. The bill was drawn at Dunkirk by
Christian, on the defendant in London, payable " to Henry Davis, or
order"; and having been put into the foreign mail, inclosed in a letter
from Christian, it got into the hands of another Henry Davis than the
one in whose favour it was drawn. The defendant accepted the bill,
and when Davis desired the plaintiff to discount it, the latter dis-
counted it, not knowing the H. Davis from whom he took it. There
was no ground to impute any fraud to the plaintiff. On the trial
before Lord Kenyon, after the plaintiff had proved the defendant's
handwriting and the indorsement by Davis, the defendant offered
evidence to shew that the H. Davis, who indorsed to the plaintiff, was
not the real H. Davis in whose favour the bill was drawn. But, Lord
Kenyon being of opinion that such evidence was inadmissible, the
198 Select Cases on Criminal Law. [part ii.
plaintiff recovered a verdict. A rule had been obtained to shew
cause why a new trial should not be granted on this misdirection.
Fiygott, in support of the rule. ...There is also an objection to tlie
plaintiff's recovery, because he claims through a forgery. For the
Henry Davis who received the bill, inclosed in a letter from Christian,
must liave known that it was not intended for him. And the circum-
stance of his bearing the same name with the payee would be no
defence to him on a prosecution for forgery; since he put a false
signature to an instrument with intent to defraud.
AsHHURST, J. In order to derive a legal title to a bill of exchange,
it is necessary to prove the handwriting of the payee ; and therefore
though the bill may come by mistake into the hands of another person,
even of the same name with the payee, yet his indorsement will not
confer a title. Such an indorsement, if made with the knowledge that
he is not the person to whom the bill was made payable, is in my
opinion a forgery ; and no title can be derived through the medium of
a fraud or forgery
BuLLER, J. It is clear that the indorsement was not made by the
same Henry Davis to whom the bill was made payable ; and no
indorsement by any other person will give any title whatever I have
no difficulty in saying that this Henry Davis, knowing that the bill
was not intended for him, was guilty of a forgery. For the circum-
stance of his bearing the same name with the payee cannot vary this
case, since he was not the same j)erson.
Grose, J That this was a forgery cannot be doubted, if we
consider the definition of it; which is "the false making of any instru-
ment, with intent to defraud." It makes no difference whether the
person making this false indorsement were or were not of the same
name with the payee; since he added the signature of H. Davis, with a
view to defraud, and knowing that he was not the person for whom
the bill was intended.
SECT. IX.] The Queen v. Martin. 199
\But not merely to adopt, as a signature for yourself,
an assumed name.^
THE QUEEN v. MARTIN.
Crown Case Reservkd. 1879. L.R. .5 Q.B.I). .34.
Case reserved by Cockburn, C.J.
The prisoner, Robert Martin, was convicted before nie at the late
Assizes held at Maidstone, on an indictment which charged hiin in one
count with having forged, in another, with having uttered, a forged
order for the sum of ,£32, with intent to defraud.
The prosecutor, George Lee, is a horse dealer at Ashford, in Kent.
The prisoner Martin was well known to the prosecutor.... The prosecutor
agreed to sell, and the prisoner to buy, a pony and carriage for £32.
The prisoner proposing to give his cheque for the amount, both
parties went into an adjoining inn, in order that the cheque might
be there drawn. The prisoner then produced a printed form of
cheque of the bank of Messrs Wigan and Co. This he filled up, in the
presence of the prosecutor, with the name of the latter as payee,
signed it in the name of William Martin, his name being Robert, and
delivered it to the prosecutor, who put it in his pocket without
further looking at it, or observing in what name it was signed ; after
which he proceeded to give possession of the pony and carriage to the
prisoner On the cheque being presented at Messrs Wigan's bank,
payment was refused, on the ground that the signature was not that
of any customer of the bank. The prisoner had been a customer of
the bank, and had had an account there in his proper name of Robert
]\Iartin ; but. . .the account was then closed. He had ceased to all intents
and purposes to be a customer of the bank, and must have been fully
aware that a cheque drawn by him on the bank would certainly be
dishonoured. Under the circumstances there can be no doubt that the
prisoner had been guilty of the ofience of obtaining the prosecutor's
goods by false pretences'. But the indictment being for forgery of the
cheque, and it appearing doubtful to me whether the charge of forgery
could upon the facts proved be upheld, I reserved the case.
The prisoner in drawing this cheque and delivering it to the
prosecutor did not do so in the name of, or as representing any other
person, real or fictitious. The cheque was drawn and uttered as his
own, and it was so received by the prosecutor, to whom the prisoner
1 See Rerjina v. llazdton, infra, p. 33b.
200 Select Cases on Criminal Law. [part ii.
was perfectly well known as an acquaintance of twenty years' stand-
in<y, and by whom he was seen to sign it. Tlie prisoner did not obtain
credit with the prosecutor by substituting the Christian name of
William for that of Robert. He would equally have got credit had
he signed his proper name of Robert. The credit was given to the
prisoner himself, not to the name in which the cheque was signed ; the
cheque was taken as that of the individual person who had just been
seen to sign it, not as the clieque of William Martin as distinguished
from Robert Martin, or of any other person than the prisoner. On
the contrary, if the prosecutor, who knew the prisoner's name to be
Robert, had observed that the signature was in the name of William,
he would in all probability have suspected something wrong, and
would have refused to take the cheque.
There was nothing whatever from which the motive of prisoner in
signing a wrong Christian name could be gathered The only motive
which has occurred to my mind as one which might have induced him
to sign a false Christian name is, that he may have thought that by so
doing he might avoid being liable on the cheque when payment had
been, as it was certain to be, refused.
« * * * » o * o w * *
CocKBURN, C.J. The case is concluded by authority. In Dunn's
case' it was agreed by the judges that "in all forgeries the instrument
supposed to be forged must be a false instrument in itself ; and that if
a person give a note entirely as his own, his subscribing 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." Upon authority as well as upon principle, it is
clear that this conviction should be quashed.
Lush, J., Huddlestone, B., Lindley and Hawkins, JJ., concurred.
Conviction quashed.
[False oral representations about a writing cannot amount to a /orgert/.'\
REX V. JONES.
King's Bench. 1779. 1 Douor.AS 300.
[The prisoner had been indicted, as for a fraud, at Essex Assizes,
before Blackstone, J. But as he entertained a doubt whether the
^ 1 Leach 59.
SECT. Tx.] Rex V. Jonofi. 201
offence was not, rather, a forgery, the prisoner was acquitted. At th«!
next Assizes, he was indicted for forgery, before Lord Mansfield, who
thought the case clear'; but, on account of the doubt which Black-
stone, J., had felt, he directed this special verdict.]
This second indictment was made under 15 Geo. II. c. 13, s. 11- for
uttering a certain forged paper writing purporting to be a bank-note,
with intent to defraud James Rayner. The writing was
"No. F946.
"I promise to pay John Wilson, Esq. or bearer Ten Pounds.
London, March 4th, 1776. For self and Company of my
£. Ten. Bank in Engl and. "
" Entered, John Jones."
...The jury found by special verdict that this writing was not
a note filled up by any of the officers of the Bank of England, but was
forged ; that the prisoner, knowing the same, averred it to be " a good
bank-note," and disposed c-f it as such to Rayner, with intent to defraud
him ; and that Rayner, believing it to be a good bank-note, gave the
prisoner the full value of it. And further, that the Bank frequently
pay bank-notes which are filled up by their oflicers and entered in their
books, though they happen not to be signed.
Fielding argued that... from the finding, it appeared that to the
man who received the note, it purported to be a bank-note ; and that,
to constitute a forgery, a similitude is not at all necessary
Lord Mansfield. The representation made by the prisoner to
Rayner, after the note was made, could not alter the purport of the
instrument ; which is what appears. On the face of it, it does not
purport to be a bank-note*. Such false representations might make the
party guilty of a fraud or cheat, they could not make him guilty of
a felony.
[Editor's Note. Sir James Mansfield, C.J., says of this case (in 4 Taunton 303),
"Jones' crime was only that of telling a falsehood."]
^ [Editob's Note.] I.e. for acquittal.
2 [Editor's Note.] This statute made it a capital felony to forge the notes etc.
of the Bank of England.
'■^ [Editor's Note.] I.e. of the Bank of England.
202 Select Cases on Crimhud Lmv. [part ii.
Chapter 3. The Intent.
\In all common law forgeries, and in most statutory ones, an intent to
defraud is necessary.^
REGINA V. HODGSON.
Crown Case Reserved. 1856. Dearsly and Bell 3.
Tlie following case was reserved and stated for the consideration
and decision of the Court of Criminal Appeal by Mr Baron Bramwell,
at the Staffordshire Spring Assizes, 1856.
Henry Hodgson was indicted at common law for forging and utter-
ing a diploma of the College of Surgeons. The indictment was in the
common form.
The College of Surgeons has no power of conferring any degree
or qualification, but before admitting persons to its membership, it
examines them as to their surgical knowledge, and if satisfied therewith,
admits them, and issues a document, called a diploma, which states the
membership. The prisoner had forged one of these diplomas. He
procured one actually issued by the College of Surgeons, erased the
name of the person mentioned in it, and substituted his own ; changed
the date, and made other alterations to make it appear to be a docu-
ment issued by the College to him. He hung it up in his sitting-room,
and on being asked by two other medical practitioners whether he was
qualified, he said he was, and produced this document to prove his
assertion.
When a candidate for an appointment as vaccinating officer, he
stated he had his qualification, and would shew it if the person inquir-
ing (the clerk of the guardians who were to appoint to the office)
would go to his (the prisoner's) gig. He did not, however, then pro-
duce or shew it.
The prisoner was found guilty ; the facts to be taken to be, — that
he forged the document in question, with the general intent to induce
a belief that the document was genuine, and that he was a member of
the College of Surgeons ; and that he shewed it to two persons, with the
particular intent to induce such belief in those persons ; but that he
had no intent in forging, or in the uttering and publishing (assuming
there was one), to commit any particular fraud or specific wrong to
any individual.
I reserved, for the opinion of the Court of Criminal Appeal, the
question whether, on these facts, he ought to have been found guilty on
any of the counts 1
SECT. IX.] Reghia v. Hochisou. 203
Bi/rne, for the prisoner. No offence at common law was committed.
The definition of forgery in 2 Russell on Crimes and Afisd,,niea>,ors,
p. 318, is said to be "the fraudulent making or alteration of a writing
to the prejudice of another man's right" ; and at p. 362 it is said, that
the " fraud and intention to deceive constitute the chief ingredients of
tliis offence." In ord(!r to support the conviction, it must he shewn
tliat the prisoner had a definite object in view in the forgery, and
intended to commit a fraud upon some indivitkial. This case does not
disclose any distinct intention to defraud ; and the jury have negatived
the intention to commit any particular fraud, or to deceive any indi-
vidual. The other side will rely on Reg. v. Tos}iack\ There the
prisoner forged a certificate of the master of a vessel, representing that
the prisoner was an able seaman and had served on board a ctTtain
vessel.
Erle, J. This seems very analogous to forging the certificate in
that case. The prisoner used the diploma in his endeavours to get
appointed to the poor house. If an incompetent man were appointed
to such a situation, in consequence of his appearing to have this qualifi-
cation, a large class of persons might suffer. I do not see any great
distinction between the danger of loss of life at sea through the employ-
ment of an incompetent pilot, and the danger of loss of life on land
through the employment of an incompetent surgeon.
Byrne. The Trinity House certificate of fitness to act as a pilot,
which was the thing forged in Toshack's case, confers a distinct privi-
lege, and is essential to the employment, and is that upon which those
who employ the pilot rely; and in that case an intent to defraud
particular persons was alleged, and proved. Here there is only a
general intent ; and the act is not done by the prisoner for the purpose
of obtaining any particular benefit, but merely to induce the belief
that he was qualified to act as a surgeon. There is an entire absence
of intent to prejudice another person. Suppose a man was to concoct
a pedigree, and hang it up in his room for the purpose of raising his
credit, that would not be a forgery at common law....
Jervis, C.J. One test is this, and it is in your favour. Suppose
this had been an indictment before Lord Campbell's Act^ had passed,
1 1 Den. 492.
2 14 and 15 Vict. c. 100. Section 8 is as follows:— "From and after the coming
of this Act into operation it shall be sufQcient in any indictment for forging,
uttering, offering, disposing of or putting off any instrument whatsoever, or for
obtaining or attempting to obtain any property by false pretences, to allet,'c that
the defendant did the act with intend to defraud without alleging the intent of the
defendant to he to defraud any particular person ; and on the trial of any of the
204 Select Cases on Criminal Law. [part ii.
au intent to defraud some particular person must have been stated — •
who could have been named ? My brother Wightman suggests that the
intent was to defraud the guardians of the poor ; but when the docu-
ment was forged, it was not forged with that intent.
Byrne. No one could have been named as the person whom it was
intended to defraud. There was no intent, at the time when the
certificate was altered, to use it for the purpose of defrauding any
person
Scotland, for the Crown... 14 and 15 Vict. c. 100 not only dispenses
with the necessity of alleging an intention to defraud any particular
person, but also with the necessity of proving it.
Jervis, C.J. Formerly the indictment must either have alleged an
intent to defraud a person named, or have shewn that allegation
unnecessary on account of the public nature of the instrument forged.
Now, the particular person need not be named, but with that exception
the law is not altered. Before the new law, whom should you have
stated in the indictment the prisoner intended to defraud ?
Scotland. Any one of the persons who might be defrauded by the
use of the pretended qualification at the time of the forgery ; one of the
properly qualified practitioners in the immediate neighbourhood, or one
of the persons on whom the defendant attended professionally. If
necessary to allege and prove a particular intent to defraud, it would
be enough to allege any one who might be defrauded. The law infers
that a man intends the ordinary consequences of his act. A man may
be guilty of forging a bill of exchange, though not actuaUy put in
circulation.
Jervis, C.J. I am of opinion that this conviction is wrong. The
recent statute for further improving the administration of criminal
justice' alters and affects the forms of pleadings only, and does not
alter the character of the offence charged. The law as to that is the
same as if the statute had not been passed. This is an indictment for
forgery at common law. I will not stop to consider whether this
is a document of a public nature or not, though I am disposed to think
that it is not a public document ; but whether it is or not, in order to
make out the oftence, there must have been, at the time of the instru-
ment being forged, an intention to defraud some person. Here there
was no such intent at that time, and there was no uttering at the time
when it is said there was an intention to defraud.
offences in this section mentioned, it shall not be necessary to prove an intent on
the part of the defendant to defraud a,ny particular person; but it shall be sufficient
to prove that the defendant did the act charged with an intent to defraud."
» 14 and 15 Vict. c. 100
SECT. IX.] Regina v. Hodf/sou. 205
WiGHTJiAN, J. I am entirely of the same opinion. Before the late
statute it was necessary to allege an intent to defraud some one, and
there must be an intention to do so now. In this case it does not
appear that at the time when the forgery was committed there was an
intention to defraud any one.
* * * * * * ■> c- * i^ *
Conviction quashed.
[Editor's Note. Now, by the Medical Act (21 and 22 Vict. c. 90, s. 40), it is
made a specific offence, punishable, on summary conviction, by a fine not exceeding
£20, falsely to pretend to be a legally recognised medical practitioner.]
\^Hence if prisoner knew that no one could be defrauded, there is no
crlme.^
REGINA V. MARCUS.
York Assizes. 1846. 2 Carrington and Kirwan 356.
The prisoner was indicted for having, on the 2nd of August, 1845,
forged and uttered a deed of transfer of ten shares in the London and
Croydon Railway (setting it out), with intent to defraud the London
and Croydon Railway Company. In other counts the intent was laid
to be to defraud Darnton Lupton, and to defraud William Booth. In
another set of counts, the instrument was described as a deed, but not
set out.
It was opened by Hall, for the prosecution, that the prisoner was a
stock and sharebroker at Leeds, in partnership with Mr John Naylor,
under the firm of Naylor and Marcus, and that Mr Darnton Lupton
had employed the firm of Naylor and Marcus to a considerable extent,
chiefly to buy scrip, and always for ready money; and that in the
month of August, 1845, Mr Lupton went to the counting-house of
Messrs Naylor and Marcus, and looked at his account in their books,
and there found himself debited with a number of London and Croydon
shares, for the purchase of which he had given no authority whatever.
This led to inquiry; and it was ascertained that on the 28th of July, 1845,
the London and Croydon Railway Company had received for registry,
in the usual way, two deeds of transfer of shares, marked A. and B. ;
the deed marked A. purporting to be a deed for the transfer of eighty-
seven shares in that Company from Ellithorpe Robinson to Darnton
Lupton ; the deed marked B. purporting to be a similar deed of transfer
206 Select Cases on Criminal Law. [part ii.
for tliirteen shares from the same Mr Robinson to Mr Lupton, making
in all 100 shares. These two deeds of transfer both purported to be
executed by Mr Lupton, as vendee, and to be attested by the prisoner.
It also would be proved, that, on the 9th of August following, the
London and Croydon Railway Company received seven other deeds of
transfer (marked from C. to I. inclusive), which purported to convey
the whole of these 100 shares in the London and Croydon Railway to .
five different persons ; one of these deeds (marked E.) purporting to
convey ten of these shares to William Booth, — this deed, marked E.,
being the subject of the present indictment. All tliese deeds of
transfer, marked from C. to I. inclusive, purported to be signed and
executed by Mr Darnton Lupton, and his execution of them attested
by the prisoner as the subscribing witness. And all these signatures,
which purported to be signatures of Mr Lupton, would be proved to be
forgeries, and to have been signed by the prisoner in Mr Lupton's
name without his knowledge and without his authority ; and one ques-
tion for the jury would be, the intention to defraud, which was a
necessary ingredient in the crime of forgery. It was not necessary
that the party committing a forgery should contemplate a fraud on any
particular person, as he must be taken to intend the necessary, and
even the possible, consequences of his own act; and on this ground,
a man who forged the name of another to a bill of exchange, though he
himself might fully intend to take upon himself the providing for the
bill when it came to maturity, would be held to intend the defrauding
of the party whose name he so forged. In the present case an intent
to defraud the Company was shewn, as they registered the new share-
holder, and accepted him as a member of their Company on the faith of
the supposed transfer : there was also a fraud on the transferee, who
supposed that he had a transfer from a party who in truth did not
convey anything, and who had no title to convey, and the transferee
also would suppose that the supposed transferror had taken upon him-
self certain liabilities, among others, a covenant for his title to the
shares which purported to be conveyed....
It was proved by Mr Raisbeck, a clerk of Messrs Naylor and
Marcus, that the signature " Darnton Lupton," to the deeds of transfer
marked A. and B., and also to the deeds of transfer marked from C. to
I. inclusive, were all in the prisoner's handwriting, and were not an
imitation of the handwriting of Mr Lupton, and that the attestation of
each of those signatures purported to be the attestation of Mr Marcus,
and was in his handwriting. In his cross-examination this witness
stated, that, in the month of August, 1845, Mr Lupton came to the
counting-house of Messrs Naylor and Marcus, and looked at his account
SRCT. IX.] Regina v. Marcus. 207
in their books, Avhich books were accessible to their clerks, and in
■which all the transactions to which the nine deeds of transfer (A. to 1.)
related, were entered ; and that Mr Lupton said, that these shares were
not his : that there was a profit on them, but that the shares were
certainly not his : that on the witness mentioning this to Mr Marcus,
the latter replied, " If he won't have a profit, I cannot help it."
It was proved by Mr Lupton that he had never authorized
Messrs JSTaylor and Marcus, or either of them, to buy any London and
Croydon shares for him. That he never authorized or knew of the
transfers mentioned in the deeds marked from A. to I., or in any
of those deeds, and never signed any of those deeds, nor ever gave
Mr Marcus, or any other person, any authority to sign any of them for
him. Mr Lupton also stated that he had received a dividend-warrant
from the London and Croydon Railway Company, and had put it into
the fire.
Wilkins, Serjt., for the prisoner. There is, on the face of these
transactions, a total absence of an intention to defraud. It is quite
clear that the prisoner wished to make a good bargain for Mr Lupton,
from whom he had received benefits for which he was grateful ; and the
very mode in Avhich these transactions were treated in the books of
Messrs. Naylor and Marcus, open as they are to every one in the office,
and even to Mr Lupton himself, shewed most clearly that these were
fair bona fide transactions, by which it was not intended to defraud
any one, and by which no one ever was, or ever could be, in fact,
defrauded.
Cresswell, J. If, after hearing my opinion of the law of this case,
Mr Hall wishes the case to go to the jury, I will leave it to them,
reserving for the considei'ation of the Judges the question, whether, on
this evidence, anything has been proved which shews an intent to
defraud in point of law. At present, my view of the case is this : — It
is not required certainly, to constitute in point of law an intent to
defraud, that, in these cases, the party should have present in his mind
an intention to defraud a particular person, if the consequences of his
act would necessarily or possibly be to defraud some person ; but there
must, at all events, be a possibility of some person being defrauded by
the forgeiy ; and there does not seem to be any such possibility in the
present case, either as regards Mr Lui^ton, Mr Booth, or the Company.
With respect to Mr Lupton, the transfers were made to him in conse-
quence of money actually paid, and the person who so procured tlie
transfer got Mr Lupton's name into the list of proprietors in the
Company, so as to entitle him to a dividend in their profits, there being,
so far as appears, no call of which the Company could enforce payment ;
208 Select Cases on Criminal Law. [part ii.
so that Mr Lupton might possibly receive money, but could not, under
any circumstances, be required to pay any. Neither was there any
possibility of the Company being defrauded, as it does not appear that
they had any power to demand any further calls from shareholders ; so
that the substitution of Mr Lupton's credit for that of any other person,
or the substitution of any other person's credit for his could do no
injury to the Company.
Hall. I submit that there might be a fraud on Mr Lupton by the
transfer of shares from him, which, in point of fact, stood in his name
in the books of the Company.
Ceesswell, J. It is merely taking from ~My Lupton something in
which he never claimed any interest ; and the person to whom the
shares are transferred is not prejudiced, inasmuch as he has actually
got the shares for which he has paid his money.
Hall. Might not Mr Lupton be liable on his covenants in the
transfer ? Every person executing a deed conveying property covenants
that he has a right to transfer it.
Ceesswell, J. But the shares actually are transferred. The pur-
chaser has got them. How could the transferror be damnified by such
a covenant, if there is no one in a position to gainsay it? By the
Company's Act the register is the title.
***********
Ceesswell, J., directed an acquittal.
\_A sufficient intent to defraud may exist, even though the forger may
intend to take steps to prevent any actual loss from arising.]
REGINA V. HILL.
Crown Case Reserved. 1837. 2 Moody 30.
The prisoner was tried before Mr Baron Alderson at the Spring
Assizes for the year 1838, at Shrewsbury, for uttering a forged bill of
exchange, knowingly and with intent to defraud one Samuel Minor.
It appeared that the parties to the bill were all fictitious persons ;
and that circumstance was fully known to the prisoner at the time he
uttered it to Samuel Minor; and no doubt existed therefore that the
names were forged, and the bill was uttered by the prisoner with the
full knowledge of that fact. There was, however, reason to contend
that the prisoner, who had filled a respectable station in Ufe as a
SECT. IX.] Regina v. Hill. 209
farmer, and who had endorsed the bill to Minor, intended at the time
he so uttered it to take up and pay the bill when it arrived at maturity.
No such intention however, if it existed, was ever communicated to
Minor.
Philips for the prisoner urged to the jury, that the existence of
such an intention, if they believed it, was gruuud upon which they
might properly negative the intention to defraud Samuel Minor as
charged in the indictment ; and a case was cited to the learned Judge
at the bar (not reported), in which Lord Abinger at the previous
Assizes for Shrewsbury had so decided.
In summing up the case, the learned Baron told the jury (after
consulting Mr Baron Gurney), that if they were satisfied that the
prisoner uttered the bill in payment of a debt due to Samuel Minor
knowing at the time he so uttered it that it was a forgery, and mean-
ing that Samuel Minor should believe it to be genuine, they were
bound to infer that he intended to defraud Samuel Minor.
The prisoner was found guilty, and sentenced to be transported
for life.
The learned Baron thought it proper, from respect to the opinion of
Lord Abinger, to state a case for the opinion of the Judges, in order to
know if the rule laid down by him in his summing up to the jury was
correct.
In Easter term, 1838, Lord Denman, C.J., Tindal, C.J., Lord
Abinger, C.B., Parke, J., Littledale, J., Parke, B., Bolland, B., Bosan-
quet, J., Alderson, B., Patteson, J., Coleridge, J., Coltman, J., met, and
having considered this case, were unanimously of opinion that the
conviction, was riijht
\0r even though the money obtained by the fraud was legally
due to the forger.^
REGINA V. WILSON.
Liverpool Assizes. 1S47. 2 Carrington and Kirwan 527;
1 Denison 284.
The indictment charged that the prisoner did feloniously forge
a certain warrant and order for the payment of money, which said
warrant and order for the payment of money was as follows, tliat is
to say —
u
210 Select Cases on Criminal Laic. [part ii.
"No. Liverpool, Dec. 8th, 1847.
"To the Cashiers of the Liverpool Borough Bank. Pay or
Bearer, Two Hundred and Fifty Pounds.
"£250. John M'Nicoll k Co."
with intent to defraud one John M'Nicoll.
It appeared that the prisoner was the clerk of John M'Nicoll, and
that a bill for £156. 9s. 9o?., for which Mr M'Nicoll was bound to
provide, falling due on the 8th of December, Mr M'Nicoll on that day
signed a blank cheque, with the signature "John M'NicoU & Co.," and
gave it to the prisoner, directing him to fill the cheque up with the
correct amount due on the bill (which was to be ascertained by refer-
ence to the bill book), and the expenses (which would amount to
about ten shillings), and after receiving the amount at the Liverpool
Borough Bank, to pay it over to a Mr Williamson, in order that the bill
might be taken up. Instead of doing so, the prisoner filled up the
cheque with the amount of £250, which sum he immediately received
at the Bank, and without paying any part of the money over to
Mr Wdliamson, retained the whole of it in his own possession, in
satisfaction of a claim for salary which he alleged to be due to him,
and in support of which he gave some evidence, but which his master
on his cross-examination entirely denied to be due. On the day after
the receipt of the money on the cheque, he sent in an account of his
claim, giving his master credit for the sum received on the cheque
Edward James, for prisoner, objected..., that as the signature to the
cheque was the genuine signature of M'Nicoll, and as the prisoner was
entrusted to till it up for a specified sum, the filling it up for a different
sum, though it was a breach of trust, could not be considered as a forgery.
CoLTMAN, J. I think, on the authority of the cases of Eegina v.
Minter Hart, and Regina v. Bateman, that this is a forgery.
E. James further contended, that there was no proof of an intention
to defraud M'Nicoll, but only to obtain from him a sum of money
which the prisoner might honestly have supposed to be due to him.
With reference to this point,
CoLTMAN, J. (in summing up), told the jury if they were satisfied
that the prisoner was authorised only to fill up the cheque for the
amount of the bill and expenses, and to pay the proceeds to William-
son, and that he filled it up for a larger sum, and applied the money
when received to his own purposes, that was evidence for their con-
sideration of an intention to defraud Mr M'Nicoll, as alleged in tho
indictment.
Verdict — Guilty.
SECT. IX.] Regina v. Wilsotu 21 1
CoLTMAN, J., reserved the case for tlie opinion of the fifteen
Judges.
On argument before the Judges, in the following term.
Brett, for prisoner, submitted... that this case was distinguishable
from the cases of Hex v. Minter IlarV and Rejina v. Bateman^, as the
prisoner in the present case had, to some extent, a discretion which
did not exist in the case of Minter Hart, and which was the ground on
which it was in that case held that the prisoner had committed a
forgery. With respect to the intent to defraud, it appeared that the
prisoner had a bona fide claim on the prosecutor for the larger amount;
and if he really had such a claim, or bona fide believed that he had,
that would entirely do away with any imputation of an intent to
defraud.
The case was afterwards considered by the fifteen Judges, who
held the conviction right. They agreed that whether he had a claim
to the alleged amount of salary or not, there was no shadow of authority
thereby given to draw a cheque for a larger sum than his master had
expressly authorised; and the drawing a cheque to a larger amount,
fz-audulently, was forgery.
SECTION X.
LARCENY.
Chapter 1. Taking.
\There must he a Taking, i.e. a change of Possession.^
ANONYMOUS.
King's Bench. 1584. Crompton 35 a.
A man cutteth my girdle privily, my purse hanging thereat, and
the purse and the girdle fall to the ground ; but he did not take them
up (for that he was espied). This is no felony ; for that the thief never
had an actual possession thereof, severed from my j)ei'son. But if he
had holden the purse in his hand, and then cut the girdle (although
it had fallen to the ground, and that he took it up no more), then had
it been felony; [and capital] if above twelve pence in the purse.
1 1 Moody, 486. " Supra, p. I'Jl.
14—2
212 Select Cases on Criminal Law. [part ii.
For then he had it once in his possession. But these secret and privy
takings from my person, are no robbery; for he neither assaulted me,
nor put me in any fear.
And in antient time, the offender only lost his right thumb. See
Fitz. Cor. 434.
[An insufficient (and also fraudulent) Taking.']
THE KING V. SHARPLESS AND GREATRIX
Crown Case Reserved. 1772. Leach 92.
At the Old Bailey in May Session, 1772, John Sharpless and
Samuel Greatrix were convicted before Mr Justice Gould, present
Mr Baron Adams, of stealing six pair of silk stockings, the property of
Owen Hudson. But a doubt arising whether the offence was not
rather a fraud than a felony, the judgment was respited, and the
question referred to the consideration of the Judges upon the follow-
ing case.
Case. On the 14th of March, 1772, Samuel Greatrix, in the
character of servant to John Sharpless, left a note at the shop of
Mr Owen Hudson, a hosier in Bridge-street, Westminster, desiring
that he would send an assortment of silk stockings to his master's
lodgings, at the Red Lamp in Queen-square. The hosier took a variety
of silk stockings according to the direction. Greatrix opened the door
to him, and introduced him into a parlour, where Sharpless was sitting
in a dressing-gown, his hair just dressed, and rather more powder all
over his face than there was any necessity for. Mr Hudson unfolded
his wares, and Sharpless looked out three pair of coloured and three
pair of white silk stockings, the price of which, Mr Hudson told him,
was 14s. a pair. Sharpless then desired Hudson to fetch some silk
pieces for breeches, and some black silk stockings with French clocks.
Hudson hung the six pair of stockings which Sharpless had looked out,
on the back of a chair, and went home for the other goods ; but no
positive agreement had taken place respecting the stockings. During
Hudson's absence, Sharpless and Greatrix decamped with the six pair
of stockings, which were proved to have been afterwards pawned by
Sharpless and one Dunbar (an accomplice in some other transactions of
the same kind for which the prisoners were indicted).
SECT. X.] The King v. Sharpkss and Greatrix. 213
The Judges were of opinion, That the conviction was right. For
the whole of the prisoners' conduct manifested an original and precon-
certed design to obtain a tortious possession of the property ; the
verdict of the jury imports that in their belief the evil intention
preceded the leaving of the goods. But (independent of their verdict)
there does not appear a sutficient delivery to cliange the possesaiou.
[A thief may take even hy the act of the owner's own agent ^
REX V. PITMAN.
Gloucester Assizes. 1826. 2 Carrington and Payne 423.
The prisoner was indicted for stealing a mare, the property of
Jonathan Blanch.
It was proved that the prisoner came to the George Inn, at Sodbury,
on the fair day, and directed the ostler to bring out his horse. The
ostler said he did not know which it was. The prisoner went into the
stable, and pointing to the mare, said — "That is my horse; saddle
him." The ostler did so, and the prisoner tried to mount the mare in
the inn yard ; but from the noise made by some music, the mare would
not stand still. The prisoner then directed the ostler to lead the mare
out of the yard for him to mount. The ostler led the mare out ; and
before the prisoner had time to mount her, a person who knew the
mare came up, and the prisoner was secured.
Watson, for the prisoner, objected that this was not a felonious
taking by the prisoner, as the mare was never in his possession. It all
along remained in the possession of the ostler, who never parted with
it ; and if the mare was never in the possession of the prisoner, he
could not be guilty of stealing it.
Garrow, B. If the prisoner caused the mare to be brought out of
the stable, intending to steal her ; and the animal being disturbed by
the music, the ostler led her out of the yard, for his accommodation
and by his procurement, that is a sufficient taking to constitute a
felony.
The defence was that the prisoner was drunk, and took the mare by
mistake; and the jury, on that ground, found him
Not guilty.
214 Select Cases on Crimhud Law. [part ii.
[You cannot take wliat already is completely in yoiLV possession.^
REX V. HARVEY.
Chelmsford Assizes. 1787. Leach 467.
[Prisoner was indicted for stealing a horse. The prosecutor had
sent his servant with the horse to a fair to sell. The prisoner met the
prosecutor, to whom he was known, and said — "You have a horse to
sell : I think he will suit my purpose, and if you will let me have him
a bargain I will buy him." The prosecutor said — "You shall have the
horse for eight pounds " ; and calling to his servant, he ordered him to
deliver the horse to the prisoner. The prisoner mounted the horse,
saying he would return immediately and pay him. The prosecutor
replied, "Very well, very well." The prisoner rode away with the
horse, and never returned.]
Gould, J. It is impossible, by any construction, to make this case
a felony. The case in Kelyng 82, where a man rides away on a
horse which he had obtained on pretence of trying its paces, was a con-
ditional delivery. Major Semple's case (1 Leach 420), was a contract
[though] of unlimited duration. But, in this case, the delivery was
unconditional, and the contract was completed. It was a sale ; and
the possession, as well as the property, was parted with. The prisoner
has defrauded the prosecutor of the price of the horse, but not of the
horse itself ; and the only remedy the prosecutor has is by an action to
recover the £8, but the prisoner cannot be indicted for a felony.
[Editor's Note. Contrast with this the case of a purchase utterly fraudulent
from the outset, and consequently entirely void ; Eex v. Gilbert, infra, p. 353, or
Bex v. Sharpless, supra, p. 212. Similarly contrast with the case of Rex v. Jones
(4 Cr. App. B. 17) that oi Rex v. Fisher (5 Cr. App. B. 102).]
[i^o taking o/ 7vhat is already in your possession.'\
REGINA V. SMITH.
Crown Case Reserved. 1852. 2 Denison 449.
[Indictment at Glamorganshire Quarter Sessions for larceny of
a piece of stamped paper.]
The prosecutor had been clerk to Isaac Powell, a railway contractor,
from whom wages were still due to him. Prosecutor went to a public
SECT, X.] Regitm v. Smith.
215
house where he saw the prisoner, who was a foreman in Powell's employ...
They agreed upon between them the bahmce of wages due to prose-
cutor which they fixed at £i. lis. Ud. Prisoner then took out of his
pocket a slip of paper impressed with a sixpenny stamp, and put it on
the table. Prosecutor took the stamp and pulled it towards himself,
and asked the prisoner whether he (prosecutor) should write a receipt
for the full sum of £10. 16s., or for the balance. Prisoner said "for
the balance." While prosecutor was writing he observed the prisoner
pull out a fist full of silver and turn it over in his hand. When
prosecutor had written out the receipt, prisoner took it up and went
out of the room. Prosecutor followed him and said, "Smith, you
have not given me the money." Prisoner said, "It's all right."
Prosecutor repeatedly asked prisoner for the money, but in vain....
The learned Chairman told the jury, after much doubt, that if
they believed the evidence, the stamped receipt was the property and
was in the possession of the prosecutor at and after the time of his
writing the receipt ; and that if they believed the prosecutor's state-
ment, and should be of opinion that the prisoner took the receipt out
of such possession with a fraudulent intent, they might convict him of
larceny.
The jury returned a verdict of guilty, and the prisoner was
sentenced to imprisonment for four calendar months with hard labour.
The counsel for the prisoner raised the following objections: —
1st. That there was not such a property and possession in the
prosecutor as to support the charge laid in the indictment.
2nd. That there was no evidence of a felonious taking.
The Chairman thereupon reserved the case for the consideration of
the Judges and begged their opinion thereon.
On the 24th of April, a.d. 1852, this case was considered by Pollock,
C.B., Parke, B., Erie, J., Talfourd, J., and Crompton, J.
Parke, B. The stamped paper never was in the prosecutor's pos-
session, and the prisoner cannot be convicted of stealing it unless the
prosecutor had such a possession of it as would enable him to maintain
trespass. It was merely handed over for him to write upon it.
Terry. But it is found that it was obtained from the prosecutor
by the prisoner with an intent to defraud.
Parke, B. But there was never any property in the stamped
paper in the prosecutor. It was never delivered to him to keep.
Terry. It is submitted that he had a property in it as a
bailee ?
Parke, B. No. It was never intended that he should retain it
It was merely handed to him to write upon it.
216 Select Cases on Criminal Law. [part ii.
The Judges were all of opinion that this was not a case of larceny,
and the con\action was ordered to be quashed.
[Editor's Note. Contrast with the facts of this case, those of Tleg. v. Eodway
(9 C. and P. 784) ; where, upon an indictment for steaHng a receipt, the prosecutor
proved that he went to the prisoner's house to demand half-a-year's rent, and took
with him a stamped receipt for it, written out and signed. The prisoner pulled
out a bag of money, asking the prosecutor whether he had brought a receipt. The
prosecutor said that he had, and the prisoner desired to look at it. The prosecutor
gave him the receipt; the prisoner took it, put two sovereigns into the prosecutor's
hand, and immediately went away. Upon the prosecutor afterwards asking him
for the remainder of the money, he said "I have got my receipt, and I shall not
pay." Coleridge, J., held this to be larceny.]
[But if goods, tJiough in your possession physically, are constructively
in the owner's, any appropriation of them by you will he a
sufficient Taking.]
[J/ere physical possession hy domestic servant as custodian.^
King's Bench. 1506. Y.B. 21 Hen. YII. Hil. pi. 21.
Pigot, an apprentice -at-law, asked this question of Cutler (a
Serjeant): — If I deliver a silver ring to my servant to keep, and he
flees away from me and takes the ring, will this be a felony?
Cutler. It will. For so long as he is in my house or in my
service, whatever I have delivei-ed to him is held to be in my pos-
session. Thus if my butler, who has my plate in his custody, goes off
with it, this is felony. And the law is the same if he who has charge
of my horse goes off with it. The reason is that the things continued,
all the while, to be in my own possession. But if I deliver to my
servant... a ring to take to London', and he goes off with it: there is
no felony. For it was no longer in my possession and he came by it
lawfully.
Pigot. A right distinction ; for in the latter case the master has a
good right of action against him, in detinue or in account.
^ [Editor's Note. See The Carrier's Case, at p. 225 infra, as to cases in which
a man, although at the time your servant, is also employed by you in some
particular transaction as a Bailee, being entrusted not merely with the Custody
but with the legal Possession of an article.]
SECT. X.] Rex V. Chi'<i^ers. 217
[Mere physical possession; by workman as custodian.]
ANONYMOUS.
Old Bailey Sessions. 1664. Kelyng 3.0
A silk throwster^ had men come to work in his own house and
delivered sUk to one of them to work; and the workman stole away
part of it. It was agreed by Hyde, C.J. (myself and my brother
Wylde being there), that this was felony; notwithstanding the delivery
of it to the party. For it was delivered to him only to work; and so
the entire property remained only in the owner, like the case of a
butler who hath plate delivered to him; or a shepherd, who hath
sheep delivered ; if they steal any of them, that is felony at the
common law.
[Mere j^hysical possession ; by customer.]
REX V. CHISSERS.
King's Bench. 1678. 3 Salkeld 194; T. Raymond 275.
Where a person came to a seamstress's shop and asked her to shew
him some linen, which she did and delivered it into his hands, and
then he ran away with it, it was adjudged that this is felony. For
though the goods were delivered by the owner, yet they were never out
of her possession; because though the contract might be begun, by
asking and telling the price, yet it was not perfected. And the sub-
sequent act of his running away doth plainly shew his intention to
take the goods feloniously before the property was altered. For which
he was indicted, convicted and executed.
[For a custodian merely to make a false statement of accounts,
without handing it in, is not a sufficient Appropriation.]
REGINA V. BUTLER.
Leicester Assizes. 1846. 2 Carrington and Kirwan 340.
Butler was indicted for larceny. The prosecutors were spiimers,
and the prisoner, who was in their employ, had been from time to
1 To ' throw ' raw silk is to clean it for weaviug.
218 Select Cases on Criminal Law. [part ii.
time intrusted by them with money for the purpose of paying the
wages of their work-people. The duty of the prisoner was to keep an
account in a book of the monies which he so disbursed. This book was
produced at tlie trial; and on its being so produced, it was proved to
contain three entries made by the prisoner, in each of which he had
charged his employers with more money than he had paid on their
account. The book had been balanced by the prisoner, but there was
no evidence that he had actually accounted with his employers.
"WiGHTMAN, J,, stopped the case. The question here is, did the
prisoner in fact deliver this account to his employers 1 True it is that
here are certain entries, made by the prisoner, which are incorrect;
but they are entries which, perhaps, he never intended to deliver, or,
if he did deliver them, to deliver them with explanations. This was
no accounting ; and there must in this case have been an accounting,
in order to fix the prisoner with the larceny.
The prisoner was acquitted.
Chapter 2. Carrying Away.
[The stolen article must be entirely removed.^
REX V. CHERRY.
Crown Case Reserved. 17S1. Leach 236 and 321.
The prisoner was indicted at the Oxford Assizes for larceny of
a wrapper and four pieces of linen cloth. This bale, packed in the
form of a long square, was in a waggon travelling the Acton Road ; it
lay lengthways in the waggon. The prisoner got into the waggon and
raised the bale perpendicularly on its end for the greater convenience
of taking the linen out, and cut the wrapper all the way down with the
intent to take out the contents. But he was discovered by the
waggoner and apprehended before he had taken anything out. The
jury found him guilty, but Nares, J., reserved the case for the opinion
of the Judges whether this was a sufficient carrying away to support the
indictment.
The Twelve Judges were of opinion that it was not such a removal
of the property as was necessary to constitute the ofiFence of larceny.
SECT. X.] Rex V. Cherry. 219
For the carrying away must be a removal of the goods from tlie place
where they were^...
[But removal to another room in the same house sujtces.]
ANONYMOUS.
Surrey Assizes. 1353. 27 Lib. Ass. pi. 39.
A man was arraigned, who had been arrested in possession of
property he had stolen, viz. two sheets and a bundle of linen. He
claimed his clergy. And it was found by the jury that he had been
a guest in the house of a rich man, where he was allowed to sleep in
the aforesaid sheets. They further found that he arose before day-
break and took the sheets out of his chamber and carried them into the
hall ; and that he then went out to the stable to get his horse, but the
ostler laid hands on him. Whereupon the question was put to the
jury : — Did he carry the sheets into the hall with the intention of
embezzling them ? To which they answered, Yes. Thereupon he was
adjudged a felon. But, as he was a clerk, he was delivered to the
Ordinary.
[Or even to another part of the same room.]
REX V. SIMSON.
Cambridge Assizes. 1664. KELVNr; 31.
Clement Simson was indicted for breaking an house in the day-time
(nobody being in the house), and stealing plate to the value of £10.
And upon the evidence it appeared that he had taken the plate out of
a trunk in which it was, and laid it on the floor; but before he took it
away he was surprised by people coming into the house. And the
Chief Justice Hyde caused this to be found specially, because he
doubted (upon the Stat, of 39 Eiiz. cap. 15 that enacts, that if anyone
be found guilty of the felonious taking away of any goods, ifec, out of
any house in the day-time, above the value of os. he should not have
the benefit of his clergy), whether this were a taking away within the
1 [Editor's Note. I.e., of every particle of the goods from the place where that
particle was. Had this, instead of a flexible bale, been a solid box, the r.ii.sing it
from a horizontal to a perpendicular position would have constituted a eulliciently
complete removal. See Hex v. Thunqjson, p. 221 mfra.]
220 Select Cases on Criminal Law. [part ii.
Statute. And on the 13th of June, all the Judges being met together,
this question was propounded to them. They agreed that clergy was
taken away in this case ; for the Stat, of 39 Eliz. does not go about to
declare what shall be felony, but to take away clergy from that kind
of felony... so that the felony is at common law. And by the common
law, breaking the house and taking of goods, and removing them from
one place to another in the same house, with an intent to steal them is
felony ; for by this taking of them he hath the possession of them, and
that is stealing and felony.
[^Even though thief at once abandon the thing. "l
REX V. AMIER.
Oxford Assizes. 1834. 6 Carrington and Payne 344.
Housebreaking, and stealing two half-sovereigns, the property of
William Smith.
It appeared that the prisoner, after having broken into the house,
took the two half-sovereigns from a bureau in one of the rooms, but
that being detected, he threw them under the grate in that room.
Park, J. If the half-sovereigns were taken with a felonious intent,
this is a sufficient removal of them to constitute the offence.
Verdict, Guilty.
REX V. WALSH.
Crown Case Reserved. 1824. 1 Moody 14.
The prisoner was charged at the Old Bailey Sessions with stealing
a leathern bag containing small parcels, the property of William Ray,
the guard to the Exeter mail.
At the trial, it appeared that the bag was placed in the front boot,
and the prisoner, sitting on the box, took hold of the upper end of the
bag and lifted it from the bottom of the boot on which it rested. He
then handed the upper part of the bag to a person who stood beside
the wheel on the pavement ; and both had hold of it together, endeavour-
ing to pull it out of the boot, with a common intent to steal it. Before
they were able to obtain complete possession of the bag, and while they
SECT. X.] Rix V. Walsh. IIX
were so engaged in trying to draw it out, tlioy were interrupted l.v the
guard and dropped the bag.
Tlie prisoner was found guilty ; but the facts above stated were
specially found by the jury in answer to questions put to theui by the
Common-Serjeant. The Common-Serjeant entertaining some doubta
whether the prisoner could be truly said to have "stolen, taken, and
carried away " the bag, respited tlie judgment, in order that the (jjtinion
of the Judges might be taken on the case.
The Judges met, and considered this case. They lield the convic-
tion right, being of opinion that there was a complete aspurUliun of
the bag.
REX V. THOMPSON.
Crown Case Reserved. 1825. 1 Moody 78.
The prisoner was tried before Mr Baron Garrow, at the Winter
Assizes for the county of Sussex, 1825, for stealing from the person of
John Hilman, a pocket-book and four promissory notes of £1 each.
The evidence of the prosecutor was this : — " I was at a fair at East
Grinstead ; I felt a pressure of two persons, one on each side of me ; I
had secured my book in an inside front pocket of my coat ; I felt
a hand between my coat and waistcoat ; I could feel the motion of the
knuckles ; I was satisfied the prisoner was attempting to get my book
out. The other person had hold of my right arm, and I forced it from
him, and thrust it down to my book, in doing which I just brushed the
prisoner's hand and arm ; the book was just lifted out of my pocket;
it returned into my pocket. It was out ; how far I cannot tell ; I saw
a slight glance of a man's hand down from my breast. I secured the
prisoner after a severe struggle and a desperate attempt at escape in
which he was assisted by twenty or thirty persons." Upon cross-
examination, the witness said, " My coat was open, the pocket was not
above a quarter of an inch deeper than the book ; I am satisfied the
book was drawn from my pocket ; it was an inch above the top of the
pocket." Upon this evidence, it was insisted for the prisoner that the
ofience did not amount to a taking from the person.
The learned Judge recommended the jury, if they were satisfied
that the prisoner removed the book with intent to steal it, to find him
guilty. The jury found the prisoner guilty. But the learned Judge
222 Select Cases on Criminal Law, [part il
respited the execution of the sentence until the opinion of the Judges
could be taken on the point.
The Judges... were unanimously of opinion that the simple^ larceny
was complete.
REX V. LAPIER.
Crown Case Reserved. 1784. Leach 320.
At the Old Bailey in May Session, 1784, James Lapier was indicted
before Mr Baron Perryn, for assaulting Albina Hobart, and taking
from her person violently, and against her will, one gold ear-ring set
Avith diamonds, value £150, the property of her husband George
Hobart, Esq.
The circumstances of this case, as they appeared in evidence, were
as follows: Mrs Hobart was retiring from the Opera-house, through
the King's door, towards her carriage, which had drawn up close to the
pavement of the street to receive her. Whilst she was preparing to
step in, she felt a person, who was proved to be the prisoner, take hold
of her ear, and pull her ear-ring as if endeavouring to pull it off".
Her ear by this violence was torn entirely through; the ear-ring
separated from the ear ; and Mrs Hobart conceived it had been taken
away: but on her arrival at home, it was found amongst the curls of
her hair. There was no proof that the ear-ring was ever seen in the
prisoner's hand; but his hand was seen elevated to her ear, and at
that instant Mrs Hobart exclaimed, "I have lost my ear-ring."
Mr Baron Perryn to the jury. Robbery is only an aggravated
species of larceny; and to constitute a larceny, it is essential that
there should not only be a taking, but a carrying away. The takin*^
in the present case is very clearly proved ; for the ear-ring was com-
pletely separated from the ear : but it seems questionable whether
there has been a sufficient carrying away
The jury found the prisoner guilty. But the judgment was respited
and the case submitted to the consideration of the Judges.
The Twelve Judges were all of opinion tliat it was sufficient.
' [Euitor's Note. But not the aggravated : i.e. it was carried away, but not
'from ' the prosecutor's person. Cf. Rex v. Taylor, L. E. [1911] 1 K. B. 674.]
SECT. X.] The Carrier's Case. 223
Chapter 3. Appropriation by liAii.Liis.
\But a bailee has legal as well as 2)/t7/sical 2iossession ; and th'tvi-fure an
appropriation by hint zvould not be a Takiity.]
[Yet if he breaks bulk, he puts an end to his possession under tite bail-
ment, and so becomes capable of takiiuj.l
. THE CARRIER'S CASE.
Star Chamber. 1473. Year Book 13 Edw. IV. f. 9, Pasch. pi. 5.
In the Star Chamber before the King's Council this matter was
shewn and debated. One had bargained with another to carry certain
bales and other things to Southampton. He took and carried them to
another place; and broke open the bales, and took the goods therein
contained feloniously, and converted them to his own use, and disposed
of them suspiciously. And the question was whether or no this could
be called felony.
Brian [C.J., C.P.]. It seems to me that it cannot. Eor when ho
had possession lawfully by the bailment and delivery of the [other]
party, it cannot afterwards be called felony or trespass: for no felony
can be except with violence and vi et armis ; and what he liimself
had he could not take vi et armis or contra pacem. Therefore it
cannot be felony or trespass, for he [the bailor] can have no action
for these goods except an action of detinue. Etc.
HussEY, the King's Attorney. It is felony where one feloniously
claims the property without cause, with intent to defraud him in whom
the property is animo furandi. And here, despite the bailment (as
above), the pi'operty remained in him who made the bailment. There-
fore he to whom the things were bailed can feloniously claim this
property, just as a stranger can. So it may be felony well enough.
The Chancellor [R. Stillington, Bp. of Bath]. Felony depends on
the intent, and his intent might be felonious in this case, just as if he
had not had possession. Etc.
MoLiNEUX to the same effect. A thing lawfully done can be called
felony or trespass according to the intent, &c. Thus if he who does
the act does not pursue the cause for which he took the goods ; as,
if a man distrains for damage feasant or for rent in arrear, and
afterwards sells the goods or kills the beasts, this is now a tort, tiiough
it was good at the beginning. And so if a man comes into a tavern to
drink, that is lawful; but, if he carries oflF the cup or does other
trespass, then all is bad, &c. And so though the taking to carry (m
224 Select Cases on Criminal Law. [part ii.
above) was lawful ; yet when he took the goods to another place (as
above), he was not pursuing his carrying. And so, by reason of what
he afterwards did, it can be called felony or trespass according to the
intent. Etc.
Brian [C.J., C.P.]. Where a man does something of his own head,
it can be made lawful or unlawful by what he does afterwards ; as in
the cases that you have put. For there his act shall be judged by his
intent, ifec. But where I have goods by your bailment, nothing that
happens afterwards can make that taking bad. Etc.
Vavisour. Sir, it seems to me that our case is better than that of
a bailment. For here the goods were not delivered to him ; but there
was a bargain that he should carry them to Southampton (as above).
And then, if he took them to carry thither, he would take them
warrantably. But, according to the case here set forth, his subsequent
demeanour shews that he took them as a felon and with an intent
other than that of carrying them (as above). And, in that case, he
took them without warrant and cause ; for he did not pursue his
cause, and so it is felony. Etc.
Choke [J., C.P.]. It seems to me that when a man has goods in
his possession by reason of a bailment, he cannot take them feloniously ;
they being in his possession. But yet it seems to me that in this case
there is felony. For here the things that were within the bales were
not bailed to him, but the bales were bailed to him as entire things (as
above) to carry, &c. And in that case, if he had given or sold the
bales, that would not have been felony. But when he broke them and
took out what was therein he did this without warrant. As if one
bails a tun of wine to be carried, if the carrier sells the tun, it is not
felony or trespass, but if he takes what was inside, that is felony. And
here the twenty pounds [the contents of the packages] were not bailed
to him ; and peradventure he knew not of them at the time of the bail-
ment. And so if I bail the key of my chamber to one to keep my
chamber, if he takes my goods out of my chamber, that is felony ; for
they were not bailed to him. Etc.
And it was submitted by some to the Chancellor that this matter
ought to be determined at the common law and not here.
The Chancellor. This suit is brought by a foreign merchant, who
is come here with a safe conduct. He is not bound to sue according to
the law of the land and to tarry the trial by twelve men and other
solemnities of the law of the land ; but it shall be determined accord-
ing to the law of nature in the Chancery. And there he can sue from
day to day and hour to hour, for the speeding of merchants, &c. And
the Chancellor said also that merchants are not bound by our statutes
SECT. X.] The Carrier's Case. 225
when they are introductive of new law; but only wlifii they are
declaratory of old law, to wit, the law of nature, 6ic. And althouj,'li
they be come into the realm, so that the King has jurisdiction to make
them stand to right, &c., that shall be according to the law of nature ;
which is called by some the law merchant, and whicli is universal
throughout the world. And he said that it had been adjudged, not-
withstanding the statute [stat. 15 Hen. VI. c. 3 ; 18 Heu. VI. c. 8],
which wills that safe conducts be enrolled and the number of sailors
and the name of the vessel, &c., that if a foreigner has a safe conduct
without these circumstances in it, still it shall be allowed. For
foreigners say that they are not bound to know our statutes, and they
come here by virtue of the King's seal, to wit, the safe conduct. And
if that be not sufficient [to meet the terms of the statute], still it shall
be received.
But some said that the statute forfeiting merchandise binds aliens
as well as denizens. And it was said that a denizen shall not sue an
alien before the King's Council, but an alien may sue a denizen [there].
Some, however, said that this was by statute.
And afterwards the matter of the felony was argued before the
Justices in the Exchequer Chamber. And there it was held by all
(except Needham [J., K.B.]) that when goods are bailed to a man lie
cannot take them feloniously. But Needham held the contrary. For
he can just as well take them feloniously as can another. And he said
that it had been held that a man can take his own goods feloniously.
As if I bail goods to a man to keep, and I come privily with the intent
to recover damages against him (in detinue, &c.) and take the goods
privily, that is felony. Etc.
And it was held that where a man has possession and that deter-
mines, he then can be a felon of the goods. As if I bail goods to one
to carry to my house ; and afterwards he takes them out, this is felony ;
for his possession is determined when they are in my house, <tc. But
if a taverner serves a man with a cup, and he carries it off, this is
felony ; for he had not possession of this cup, for it was put upon the
table only to serve him to drink, &c. And so it is of my butler or cook
in my house ; they are only ministers to serve me, and if they carry oil",
it is felony ; for they have not possession, for the possession is always
in me. Otherwise would it be if peradventure the things were bailed
to the servants, so that the servants were in possession of them, for then
it would not be felony. Etc.
Lake7i [J., K.B.]. There seems to me a difference between a bail-
ment of goods and a bargain to take and carry them. For by the
bailment possession is delivered ; but by the bargain he [the carrier]
15
226 Select Cases on Criminal Law. [part ii.
has not possession until he takes them, &c. And if he takes them to
carry, then it is lawful, &c., but if he takes them with another intent
tlian to carry them, so that he does not pursue the cause, then it seems
to me that this may well enough be called felony. Etc.
Brian [C.J., C.P.]. It seems to me that it is all one, a bargain to
carry them or a bailment of them. For in both cases he has authority
from the very person in whom the property is ; so that it cannot
be called felony. In Michaelmas Term, 2 Edw. III. an indictment
quod felonice abduxit unum equum was held bad, for it should have
been cepit The like in the Nottingham Eyre, 8 Edw. III. And in this
case the taking cannot be felonious, for he had lawful possession, so
that the breaking of the bales is no felony. ^See a case in 4 Edw. II.:
trespass for that the plaintiff had bought a tun of wine of the defendant,
and this being in the defendant's possession, the defendant broke open
the tun, took off part of the wine and filled up the tun with water, &c. ;
and, because it appeared that the defendant was in possession before
this was done, objection was taken to the words vi et armis in the writ.
But the writ was adjudged good, and the defendant then pleaded not
guilty.
And afterwards the Justices made a report to the Chancellor in
the Council, that in the opinion of most of them it was felony. Yet,
though it was felony, still the goods could not be claimed as waif, for it
appears here that he who sued for the goods is an alien, and the King
has granted him salvum et securum conductum tarn in corpore quam in
bonis. And this is a covenant between the King and him, so that if
a felon takes his goods it is not reason that this alien should lose them,
or be put to suing against the felon ; but he shall sue to the King on
this covenant. And so it seems that the King cannot have such goods
by way of waif, and for the same reason he cannot grant them to
another, and no other can claim them by prescription. And note that
the case was that the sheriff of London claimed the said goods as waif,
&c., and alleged a prescriptive right to waif, &c.
[Editor's Note. Modern statutory legislation has enlarged the definition of
Larceny by making it possible for a bailee to commit this crime by a mere Ap-
propriation, -without any act of Taking, either real or constructive. For (originally
by 20 and 21 Vict. c. 54, s. 4, and now by 24 and 25 Vict. c. 96, s. 3), "Whosoever,
being a bailee of any chattel, money, or valuable security, shall fraudulently take
or convert the same to his own use or the use of any person other than the owner
thereof, although he shall not break bulk or otherwise determine the bailment, shall
be guilty of larceny; and may be convicted thereof upon an indictment for larceny."]
1 It is not clear whether this concluding reference comes from the Chief Justice,
or is an interpolation by the reporter.
SECT. X.] l{i<lln({ V. llitssdil. 1-11
^Bat thW statute only applies to such baUiiifuts an inijwiie a duly uj
handing over the identical tliimj liailrd.^
REGINA V. HASSALL.
Crown Case Reserved. 1861. Lkkmi and Cavk 58.
The following case was reserved by the Chainnun of (.Jujirtt-r
Sessions for the West Riding of Yorkshire.
The prisoner was tried upon an indictment, under the 4tli section
of the 20 and 21 Vict. c. 54' (the Bailee Act), which cliarged him
■with stealing the sum of £2. lis. Id., the property of John Farrell.
It was proved that the prisoner and a msin named Richard i-^haw
agreed, early in January, 18 GO, to start a Money Club. Shaw was
secretary, the prisoner was treasurer; and they, together with one
Bellhouse, formed the committee of management.
The rules of the Club were as follows : — Each member had to
deposit weekly a sum of not less than threepence hajfpenny nor more
than thirteen pence halfpenny. Members omitting any weekly pay.
ment to be subject to a small fine; the odd halfpence to be expended,
(1st) on a feast at the end of the year, and (2nd) in payment of the
services of Shaw, the prisoner and Bellhouse. The prisoner alone had
the custody of all moneys paid in by members ; and had authority to
lend out of the Club money in his hands, provided he first obtained
the secretary's written consent to the loan, sums not exceeding £1, at
the rate of 5 per cent, interest....
Each member was to receive back the exact amount he had paid in,
less the odd halfpence and the amount of his tines, if any ; he was also
to receive, in addition to the sum he had deposited, an equal share of
the total amount arising from fines and from interest on loans. The
sum of £2. 14s. Id. laid in the indictment was the exact amount paid
by John Farrell, the prosecutor, into the prisoner's hands, no part of it
being made up of interest or fines.
On the morning of the 24th of December, the day when the distri-
bution of the Club money was to have taken place, the prisoner UAd
Shaw that his house had been broken and robbed of the money belong-
ing to the Club and of some of his own. The prisoner attended the
Club the same evening, and said that, if time was given him, he could
pay twenty shillings in the pound. The result of an examination of
1 Now, however, the Larceny Act, 1901 (1 Edw. VII. c. 10), makes it a mis-
demeanour—not a Larceny— for an agent to misappropriate; even tliough he may
not be bound to hand over the identical coins or thinf,'s.
2 That enactment is now replaced by s. 3 of 24 and 25 Vict. c. 96.
15—2
228 Select Cases on Criminal Laiv. [part ii.
the prisoner's house by the police was that he was given into custody
on a charge of stealing the Club money.
On the above facts it was contended by the prisoner's counsel : —
1st. That the prisoner was not a bailee of the sum of £>2. 14s. \d.
within the meaning of the 20 and 21 -Vict. c. 54 ; as this money had
been paid into his hands by the prosecutor in small sums in silver and
■sopper coins, which particular coins he was not bound to return.
2nd. That the prisoner was, together with the other members of
the committee, trustee of the funds of the Club, and could not be
indicted under section 4.
3rd. That the facts shewed a partnership existing between the
prosecutor and the prisoner, who could not therefore be convicted.
I overruled the objections, and left the case to the jury, who found
the prisoner guilty; whereupon he was sentenced to twelve months'
imprisonment with hard labour, until the opinion of the Court for the
Consideration of Crown Cases Reserved could be taken, whether on
the above facts the prisoner was rightly convicted.
Campbell Foster, for the prisoner. The evidence does not bring the
case within the 20 and 21 Vict. c. 54, s. 4, which is a criminal enact-
ment and must be construed strictly. The prisoner was not a bailee,
inasmuch as he was not to return the specific coins. He had authority
to lend out the money, and therefore was not a depositary, although
that comes the nearest to his case. He is rather the banker of the
Club; and the money is not deposited with him, but lent to him, as
was held in Pott v. CUgg^ and Tasseli y. Cooper \...
Crompton, J. The object of the statute was to defeat certain
crotchets. If, for instance, I gave a pair of shoes to a man to carry,
who did not happen to be my servant, and he appropriated them to his
own use, an objection used to be taken that he could not be convicted
of larceny, because the original taking was rightful and he was only
a bailee.
WiLLEs, J. Here the circumstances shew that a debt was consti-
tuted between the prisoner and the prosecutor ; and the prisoner has
not stolen the money but the debt. He is a trustee and not a bailea
Hannay, for Crown. Unless this is held to be a bailment, there
will be a failure of justice....
Wilde, B. Non-payment of debts, even if accompanied by fraud,
is not criminal.
Ilannay. It is impossible to use money unless it may be ex-
changed.
» 16 M. and W. 321. a 9 C. B. 509.
SECT. X.] liegina v. IlasaulL 009
CocKnuRN, C.J. This conviction cannot bo sustained. T\u-
prisoner is indicted, under the 4th section of the 20 and lil Vict. c. r)4
for larceny as a bailee. The word bailment must there be understood
in its legal acceptation, viz., a deposit of something to be returned in
specie ; and does not apply to the receipt of money with an oljli^ation
to return the amount, where there is no obligation to roLurn the
identical coin. The present case is not a bailment of the ordinary
kind, and so not within the statute, which must be construed in the
usual way.
Conviction quashed.
[Yet such a duty may be imposed by even a bailment of cash.]
REGINA V. GOVERNOR OF HOLLOWAY PRISON.
Queen's Bench Division. 1897. 18 Cox 631.
In this case a rule nisi had been obtained, calling upon the Governor
of Holloway Prison to shew cause why a writ of Habeas Corpus should
not issue directing him to bring up the body of one Emile George before
the Court, to be dealt witli as they should direct.... This prisoner's
extradition had been demanded by the French Government ; and the
magistrate at Bow Street had committed him for extradition for larceny
by a bailee. The writ of Habeas Corpus was demanded on the ground
that there was no evidence of any act which, if committed in England,
would have constituted an offence according to English law.... The
deposition of the prosecutrix was as follows : — " George asked me for
my daughter Martha in marriage. His references being excellent, 1
consented to the union. As it was necessary, in order to meet tlie
expenses of the marriage, that I should get a certain sum of money, I
entrusted George with a French 3 per cent, bond, the value of which
was about 40,000 francs, on which he told me he had found tlie means
of raising a luan;...and I gave him authority to borrow on it 10,000
francs, which he was to hand to me. But he only handed to me 5,000
francs I consented at his request to negotiate on my bond a furtlier
loan of 6,000 francs ; and gave him another authority to receive this
money for me; which he did. But he kept the whole of it. ...After
receiving peremptory notice to repay me, George ended by declaring
230 Select Cases on Criminal Law. [part il
that the marriage proposals which he had made were only conditional ,
and he disappeared."
Speyicer Boicer, for George. The money was received from the
lender. Prisoner did not receive it fi-om the prosecutrix at all. Nor
did he appropriate the money actually advanced ; for he was not bound
to hand over those specific coins. There can be no larceny of these
moneys, as there was no obligation to hand over the actual money
received, but only an equivalent. See Becj. v. Ilassall (supra, p. 227) ;
JRpg. V. Bro-umlow, 39 Law Times Eep. 479. [Collins, J., referred
to Beg. V, De Banks, L.R. 13 Q.B.D. 29, and Beg. v. Bunkall, L.
and C. 371 {infra, p. 231)].
Lawrance, J. I am of opinion that this rule must be discharged.
The case of Beg. v. De Banks is on all-fours with the present, for, if
you substitute a bond for the horse, the cases are one. It is said that
the principle in Beg. v. De Banks is not in accord with Beg. v. Hassall,
but the facts of the cases are entirely difierent. In Beg. v. Hassall
a treasurer of a money club received small weekly payments from each
member, and had authority with the secretary's consent to lend the
club money to members. There was a periodical division of the funds
and profits amongst the members. There it was held that the treasurer
could not be indicted as a fraudulent bailee for larceny of moneys paid
in by a member. Now, in Beg. v. De Banks the prisoner was employed
by the prosecutor to take care of a horse for a few days, and afterwards
to sell it and give him the money. He sold it, and absconded with the
money. It was held that he was a bailee of the money, and could be
convicted. That is practically what occurred here. It was like a
person being sent to a bank to casli a cheque, who, after he had cashed
it, absconded with the money. He would be a bailee, and could be
convicted as such.
Collins, J. If Mr Spencer Bower's contention was a right one, it
would shew a most lamentable deficiency in our criminal law. In these
two transactions in this case there is abundant evidence of larceny by
a bailee. In the first the bond was intrusted to George to obtain
a loan, and in the second it was again intrusted to him to negotiate
a further loan. It is contended that such transactions as took place in
this case cannot be reached by the criminal law. But sect. 3 of the
Larceny Act, 1861, is in these terms. [His Lordship read the section,
and continued :] Now, the question is, was George a bailee ? He un-
doubtedly converted this money. Why should he not be a bailee ?
There was a marked sum to be returned in this case, and unquestion-
ably he was a mandatory, and, furtlier, he was a depositary. It is
said that Beg. v. Hassall bears on this case, but the facts there are
SECT. X.] Rcgina v. Governor of IloUouay PrUoti. 2;U
altogether different, for obviously in that case there was a fund to l>o
dealt with. He was not a bailee, but a trustee. That lias no beuriu"
on this. I think the rule must be discharged. Raj. v. De liankH is u
clear authority for the principle in this case.
llule discliarged.
\What circumstances suffice to create such a bailment.']
REGINA V. BUNKALL.
Crown Case Reserved. 1864. Leigh and Cave 371.
The following case was stated by the Chairman of Quarter Sessions
for the county of Norfolk....
William Henry Bunkall was indicted for embezzling eight stones
weight of coals, the property of his master, Plenry Hart. In a second
count of the indictment he was charged with the larceny of the said
coals, which wei'e therein also laid as the property of the said Henry
Hart...,
The prisoner had a horse and cart of his own, with which he was in
the habit of carrying out his goods for sale. On the 31st of July the
prosecutor requested the prisoner to fetch him, on the follo^ving day
(August 1st), half a ton of coals from the said station, and on the next
morning (August 1st) Robert Firman, a servant of the prosecutor, by
his master's orders, took to and gave to the prisoner 8«. Qd. of his
master's money to pay for the same. On the said 1st of August the
prisoner proceeded to the Dunham Station with his own horse and
cart, and there saw Rix, a person in Marriott's employ. Rix's evidence
was as follows : — " The prisoner said, ' I want half a ton of blacksmith's
coals.' I put nine hundred weight of coals in the cart and one hundred
weio-ht of coals in the sack. Bunkall asked me to put the hundred
weight in the sack, as he said the cart would hang. He paid me Ss.
for the coals. The price was 8s. ^d. He said he had not more money
then. Bunkall has since paid the sixpence." In cross-examination the
witness stated that he sold the coals to prisoner, and gave him credit
for the balance of the price. Nothing was said as to the coals being
for anybody else than Bunkall, nor was the prosecutor's name ever
mentioned. Rix made out a receipt for the coals as bought by
Bunkall. On the arrival of the prisoner with his cart at the prose-
cutor's house, the prosecutor immediately told the prisoner that he did
232 Select Cases on Criminal Law. [part ii.
not think there was half a ton of coals in the cart. The prisoner said
there was full weight, for he had seen them weighed. The prosecutor
then said he should weigh them, and did so in the prisoner's presence,
and found them a hundred weight short.... The prisoner confessed
taking the coals. On cross-examination the prosecutor stated that the
horse and cart in which the coals were brought from the station were
the property of the prisoner; that he was at liberty to fetch them
when and how he liked ; and that, sa\ e as aforesaid, the prisoner had
never been in any way in the employment of or received any wages
from him.
Upon these facts it was objected by the counsel for the prisoner
that the prisoner could not be found guilty of larceny, as the goods in
question had never been in the possession, constructive or otherwise, of
the prosecutor, nor was the prisoner bound to deliver these specific
goods to the prosecutor ; nor of embezzlement, inasmuch as he was not
employed in the capacity of a servant, nor were the goods delivered to
him on the account of the prosecutor as his employer within the mean-
ing of the statute 24 and 25 Vict. c. 96.
The Court left the case to the jury, whether the prisoner (if guilty)
was guilty of embezzlement or larceny ; and the jury found the prisoner
guilty of larceny upon the second count of the indictment.
Judgment was respited, and the prisoner discharged upon recogni-
zance of bail to appear and receive judgment when called on.
The opinion of the Court for Crown Cases Reserved is requested,
whether upon the facts stated the prisoner was properly convicted of
larceny.
This case was argued, on the 23rd of January, 1864, before
CocKBDEN, C.J., Cromptox, J., WiLLES, J., Chanxell, B., and
Keating, J.
Drake, for the prisoner. This conviction must be quashed. The
prisoner cannot be convicted of a larceny at common law, because the
prosecutor never was in possession of the coal. In Reg. v. JReed\
which is somewhat similar, the prisoner was sent by his master with
a cart to fetch coals, and was convicted of larceny in disposing of the
coals on the ground that the coals when placed in the master's cart
were in the master's possession. Here, on the contrary, the cart did
not belong to the prosecutor but to the prisoner, and, therefore, the
former never had possession of the coals. Spears's Case' is to the same
effect as lieg. v. Eeed\ and is so explained in Bex v. Wahh^.
1 Dears. C. C. 257.
2 2 Leach C. C. 825. See the judgment in Reed's Case, Dears. C. C. 203.
» 4 Taunt. 276.
SECT. X.] Regina v. Bnubdl.
233
COCKBURN, C.J. We are all of opinion that th.To wa.s no larcony at
common, law.
Drake. Neither can the prisoner be convicted of larcer.v as a
bailee, for the coals were not only never in the possession, but were not
even the property of the prosecutor. Credit was given by the person
who delivered the coals, not to the prosecutor, but to the prisoner ; and
the prisoner was at liberty, had he so pleased, to have kept these coals
for himself, and to have fetched others for the prosecutor.
Crompton, J. Suppose I send bills to my agent abroad witii direc-
tions to purchase goods and send them home to me, surely the cargo
would be mine as soon as it was shipped, and it would make no diffe-
rence if the agent chose to bring the goods liome in his own ship. There
is some evidence that the prisoner had appropriated these particular
coals to the prosecutor.
CoCKBURN, C.J. The prisoner evidently meant to take these coals
as part of the coals belonging to the prosecutor ; and, if I had tried the
case, I should have left that question to the jury.
WiLLBS, J. In Taylor v. Flumer'^.^At was held that the property of
a principal entrusted by him to his factor for any special purpose
belongs to the principal, notwithstanding any change which that
property may have undergone in point of form, so long as such property
is capable of being identified and distinguished from all other property.
If I give a man money to buy a horse for me, and he buys a cow for
himself with it, the cow is mine.
Crompton, J. In other words you may follow the money.
Brake. Suppose the prisoner had delivered no coals whatever to
the prosecutor.
Crompton, J. In some cases, no doubt, he might have honestly
done that ; and not have been guilty of larceny, because of the absence
of the felonious intent. Here, however, there was sufficient eviilence
of the existence of a felonious intent.
Drake. In the case of larceny by bailees, it is still necessary that
the goods should have been at some time or other in the possession of
the bailor. These coals never were in prosecutor's possession.
Crompton, J. If a man places debentures in the hands of a bailee
and dies, the bailment continues, and the executors are entitled to
them, although they have never had them in their possession. So
again, in the case of a sale, before delivery there is a bailment between
' 3 M. and S. 562 ; where Lord Ellenborough accepted the proposition that
"If A is trusted by B toith money to piuclia.se a horse for him, and he purchase a
carriage with that money, B is entitled to the carriage."
234 Select Cases on Criminal Law. [part ii.
the vendor and the vendee, though the latter has not yet obtained
possession. It would be a very narrow construction to hold that the
property must have been in the possession of the bailor.
Drake. There was no intention on the part of the coal owners to
constitute a bailment. The duty of the prisoner would have been suth-
ciently fulfilled if lie had delivered any other load of coals to the prose-
cutor, and therefore there was no bailment within the Act, for lieg. v.
Hassall^ shews that only those bailments are within the Act where the
specific thing bailed is to be re-delivered.
CocKBURN, C.J. We are all of opinion that the conviction is good.
The case turns on the construction of the 24 and 25 Vict. c. 96, s. 3,
which enacts that "whosoever, being a bailee of any chattel, money, or
valuable security, shall fraudulently take or convert the same to his
own use, or the use of any person other than the owner thereof,
althougli he shall not break bulk or otherwise determine the bailment,
shall be guilty of larceny." In this case the prisoner was entrusted
with money to buy coals, which he was to bring home to the prosecutor
for remuneration in the prisoner's own cart. The prisoner, having
bought the coals, abstracted a portion of them with the intention
of appropriating such portion to his own use.
Some members of the Court are of opinion'that, even if there was
no evidence of any specific appropriation of the coals by the prisoner to
the prosecutor, yet, as they were bought with the prosecutor's money
given by him to the prisoner for that purpose, that would ipso facto
vest the property of the coals in the prosecutor, and so there would be
a bailment within the terms of the statute.
Others are of opinion that a specific appropriation of the coals by
the prisoner to the prosecutor was necessary; but that there was
evidence of such specific appropriation. The prisoner went with the
prosecutor's money to buy coals, put them into the cart, and took
a portion for himself, pretending to the prosecutor that he had brought
the whole of the coal to him. "We are all of opinion that this was
evidence of a specific appropriation sufficient to justify the jury in
coming to the conclusion at which they arrived.
Conviction afiirmed.
1 Suimi, p. 227 ; S. 0. .SO L. J. R., M. C. 175.
2 [Editou's Note.] And, it would appear, rightly. See above, p. 2.33 n.
SECT. X.] Begina v. Jdch^iou. 235
[Only an act of conversion quite inconsistent tvifh the bailment can
amount to an Appropriation.]
REGINA V. JACKSON.
SoMEnsET Assizes. 1864, 9 Cqx 505.
The prisoner was indicted for larceny of a coat of which he was the
bailee. Prom the evidence it appeared tliat the prisoner lod;?<'d with
the prosecutor, and on the 3rd of January borrowed a coat from the
prosecutor for the day, and returned it. On the 10th of January he
took the coat without the prosecutor's permission. He was seen wearing
it by the prosecutor, who again gave him permission to wear it for the
day. Some few days afterwards, he left the town ; and he was found,
wearing the coat on his back, on board a ship bound for Australia'.
Martin, B., stopped the case ; stating that in his opinion there was
no evidence of a conversion suflBcient to satisfy the statute. There
are many instances of conversion sufficient to maintain an action of
trover, which would not be sufficient to support a conviction under
this statute; the determination of the bailment must be something
analogous to larceny, and some act must be done inconsistent with the
purposes of the bailment. As, for instance, in the case of bailment of
an article of silver for use, melting it would be evidence of a con-
version. So, when money or a negotiable security is bailed to a person
for safe keeping, if he spend the money or convert the security, he is
guilty of a conversion witliin this statute. The prosecution ought to
find some definite time at which the oftence was committed ; e.g.,
a taking the coat on board ship which was subsequent to the prisoner's
going on board himself.
Edlin, for the prosecution, contended that there was evidence of a
conversion sufficient to satisfy the statute ; for the fact that the
prisoner was taking the coat with him on a voyage to Australia was
inconsistent with the bailment, it being a bailment to wear the coat for
a limited period.
Maktin, B., said that the case did not disclose such a crimp as was
contemplated by the statute. He refused the application of the prose-
cution that he would state a case.
1 [Editor's Note.] But probably not about to sail so immediately as to leave
him no opportunity of returning the coat.
236 Select Cases on Criminal Law. [part u.
\But mere pawning may he such an actJ\
REGINA V. MEDLAND.
Central Criminal Court. 1851. 5 Cox 292.
The prisoner was indicted for larceny. It appeared that she had
taken ready-furnished lodgings, and had pawned some of the property
therein belonging to the landlord. It was proved that she had often
pawned, and afterwards redeemed, portions of the same property.
Eohinson, for the prisoner, submitted that if the jury were satisfied
that the prisoner took the property for the purpose of pawning, but
with the intention of redeeming it, she would be entitled to an
acquittal, because the intent would not be permanently to deprive the
owner of it.
The Recorder, after consulting the judges in the adjoining court : —
I have taken the opinion of Mr Justice Coleridge, and of Mr Baron
Piatt upon this case, and they both think with me that there is nothing
in the evidence that will justify the jury in acquitting the prisoner on
the ground that she took this property with the intention of redeeming
it. It would be very dangerous to hold that the suggestion of such an
intent would be sufficient to constitute a valid defence. A person may
pawn property without the slightest prospect of ever being able to
redeem it, and yet there may be some vague intention of doing so if
afterwards the opportunity should occur, however improbable it may
be that it will do so. But it can never be said that there is an inten-
tion to redeem, under circumstances that render it very improbable or
at least uncertain that such ability will ever exist. A man may take
my property, may exercise absolute dominion over it, may trade upon
it and make a profit upon it for three months, and yet may say, when
charged with stealing it, that he meant to return it to me at some time
or another. I shall direct the jury that for such a defence to be at all
available there must be not only the intent to redeem, evidenced by
previous similar conduct, but there must be proof also of the power
to do so, of which the evidence here seems rather of a negative
character.
Verdict, Guilty.
SECT. X.] Regina v. Charles Jones.
237
[Yet even selling, by a person ivho has coascl to be bailee or custodian, ia
not sufficient.^
REGINA V. CHARLES JONES.
Monmouth Assizes. 1842. Carrington and Marshman Gil.
Indictment for stealing a pig. It appeared that on Dec. 18th the
prosecutor had employed the prisoner to drive six pig.s from Cardiff to
Usk fair (which was on the 20th), for which he paid the prisoner six
shillings. The prisoner had no authority to sell any of the pigs. On
Dec. 19th, the prisoner left one of the pigs at Mr Matthews's, of
Coedkernew, to be kept till the next night, saying that it was too tired
to walk. On Monday, the 20th, the prisoner told the prosecutor at
Usk that he had left the pig at Mr Matthews's because it was tired ;
and the prosecutor then desired the prisoner to call at Mr Matthews's
and ask him to keep the pig for him till the following Saturday, and he
would pay him for the keep. On Tuesday, the 21st, the prisoner called
at Mr Matthews's, and sold the pig to Mr Matthews for a guinea ; and
on the 23rd, he told the prosecutor that he had seen Mr Matthews,
and that Mr Matthews would keep the pig till Saturday.
Greaves, for the prosecution. The difficulty is, that the prisoner
sold the pig when it was no'longer in his possession.... He had merely
the custody of the pigs, and if he had sold one of the pigs on the road
it would have been larceny.
Cressvvbll, J. If a man is allowed to have the possession 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 the 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. Here, it appears, that the prisoner left
the pig on Sunday, the 19th; and if nothing more had appeared, I
should have held that Matthews kept it merely for the prisoner. But
on Monday, the 20th, he told the prosecutor that he had left it there ;
and the prosecutor told him to ask Matthews to allow the pig to remain
there till the Saturday. The prosecutor thus consented to Matthews
being the keeper of the pig for him (the prosecutor) ; and then the
prisoner goes and sells the pig to Matthews. He must bo acquitted.
[Editor's Note. It was not until after the prosecutor had put an end to the
prisoner's control over the pig, that the prisoner committed any act of dishonesty.
Hence that act did not amount to a larcenous taking or appropriation.]
^ [Editor's Note.] At common law ; but see now the note on p. 226 supra.
238 Select Cases on Criminal Law. [part il
CHAFfER 4. Personal Chattels.
[There can be no larceny of Real Property.]
THE FORESTER'S CASE.
Assizes. 1338. Y. B. 11 and 12 Edw. III. (Rolls Ser.) 641.
Lib. Ass. ann. 12, f. 37, pi. 32.
A forester was indicted for having feloniously cut down trees and
carried them away. The Justices would not arraign him ; for the
felling of trees which are so annexed to the soil cannot be called felony
even if a stranger did it. Besides here perhaps he himself had the
keeping of them. But because it was possible that the trees were first
cut down by the lord, and then carried off by the forester, [the Justices]
recalled the Inquest ; who answered that he was forester when he felled
them and carried them away.
Shareshull, [J.] to the Inquest. Did the forester hide the trees
from the lord?
The Inquest. We do not know.
Aldeburgh, [J.]. Assuredly we will not charge him, whether he
concealed them or no. We adjudge it no felony, for he wns the
keeper ; and a tree is part of the freehold.
[See also The Case op Peacocks, m/ra p. 250.]
[Even though the thiw) had originally been Personal Property.]
CARVER V. PIERCK
King's Bench. 1648. Style 66.
Carver brings an action upon the case against Pierce for speaking
these words of him, — "Thou art a thief, for thou hast stolen my dung";
and hath a verdict.
The defendant moved in arrest of judgment, that the words were
not actionable. For it is not certain whether the clung be a chattel or
^^^'^- ^-^ Carver v. Pierce. 2.S9
part of the freehold ; and if this, it cannot be th.-ft to take it. but a
trespass; and then the action will not lie.
Bacon, J. Dung is a chattel, and may be stolen
But EoLLE, J answered. Dung may be a chattel, and it may not bo
a chat el. For a heap of dung is a chattel, but if it be spread upon the
land It IS not. Ihe word 'thief here is actionable alone; and there
are no subsequent words to mitigate the former words. For the stealing
ot dung IS a felony if it be a chattel.
Bacon, J., said, It doth not appear in this case of what value the
dung was, and how shall it then be known, whether it be felony or petty
larceny? j f j
To this EoLLE answered, The words are scandalous and actionable
notwithstanding ; though the stealing of the dung be not felony.
[See also Eegina v. Edwards, infra p. 247.1
[Unless it has become identified with the land hy mere legal fiction,
without any physical attachment.']
HOSKINS V. TARRANCE.
Supreme Court op Indiana. 1840. 5 Blackford 417.
Appeal from the Montgomery Circuit Court.
Dewey, J. This was an action of slander. The words laid in the
declaration to have been spoken by the defendant of the plaintiff, are
(amongst others), " He broke into my room and stole the key." Plea,
not guilty. Verdict and judgment for plaintiff. There was e\idence
that the defendant said of the plaintiff, " He broke into a room of my
house, and stole the key out of the door." The defendant moved the
Court to instruct the jury, "Tiiat the key in the lock of the door of a
house, and belonging thereto, is part of the realty ; and not the subject
of larceny, unless the same is first severed from the realty by one
act, and then stolen by another and distinct act." The Court refused
to give this direction.
This refusal gives rise to a question not free from technical
difficulties. It was anciently decided in England that charters and
240 Select Cases on Criminal Law. [part ii.
other assurances of real estate, and the chest in which they were kept,
savoured so much of the realty that they could not be the subjects of
theft. But it was held in a later case, that a window-sash, not hung
or beaded into the frame, but fastened in only by laths so nailed across
as to prevent it from falling out, was the subject of larceny. {Rex
V. Hedges, 1 Leach 201). It is not easy, on principle, to reconcile these
decisions. Clearly title deeds, and the trunk which contains them, are
not fixtures, but are as moveable as any kind of personal property.
But such papers descend to the heir, or pass to the purchaser, of the
estate to which they belong ; (and there is good reason why they should
do so ; for the safety of titles, of which they are the evidence, requires
it). Yet would not the window-sash have taken the same course in
the event of a descent or alienation of the house to which it was
attached ? I see no necessary or reasonable connection between the rule
that title deeds shall pass with the estate, and the principle which has
been made to exclude them from the possibility of being feloniously
stolen. Indeed, the spirit of that very rule, having the security of
title for its object, is violated by withholding from the evidences of
title the protection of criminal justice. If all the technical conse-
quences of considering charters and deeds as a part of the real estate
were to be carried out, their owner, if dispossessed, would be obliged
to resort to an action of ejectment, to recover them — a conclusion
scarcely more absurd, than the doctrine that they cannot be the subjects
of larceny (which is itself nothing but a technical deduction, and one not
very fairly drawn, from the premises assumed as its foundation). There
are, certainly, various purely personal chattels, which at common law
go to the heir, with regard to which theft may be committed, namely,
some species of heir-looms, and things in the nature of heir-looms — •
such as... coat-armour, and pennons, &c. On the contrary, there are
things which go to the executor the taking of which (with whatever
intent) is but trespass, and not larceny ; emblements not severed from
the ground are of this character. But a reasoning, analogous to that
which excludes charters and deeds from being the subjects of larceny —
because, though they have no actual connection with the freehold, they
pass with the real estate — would include, within those larcenable
subjects, emblements ; for these follow the personalty, though they are
attached to the soil.
It is true that the keys of a house follow the inheritance ; and the
writers who lay down this doctrine make no distinction between keys
in the lock, and those in the pockets of their owners. They are,
nevertheless, not fixtures ; but a species of personal property, which,
like title deeds, goes with the land, from a rule of law fomided on
SECT. X.] Ho.^ih'ns v. Tan-ance 241
public convenience. And as no decision, so far as wo know, has as yet
ranked them among the articles upon which hirceny cannot be com-
mitted, and as we see no good reason for carrying the doctrin., of
exemption farther than it has already gone, we feel at liberty, (upon the
authority of Jiex v. JMges, as well as on principle), to decide that as
"personal goods," they are within the purview of our statute relative
to crime and punishment, and are the subjects of theft. Thus the
Circuit Court committed no error in refusing the instruction to the
jury which was asked for by the defendant Its judgment is allirined
with damages and costs.
[£ven if the thief s act of Taking has rendered the thing Personal
Property that act will not amount to Larceny.']
[See Regina v. Townley infa, p. 255.]
[But if Things Real have been rendered Personal by one a/it of mine
my subsequent taking of them, by an entirely separate act, may
be Larceny.]
THE QUEEN v. FOLEY.
Irish Crown Case Reserved, L.R. (Ir.) 1889. C.L. 299.
Case reserved by Mr Justice Gibson.
The accused, Edward Foley, was tried before me at Maryborough
Summer Assizes, for larceny of hay. The indictment was at coiiimon
law.
Foley had been tenant of lands at Ballyadaras. But his tenancy
had been determined by a decree in ejectment, which was duly executed,
and possession taken by the landlord on April 27th, 1888, when the house
on the premises was levelled. On August 10th, the accused was seen by
the police cutting a meadow on the said lands with a scythe. On the
11th he was again seen cutting there. A police constable went to
him there and said, "I am glad someone will be responsible for tlie
K. 16
242 Select Cases on Criminal Law. [part ii.
cutting," when Foley replied, "I might as well have it as the landlord."
On August 13th, Foley proceeded to rake up the hay, which was then
lying scattered in the field, and put it into a cart. He took altogether
ten or twelve cwt., and brought it away.
Mr Leamy, counsel for the prisoner, contended that there was
no larceny, as the indictment was at common law, and the taking
was one continuous act: relying on The Queen v. Townley^. But
Mr Molloy, Q.C., for the Crown, contended that the hay was to be
deemed in the possession of the landlord at the time when the prisoner
removed it.
In reply to a question put by me the jury said that the prisoner did
not abandon possession of the grass cut between the time of cutting
and time of removing same.
Mr ]Molloy, Q.C, contended that there was no evidence to support
this special finding.
It must be taken that the landlord was in possession of the evicted
farm at the time when the grass was cut and removed. But there was
no evidence of any act done by him, or any person on his behalf, on the
evicted farm from the date of eviction until the removal of the hay;
nor was there any evidence of any act done by the prisoner in reference
to the farm or the grass cut, save as above stated.
I advised the jury to convict the prisoner, which they did. But
I did not sentence him, and he stands out on his own rocognizance,
pending the decision of this case.
The question for the Court is, whether on these facts, the prisoner
was properly convicted of larceny?
*****
Holmes, J. The solution of this case depends upon whether there
is any evidence that the grass or hay was not in the possession of the
true owner in the interval between the severance and removal. When
the grass was growing, it belonged to the owner of the land; but,
although he was in possession of it as part of the land, he was not in
possession of it as a personal chattel. It first became capable of being
the subject of larceny when it was severed. It is, I think, clear that
where it is severed by a wrong-doer, and, as part of one continuous
transaction, it is carried away by him, there is no larceny. In such
a case it ,has never, as a personal chattel, been in the possession,
actual or constructive, of the true owner. It has been continuously in
the actual, though perhaps not always in the physical, possession of the
wrong-doer. In the case before us, the defendant, having cut the
i L. E. 1 0. C. R. 315 ; infra p. 254.
SECT. X.] The Queen v. Folaj. 243
grass, left it on the land. Beyond the severance ho did no act of any
kind evidencing actual possession on liis part, and for two days the
owner of the land had, it seems to rae, precisely the same kind of
possession of it as he would have had if it had been cut and left there
by his own servant.
There cannot, I conceive, be constructive (as distinguished from
actual) possession by a wrong-doer ; and when he returned, at the end
of the period I have mentioned, he would be guilty of larceny, unless
he was in actual possession in the interval. There is not, however,
a particle of evidence of such actual possession, and therefore I hold
the conviction right. This conclusion is in strict accordance with
the authorities previous to The Queen v. Townley, referred to by
Mr Molloy, and does not, I think, in any way conflict with that
decision. In that case there was abundant evidence that the whole
transaction was a continuous act ; or, in other words, that the wrong-
doer had never been out of actual possession, ami under the.se cir-
cumstances the fact, upon the assumption of whicli the case was stated
(that the poachers had no intention to abandon the wrongful possession
of the rabbits which they acquired, but placed them in the ditch as
a place of depo.sit till they could conveniently remove them), was
decisive in the prisoner's favour. I consider, however, that that
decision has no application to the present case.
Sir M. Morris, C.J. {i. e. Lord Morris). The question is — Was
the possession of the hay in the prisoner at the time it was removed ;
or was it in the possession of the owner of the soil, in, that is, his
constructive possession 1 Upon the decision of this question it depends
whether the prisoner was or was not guilty of larceny. If the cutting
and taking away were one continuous act the prisoner is not guilty.
That question would have to be found in the pi-isoner's favour, to
entitle him to an acquittal ; but the jury have not so found. They
have, no doubt, found that the prisoner did not abandon the possession
of the grass ; but that was a finding upon a question of law. Further-
more, the jury ha\'e found the prisoner guilty. There is no finding that
the cutting and removing was one. continauus act.
In this case the prisoner cut the grass on the 10 th and 11th
August, and was then seen doing so by a policeman. He came again
three days after, on the 13th August, and removed the hay. Can it
be said that the hay was, during all that interval, in the prisoner's
possession, and not in the possession of the owner of the soil 1 I do
not think it can, or that such removal can be said to be a continuous
act with the original taking
The Queen v. Fetch (14 Cox 116) went on the same ground — the
10— 2
244 ScUct Cases on Criminal Lato. [part ii.
continuity of the act. Mr Justice Field says (at p. 119): "But it is said
that the continuity of the possession by the prisoner was broken by the
act of the keeper in going to the trap and nicking the rabbits"; the
learned Judge, by the use of the words "continuity of possession,"
shewing the grounds upon which the Court decided the case.
The Court in 21ie Qiueen v. Townley decided that tlie prisoner was
not guilty; on the ground that the hiding in the hole in the ground of
the dead rabbits was the same as if they had remained in the prisoner's
possession.
On these grounds I consider that these cases of The Queen v.
Townley and The Queen v. Fetch are authorities in favour of the Crown
in this case. For these reasons I am of opinion that the conviction
should be sustained.
* * * * •
Eight Judges were of this opinion ; though Palles, C.B., dissented.
Conviction affirmed.
Chapter V. The Value.
[Some things are regarded by law as of so little valtte that there can
be no larceny of them.^
REX V. SEARING.
Crown Case Reserved. 1818. Leach 350.
The prisoner was tried before Mr Baron Wood, at the Lent Assizes
for Hertfordshire, for larceny, in stealing " five live tame ferrets con-
fined in a certain hutch," of the price of fifteen shillings, the property
of Daniel Flower.
It appeared in evidence that ferrets are vaJuable animals, and that
those in question were sold by the prisoner for nine shillings.
The jury found the prisoner guilty. But on the authority of 2
East's Pleas of the Crown 614, where it is said that ferrets (among
other things) are considered of so base a nature that no larceny can be
committed of them, the learned Judge respited the judgment until the
opinion of the Judges could be taken thereon.
SECT. X.] Regina v. Searing. 2+r,
The Judges met and considered this case. Thoy were of opinion
that ferrets (though tame and saleable) could not be the subject of
larceny; and that judgment ought to be arrested.
[See also The Case op Peacocks, p. 250; and rtKfsiNA v.
Robinson, hi/ra, p. 357. But remember sec. 21 of the Larceny Act
1861, making it a petty offence, summarily punishable with six months'
imprisonment with hard labour, to steal any bird or animal ordinarily
kept in a state of confinement or for any domestic purpose.]
[Tet even a small slip of paper is of sufficient value.]
REGINA V. PERRY.
Crown Case Reserved. 1845. 1 Carrington and Kirwan 725;
1 Dknison 69.
The prisoner, in one count of the indictment, was charged, as a
servant of the Great Western Railway Company, with stealing an
order for the pa,yraent of money, to wit, an order for the payment of
£13. 9s. 7c?., the property of the Great Western Railway Company;
in another count the thing stolen was described to be " one piece of
paper of the value of one penny," of the goods and chattels of the
Great Western Railway Company. In other counts, the property was
laid in different ways.
It appeared that the Great Western Railway Company being
indebted for poor-rates to the overseers of the parish of Taunton
St James in the sum of £13. 9s. 7d., a cheque for that amount was by
the proper authority drawn at Paddington upon their London bankers,
and then transmitted through the hands of various officers of the
company to the superintendent at the Taunton station. He received
it on Saturday, the 1st of March ; and at the time when the prisoner,
the chief clerk there, was going into the town to his dinner, placed it
in his hands, ordering him to pay it to the overseer, and to bring him
a stamped receipt on his return. On his return, the superintendent
asked the prisoner if he had paid the overseer; he answered, "Yes";
and being asked for the receipt, said, that the overseer, not having one
by him, had promised to forward it to a certain inn in the town for
him. In truth, the prisoner had not paid it, and on Monday morning
got it changed by a tradesman in Taunton, and applied the proceeds to
bis own use.
246 Select Cases on Criminal Law. [part u.
W. G. Rotoe and Edwards, for the prisoner, objected that the cheque
being void for want of a stamp was not a valuable security, and could
not be used in evidence. They cited the stat. 55 Geo. III., c. 184, s. 13.
Coleridge, J. overruled the objection, and reserved the case for the
opinion of the fifteen Judges.
Verdict. Guilty.
W. C. Rotoe. I submit that this cheque was void, and that the
prisoner could not be properly convicted of stealing it.
Lord Denman, C.J. Is it not a piece of paper of the value of one
penny 1
Alderson, B. There is no difference in the offence of stealing a
cheque and stealing a piece of paper, and the count which states this
to be a piece of paper puts an end to all question.
W. G. Rowe. The only two cases at all resembling the present
case are Rex v. Glark^ and Rex v. Bingley'. In the former of these
cases it was held, that a person who stole re-issuable notes after they
had been paid might be convicted of larceny, in stealing the piece of
paper bearing the stamps ; and in the latter, that a piece of paper
on which the prosecutor had written a memorandum as to some
money due to him was the subject of larceny. In those cases the
paper might be of some value to the owner ; but it is here rendered
valueless by a void security being written on it. Mr Serjeant Hawkins,
in treating of those things which are the subject of larceny, says',
" They ought to have some worth in themselves, and not to derive
their whole value from the relation they bear to some other thing which
cannot be stolen, as paper or parchment on which are written assurances
concerning lands, or obligations, or covenants, or other securities for a
debt, or other chose in action."
"WiGHTMAN, J. Not as valuable securities. But are they not pieces
of paper?
Cresswell, J. If a blank cheque had been stolen, would that be a
larceny ?
W. G. Rotoe. I think it would.
Cresswell, J. Would it be worse for being filled up? In Rex
v, Clark bankers' paid notes were held to be the subject of larceny of
the stamps and paper. The paper was held to be "of some value" ;and
I do not see how the stamps carry the thing further, except by making
the paper of greater value.
TiNDAL, C.J. There are two charges here — the one a charge of
stealing a valuable security ; the other a charge of stealing a piece of
1 R. and R. C. C. 181. 2 5 c. and P. 602.
» 1 Hawk. P.O.; Bk, I., ch. 33, b. 22.
SECT. X.] Regina v. Perry. 247
paper. You may get rid of tlio first by its heing a bad cheque; but how
can you get rid of the other I
W. G. Rowe. It appeared to me that the eflect of converting tho
paper into a cheque was to make it valuable, if at all, as a security for
money; and that, the moment the paper had a c1ichiu<- written upon it,
ib became' a chose in action, which is not tho subject of larceny.
Aldkhson, B. The nature of the paper is not so wholly absorbed in
the chose in action as you put it.
W. G. Howe. If the paper is not wholly absorbed in the chose in
action, I should submit that it was of so infinitesimal value as to fall
within the rule (de minimis non curat lex).
Lord Denman, C.J. Your client got £13. 9«. 7d. for it.
W. C. Rowe. This cheque never could fulfil any good purpose, for
want of a stamp. I submit, therefore, that it was valueless, and not
the subject of larceny.
The case was considered by the Judges, who held the conviction
right, as, at all events, there was a stealing of a piece of papei which
was sufficient to sustain a count for larceny.
\0r mere caiTion.'\
REGINA V. EDWARDS AND ANOTHER.
CaowN Case Reserved. 1877. 13 Cox 384.
The prisoners were tried at the West Kent Quarter Sessions, held
at Maidstone, on the 5th January, 1877, on an indictment charging
'hem with stealing three dead pigs, the property of Sir William Hart
Dyke, Bart.
The evidence was to the following effect : The three pigs in question
having been bitten by a mad dog, Sir William Hart Dyke, to whom they
belonged, directed his steward to shoot them. The steward thereupon
shot them each through the head, and ordered a man named Paylis to
bury them behind the barn. The steward stated that he had no inten-
tion of digging them up again, or of making any use of them. Paylia
buried them, accordingly, in a place where a brake stack is usually
1 [Editor's Note.] See Reg. v. Watts, Dearsly 334.
248 Select Casps on Criminal Law. [part ii.
placed. The hole in which the pigs were buried was three feet or more
deep ; and the soil was trodden in over them. The prisoner Edwards
was employed to help Paylis to bury the pigs. Edwards was seen to
be covering the pigs with brakes ; and in answer to Paylis's question
why he did so, said that it would keep the water out, and it was as
well to bury them "clean and decent." The two prisoners went the
same evening and dug up the pigs ; and took them to the railway
station, covered up in sacking, with a statement that they were three
sheep ; and sent them off for sale to a salesman in the London Meat
Market, where they were sold for £9. 2)S. 9 J., which was paid to the
prisoners for them.
The counsel for the prisoners submitted that there was no evidence
in support of the charge to go to the jury ; on the following grounds :
Firstly, that the property was not proved as laid in the indictment, as
Sir William Hart Dyke had abandoned his property in the pigs ;
secondly, that under the circumstances the buried pigs were of no
value to the prosecutor ; and thirdly, that under the circumstances the
buried pigs were attached to the soil, and could not be the subject of
larceny.
The Chairman, however, thought that the case was one for the
jury ; and directed them as to the first point that in his opinion there
had been no abandonment, as Sir William's intention was to prevent
the pigs being made any use of, but that if the jury were of opinion
that he had abandoned the property they should acquit the prisoners.
He also told the jury that he thought tliere was nothing in the other
two objections.
The jury found the prisoners guilty.
The question for the consideration of the Court is, whether, having
reference to the objections taken by prisoners' counsel, there was
evidence on which the jury were justified in convicting the prisoners of
larceny.
No counsel appeared to argue on either side.
By the Coukt : Conviction affirmed.
SECT. X.] A Resolntion. 210
Chapter VL The OwNEusnip.
[There can be no larceny of thivtjx that hare no owner. \
A RESOLUTION.
^348. 22 Liu. A8.s. Oo, 99,
Nota. For killing doves or fishes or other wild things, taken whilst
still wild, no man must suffer death ; unless they were feloniously taken
out of some dwelling-house or mansion*...
Nota. That punishment for taking and carrying away trca.sure-
trove or wrecks or waifs must be by imprisonment and fine ; and must
never be of life and limb.
[And the ownership of living things depends on the control oj thc.^n^,
ANONYMOUS.
King's Bench. 1478. Y.B. 18 Edw. IY., fo. 8, pi. 7.
A man was indicted for having with force and arms broken into
a dovecote, and taken twenty young pigeons which could not fly. It
was adjudged a good indictment, notwithstanding the objection of the
taker of the said pigeons. Because the property in such pigeons must
always be in the person to whom the dovecote belongs, so long as they
cannot get out of it and he can take them whenever he likes. It is
otherwise if he were indicted for taking old pigeons ; because the law
considers the property in them to belong to no one ; for they go about
the countiy and so he cannot take them at his pleasure, &c.* If a man
be indicted for feloniously taking pike or tench out of a pond or trunk,
the indictment is good for tho aforesaid cause ; but otherwise if they
were taken out of a river. The law as to young goshawks which
cannot fly or go, hatched in my ov.n park, is that it is felony^ ; but
otherwise as to other goshawks. So note the difference according as
the property can or cannot be taken by him at pleasure.
* I.e. After the captuiing of them has created ownership.
2 But the law now holds even old pigeons to be larcenable if tame, in spito of
their being thus able to fly freely ; Reg. v. ChcaJ'or, 2 Den. 3G1.
=« But in Bex v. Stride, L. R. [1908] 1 K. B. 617, this old doctrine, that a mere
property j;cr impoteiitiam can be protected by the law of Larceny, was overthrown.
250 Select Gases on Criminal Lmi\ [part ii.
VA-nd the animaCs habits determine wliat degree of physical control is
necessary. '\
THE CASE OF PEACOCKS.
King's Bench. 1526. Y.B. 18 Hen. VIII., pi. 11.
A question was proposed to all the Judges by the Chancellor : If
a man feloniously appropriates peacocks which are tame and domestic, is
tliis felony or not 1
FiTZHERBERT and Englefield [JJ.] replied that it is no felony,
for they are of wild nature, just as are doves in a dovecote The law
is the same with regard to.. .swans taken, or a buck or hind; or to
hares taken otherwise than in a walled garden. It is the same, again,
with regard to a mastiff, a hound, or a spaniel, or a tamed goshawk;
for these are more properly things for pleasure than for profit. And simi-
larly the peacock is rather a bird of pleasure than of profit ; for it often
kills all its chickens except one. And it was agreed that carrying ofi"
apples from my orchard which were growing on the trees at the time
of the taking, or trees themselves which were growing at the time of
the taking, or reaping corn and carrying it away, is no felony, even
when the taking is with a felonious intent ; for, at the time of the
taking, these things were part of the freehold. But if I cut my trees
or reap my corn, and then another person takes them away, with
a felonious intention, this is felony.
But FiTZ.jAMES [C. J.] AND ALL THE OTHER JuDGES Said that peacocks
are usually of the same habits as are hens and capons and ducks and
geese ; they have an animus revertendi, and the owner has a true
property in them. They are not fowls of warren, like pheasants and
partridges, whereof the taking, even with felonious intent, is not
felony.
And at last all the Judges agreed that such a taking of peacocks
was felony, for the reason aforesaid. Quod nota.
REX V. ROUGH.
Crown Case Reserved. 1779. 2 East P.O. 607.
At the Surrey Lent Assizes, John Rough was convicted on an
indictment for stealing a pheasant of the value of forty shillings, of the
goods and chattels of H. S.
SECT. X.] R^oi V. Rough. .J51
All the Judges on a conference in Kjuster IV-im agreed (after
much debate and difference of opinion) that the conviction w.ia had.
For in cases of larceny of animals ferao naturae the indictment n.ust
shew that they were either dead, tamed, or confined. Otherwise they
must be presumed to be in their original state.
[See also Rex v. Edwards svpm, p. 217.]
[But even a temporary ownership during helplessness suffices.}
THE QUEEN v. SHICKLE.
Crown Case Reserved. 1868. L.R. 1 CCR. ir)9.
The following case was stated by Cockburn, C.J. :
James Shickle was tried before me at the last Assizes for the
county of Suffolk on an indictment for larceny, for stealing eleven
tame partridges.
There was no doubt that the prisoner had taken the birds animo
furandi ; but a question arose whether the birds in question could be
the subject of larceny; and the prisoner having been convicted, I
reserved the point for the consideration of the Court.
The birds in question had been reared from eggs which had been
taken from the nest of a hen partridge, and which had been placed
under a common hen. They were about three weeks old, and could fly
a little. The hen had at first been kept under a coop in the prose-
cutor's orchard, the young birds running in and out, as the brotxl of
a hen so confined are wont to do. The coop had, however, been
removed, and the hen set at liberty, but the young birds still remained
about the place with the hen, as her brood, and slept under her •wings
at night.
It is well known that birds of a wild nature, reared under a
common hen, when in the course of nature they no longer require
the protection and assistance of the hen and leave her, betake them-
selves to the woods or fields; and after a short time differ in no resj>ect
from birds reared under a wild hen of their own species.
252 Select Cases on Criminal Law. [part ii.
The birds in question were neither tame by nature nor reclaimed.
If they could be said to be tame at all, it was only that their instinct
led them during their age of helplessness to remain with the hen.
On their attachment to the hen ceasing, the wild instincts of their
nature would return and would lead them to escape from the dominion
and neighbourhood of man. On the other hand, from their instinctive
attachment to the hen that had reared them, and from their inability
to escape, they were practically in the power and dominion of the
prosecutor. The question is, whether under the circumstances, there
can be such property in birds of this description as can be the subject
matter of larceny.
Douglas, for the prisoner. These birds are ferae naturae, and unless
reclaimed are not the subject of larceny. The case finds that they
were not tame nor reclaimed, that they were restrained by their
instinct only from betaking themselves to the woods or fields; not being
confined in any way. They could not, therefore, be the subject of larceny.
No counsel appeared for the Crown.
BoviLL, C.J. I am of opinion that, upon the facts stated, the
question asked of us must be answered in the affirmative, and that the
conviction is right. The case states that "from their inability to
escape, they were practically in the power and dominion of the
prosecutor." That is sufficient to decide the point. In Reg. v. Gory'^
the law on the subject is very clearly laid down by my brother
Channell. He there says, speaking of pheasants hatched under
circumstances similar to those here: "These pheasants, having been
hatched by hens, and reared in a coop, were tame pheasants at the time
they were taken, whatever might be their destiny afterwards. Being
thus, the prosecutor had such a property in them that they would
become the subject of larceny, and the inquiry for stealing them
would be of precisely the same nature as if the birds had been common
fowls or any other poultry; the character of the birds in no way afiect-
ing the law of the case but only the question of identity." In that
statement of the law we all concur. The question here is, were these
birds the subject of property? They were so when first hatched, and
they remained so at the time they were taken by the prisoner, though
it might be that at a later period they would become wild and cease to
have an owner. The prisoner, therefore, was rightly convicted.
CuANNELL, B., concurred.
Byles, J. I am of the same opinion. The usual cases of larceny of
animals are those of animals which, being at first wild, have become
1 10 Cox C. C. 23.
SECT. X.] The Queen v. Shlclde.
2-)3
tame and reclaimed. In this case the only diUerenco \a that the hirdij
are tame and have been so from their birth, thou-h they may bccMmo
wild at a future time.
Blackburn and Lush, JJ., concurred.
Conviction aifinued.
[Or a mere right to the possession of the Thing.]
ANONYMOUS.
1429. Y.B. 7 Hen. VI., fo. 43, pi. 18.
It was said that if I deliver to you certain goods to take care of,
and then I retake them with felonious intent, I shall be hanged for it,
although the ownership was in me. And Norton agreed that this waa
good law. [Of. p. 225 supra.]
[See also the cases suggested in Rex v. Macdaniel, infra, at p. L'Gl.]
\_Right to FossessioTu]
REX r. NOWELL WILKINSON AND JOSEPH MARSDEN.
Crown Case Reserved. 182L Russell and Ryan 470.
[The prisoners were indicted at the Old Bailey for stealing thirty
bales of nux vomica.
A duty of 2s. Qd. on the pound weight was leviable on all nux
vomica imported for consumption in England ; though no duty was
levied on any that was brought here for re-exportation- To client the
Government of this import duty, William Marsden, the owner of these
bales, induced a merchant named Cooper to allow his name to be employed
for passing them through the Custom House (where they then lay in
254 Select Cases on Criminal Law. [part il
bond) as if intended for exportation to Amsterdam. Cooper accordingly
employed a firm of lightermen, Messrs Marsh and Co., to effect the
actual passing of the bales. Messrs Marsh, in all good faith, entered
them at the Custom House for a vessel called the York Merchant, about
to sail for Amsterdam ; and gave a bond to Government, in which they
bound themselves so to export them. They then employed the prisoner
Wilkinson, as their servant, to convey the bales in their boat from the
Customs' warehouse to the York Merchant. Having obtained the
goods, Wilkinson took them in Messrs Marsh and Co.'s boat (not to
the ship but) to a warehouse which had been hired by William
Marsden. There the bales were unpacked by the two prisoners and
William Marsden ; the nux vomica was taken out and sent off to
London. The bales were repacked with cinders and other rubbish ;
and were then put by Wilkinson on board the York Merchant. The
fraud was not discovered by the Customs authorities untU two or three
days afterwards.
The jury convicted the prisoners; and found that the goods
belonged to William Marsden. Park, J., reserved for the Judges the
question whether an owner commits larceny by taking his own goods
from a bailee who has made himself responsible that a given thing
shall be done with the goods, the doing of which the owner, without
the knowledge or consent of the bailee, entirely prevents by his taking
of the goods.]
Four of the Judges, viz. Richardson, J., Burrough, J., Wood, B.,
Graham, B., doubted whether this was larceny, because there was no
intent to cheat Messrs Marsh and Co., or to charge them; but only to
cheat the Crown. Seven of the Judges, ^dz. Garrow, B., Holboyd, J.,
Park, J., Bayley, J., Richards, C.B., Dallas, C.J., Abbott, L.C.J.,
held it a larceny; because Marsh and Co. had a right to the possession
until the goods reached the ship ; and had also an interest in that
possession ; and the intent to deprive them of this possession, wrong-
fully and against their will, was a felonious intent as against them,
because it exposed them to a suit upon the bond. In the opinion of
part^ of these seven Judges, there would have been a larceny, even
though there had been no felonious intent against Marsh and Co.,
but only an intention to defraud the Crown.
1 [Editob's Note.] Russell, who had before him the MS notes of Bayley, J.,
says ' ' vwst " of the seven.
SECT. X.] The. Queen v. TowuUy.
25.5
[The ownership must exist before thu act of th.:ft, and not uunr <, ,„
created by it.]
THE QUEEN v. TOWN LEY.
Crown Case Reserved. 1871. L.R. 1 CCll 3ir)
Case stated by Blackbukn, J.
The prisoner and one George Dunkley were indicted at the North-
ampton Spring Assizes for stealing 126 dead rabbits. In one count
they were laid as the property of William Hollis, in another as being
the property of the Queen. There were also counts for receiving.
It was proved that Selsey Forest is the property of Her Maje:iiy.
An agreement between Mr Hollis and the Commissioners of the Woods
and Forests on behalf of Her Majesty was given in evidence, which tlie
learned Judge thought amounted in legal effect merely to a licence to
Mr Hollis to kill and take away the game; and that the occupation of
the soil, and all rights incident thereto, remained in the Queen. No
point, however, was reserved as to the proof of the property as laid in
the indictment.
The evidence shewed that Mr Hollis' kTeepers, about eight in i In-
morning on the 23rd of September, discovered 12(5 dead and newly-
killed rabbits and about 400 yards of net concealed in a ditch in the
forest, behind a hedge close to a road passing through the forest. The
rabbits were some in bags, and some in bundles strapped together by
the legs, and had evidently been placed there as a place of deposit by
those who had netted the rabbits. The keepers lay in wait, and at
about a quarter to eleven on the same day Townley, and a man who
escaped, came in a cab driven by Dunkley along the road, Townley
and the man who escaped left the cab in charge of Dunkley, and came
into the forest, and went straight to the ditch where the rabbita were
concealed, and began to remove them.
The prisoners were not defended by counsel.
It was contended by the counsel for the prosecution that the
rabbits on being killed and being reduced into possession by a wrong-
doer became the property of the owner of the soil, in this case the
Queen: Blades v. Higgs^; and that even if it was not larceny to kill
and carry away the game at once, it was so here, because the killing
and carrying away was not one continued act. Hale's Pleiis of tlie
Crown, vol. L, p. 510, and L^e v. Ri^ilon'^, were cited.
1 11 H.L. C. 621; 34 L.J, (CP.) 260. » 7 Taunt. 169. at p. 191.
256 Select Cases on Criminal Law. [part ii.
The jury, in answers to questions from the learned Judge, found
that the rabbits had been killed by poachers in Selsey Forest, on land
in the same occupation and ownership as the spot where they were
found hidden. That Townley removed them knowing that they had
been so killed, but that it was not proved that Dunkley had any
such knowledge.
The learned Judge thereupon directed a verdict of not guilty
to be entered as regarded Dunkley, and a verdict of guilty as to
Townley, subject to a case for the Court of Criminal Appeal.
It was to be taken as a fact that the poachers had no intention
to abandon the wrongful possession of the rabbits which they had
acquired by taking them; but placed them in the ditch as a place of
deposit till they could conveniently remove them. The question for
the Court was, whether on these facts the prisoner was properly
convicted of larceny.
BoviLL, C.J....The first question is as to the nature of the
property in these rabbits. In animals ferae naturae there is no
absolute property. There is only a special or qualified right of
property — a right ratione soli to take and kill them. When killed
upon the soil they become the absolute property of the owner of the
soil. This was decided in the case of rabbits by the House of Lords in
Blades V. Higgs ^. And the same principle was applied in the case of
grouse in Lord Lonsdale v. Higg ^. In this case therefore the rabbits,
being started and killed on land belonging to the Crown, might, if
there were no other circumstances in the case, become the property of
the Crown. But before there can be a conviction for larceny for
taking anything not capable in its original state of being the subject of
larceny, as for instance, things fixed to the soil, it is necessary that the
act of taking away should not be one continuous act with the act of
severance or other act by which the thing becomes a chattel, and so is
brought within the law of larceny. This doctrine has been applied to
stripping lead from the roof of a church, and in other cases of things
aflBxed to the soil. And the present case must be governed by the
same principle. It is not stated in the case whether or not the prisoner
was one of the poachers who killed the rabbits. But my brother
Blackburn says that such must be taken to be the fact. Under all
the circumstances of the case I think a jury ought to have found that
the whole transaction was a continuous one; and the conviction must
be quashed.
Maktin, B, I am of the same opinion. I think it ia of the
1 11 H,L. C, 621; 34 L, J. (G,P.) 286.
* 1 H, and N. 923; 26 L.J, (Ex,) 196.
SECT. X.] The Qiu'tn v. roimlnj. i:>l
utmost importance that the criminal law should rest upon jiliiin iin.J
simple principles. Now if a man kills a rabbit and carries it away ;it
once, it is clearly not larceny. But it is said that if lie loaves it
for a little time before carrying it away, it is. And in support of thin
view a passage from Hale's Pleas of the Crown, p. 510, is relied on,
where he says, "If a man come to steal trees, or the lead of a church
or house, and sever it, and after about an hour's time or so come and
fetch it aAvay, this hath been held felony, because the act is not
continuated but interpolated ; and so it was agreed by the Court of
King's Bench, 9 Car. 2, upon an indictment for stealing the lead of
Westminster Abbey." A dictum of Gibbs, C. J., in Lee v. rili,l„n ' to
the same effect is also cited. Those statements may be perfectly
correct, and ought perhaps to be followed in cases exactly similar in
their facts, where there has been an actual abandonment of possession
of the things taken. But here it is expressly found that there was no
abandonment. And where the act is merely interrupted I think it
more reasonable to hold that there is no larceny.
Bramwell, B. I am of the same opinion. And I tliiiik our
decision is consistent with the passage cited from Hale, and the
dictum of Gibbs, C. J., referred to, which appear to me quite correct.
If a man were unlawfully to dig his neighbour's potatoes ; and from
being disturbed in his work, or any other cause, were to abandon
them at the place where he had dug them ; and were afterwards, with
a fresh intention, to come back and take them away, I think the case
would be the same as if during this interval of time the potatoes had
been locked in a cupboard by the true owner. Wherever, in such
cases, the goods may be said to have been in the possession of the true
owner in the interval between the severance and the removal, I think
the removal is larceny. But is that so in this case ? If the poachers
had taken these rabbits to their own house, or to a public-house, can it
be supposed that the subsequent removal of them from there would
have been larceny? And if the case be varied by supposing theni to
have placed them upon land adjoining that on which they were killed,
can that make any difl'erence? And if so, how can it be otherwise,
because the place of deposit chosen is upon the land of the same owner
on whose grounds the rabbits were killed. The case seems to me not
to fall within the rule laid down by Hale ; fur, to use his words, the act
here was "continuated."
Byles, J. I am of the same opinion, though I have ent-ertaine*^]
some doubts. It is here proved as a fact that the possession of the
poachers was never abandoned; and, in fact, the rubbils from the
i 7 Taunt. Ibb, at p. I'Jl.
K. 17
258 Select Cases on Criminal Law. [paiit ii.
time they were taken remained, in part at least, in the bags of the
poachers. I think, therefore, the whole transaction must be regarded
as one continuous transaction.
Blackburn, J. I am of the same opinion. To constitute larceny
at common law it was necessary that the thief should both take and
carry away. And it was early settled that in the case of a thing like
a tree, for instance, when the very act which converted it into a
chattel was accompanied by the taking of it away, there was no
larceny. Almost all the cases falling within this rule have since
been made larceny by statute ; but the common law rule remains
the same. Even in the case of Blades v. Higgs ', in which it was
held that game when killed becomes the property of the owner of
the land upon which it was raised and killed, it was expressly pointed
cut that it by no means followed that an indictment for larceny would
lie. The doctrine is a very early one ; see Book of Assizes, 1 2th year,
par. 32, where it was applied to the case of trees ^ The result is, that
while taking away dead game is larceny, it is otherwise where the
killing and taking away are one continuous act.
Now, to apply these principles to the present case, I do not think
it makes any great difference that the prisoner was himself one of the
poachers ; I think the result would be the same if he had been the
servant of a dealer with knowledge of the circumstances under which
the rabbits had been killed. But then there is the fact that the
rabbits after being killed were left for nearly three hours. I should
myself have thought that that made no difference in the case; but
a passage has been cited from Lord Hale in which he says, that if you
strip lead from a church, "and after about an hour or so come and
fetch it away," this is larceny; and he speaks of this as decided law,
citing Dalton as his authority. A dictum of Gibbs, C.J., to the same
effect has also been referred to. If we are to understand these passages
in the sense put upon them by my brother Bramwell, as applying only
to a case in which the wrongdoer has abandoned and lost all property
and possession in the things in question, I have no quarrel with tliem,
and they do not apply to the present case. But if those passages
mean that the mere cessation of physical j^ossession is sufficient to
make the subsequent act of removal larceny, then they do apply to the
present case. And in that case, great as is my respect for Lord Hale,
I cannot follow him. I cannot see that it makes any difference whether
those who have taken game hide it in one place or hide it in another.
Cuiniotion quashed..
[See Reg IN A v. Foley, supra, p. 241.]
1 11 H. L. C. G21 ; 34 L. J. (C.P.) 286. « The Forester's Case, stqrra, p. 2.3R.
SECT. X.] Rex V. }f,irihurn1. 259
CkATTKH VII. 'i'lIK CLAIM (il RlCHT.
[To constitute larcf»y, the thing must be taken nU only uithout a riyht,
but without even a mistake n claim o/'rifh/.]
[The owner's consent to iransj'ev the jjossession excnues a TukiuyA
REX V. aiACDANIEL.
Old Bailey Sessions. 1755. Fostkr Il'I
[The indictment charged Macdaniel, Berry, Egan, and Sahnon, as
accessoiies before the fact to a felony and robbery conunittcd by Pi-ter
Kelly and John Ellis in the king's highway in the parish of Saint Paul,
Deptford, in the county of Kent, upon tlie person of James Salmon
one of the present prisoners at the bar.]
On this indictment the prisoners have been tried, and the jury
have found a sj^ecial verdict to this effect: — That Kelly and Ellis
were by due course of law convicted of the said felony and robbery.
That before the I'obbery all the present prisoners and one Thojiias
Blee, did feloniously meet at the Bell Inn in Holborn ; and did then
and tliere agree [cf. p. 97 siipra^ that the said Thomas Bl<'e should
procure two persons to commit a robbery on the highway in the parish
of Saint Paul, I^eptford, upon the person of the prisoner Salmon.
That in pursuance of this agreement, and with the privity of all the
prisoners, the said Blee did engage and procure the said Ellis and Kelly
to go with him to Deptford in order to steal linen ; but diil not at any
time before the robbery inform them or either of them of tlie intended
robbery.
That in consequence of the said agreement at the Bell, and with
the privity of all the prisoners, the said Ellis and Kelly went with
the said Blee to Deptford.
That the said Blee, Ellis, and Kelly being there, and the prisoner
Salmon being likewise there waiting in the highway in pursuance of
the said agreement, the said Blee, Ellis and Kelly feloniously assaulted
him, and took from his person the money and goods mentioned in the
indictment....
As to the prisoner Salmon, the Judges upon consideration of this
special verdict were unanimously of opinion, that he cannot be guilty
within this indictment. For unless he was party to the agreement at
the Bell, there can be no colour to involve him in the guilt of ICllis
and Kelly. And on the other hand, if l.e did part with his money and
17—2
260 bclect Cases on Criminal Law, [part ii.
goods in consequence of tliat agreement, it cannot be said that in lecal
construction he was robbed at all : since it is of the essence of robbery
and larceny, that the goods be taken against the will of the owner.
It hath been holden, and I think rightly, that a man may make
himself an accessory after the fact to a larceny of his own goods, or to
a robbery on himself, by harbouring or concealing the thief, or assisting
ill his escape. And under some circumstances a man may be guilty of
larceny in stealing his own goods, or of robbery in taking his own
property from the person of another. A. delivereth goods to B. to keep
for him, and then stealeth them, with intent to charge B. with tlie
value of them ; this would be felony in A. Or A., having delivered
money to his servant to carry to some distant place, disguiseth himself
and robbeth the servant on the road, with intent to charge the
hundred ; this, I doubt not, would be robbery in A. For in these
cases the money and goods were taken from those who had a special
temporary property in them, with a wicked fraudulent intention; which
is the antient known definition of larceny, fraudulenta contractatio rei
alienae invito domino. But I never did hear before this time of any
attempt to charge a man as accessory before the fact to a robbery
committed on his own person.
[But merely facilitating the taking, for purposes of detection,
is not a consent.^
THE KING V. EGGINTON AND OTHERS.
Crown Case Reserved. 1801. Leach 913.
Indictment for burglary [at the factory of the celebrated James
Watt and Matthew Boulton at Soho, near Birmingham]. The prisoners
had applied to one Joseph Phillips, who was employed as watchman to
the manufactory, to assist them in robbing it He informed his
employer who told him to carry the affair on, and consented to his
opening the door and to his being with the prisoners the whole time....
At about 1 a.m. the prisoners came ; and Phillips and they broke open
the counting-house, which was locked, and took from thence ingots of
silver and guineas... and went down into the middle yard, where they
were taken by the persons placed to watch. On this case two points
were made for the prisoners ; the first of which was that no feloziy
was proved, as the whole was done with the knowledge and consent
of I^latthew Boulton and all the acts of the watchman were his
SECT. X.] Tlic K'nuf V. E<j(iint<»i tnnl nfh, rs. 2<il
acts.... The jury found tlio prisoners guilty; but Lawhan'ck, J., r.-.srTv< d
the object ions for the opinion of tho tw«-lve Jud"»'.s.
ClijD'urd, for the prisoners.... The whole criminality is done uwuy by
the consent and assistunco which Matthew Boulton gave to the perpe-
tration of the ofl'ence. Suppose riiillips tho watchman had be«-ii
indicted for the burglary, what could have prevented liis being c-on-
victed of the crime but the assent of the prosecutor?... The otFenco
could not possibly have been perpetrated if it had not been for tho
assistance atiordcd to the prisoners. He referred tq Hex v. Macd<inid
(supra, p. 259).
Manley, for the Crown.... INIatthew Boulton did not stand in a
similar situation with Salmon in Hex v. MaoLniiel ; for he cannot in
any view of his conduct be considered particeps criminia ; inasmuch aa
his consent was only given for the purpose of detecting the prisoners,
and the only business to which that consent applied was (hat which
the prisoners themselves had originally contrived and proposed to
Phillips to join in executing. Neither the prosecutor nor the watch-
man did any act to invite or induce the prisoners to commit the
offence A hop-dealer was suspected of having robbed an inn at
Worcestei'. The landlord, with a view to detect him, hung up a great-
coat in the yard, with a handkerchief hanging partly out of the pocket ;
and the man, being watched, was detected in the very act of steiiling
the handkerchief. On his trial before I\Ir Baron Thompson at the
ensuing Worcester Assizes, I took the objection that the landlord had
voluntarily suffered the property to be taken, and by this contrivance
had induced the prisoner to commit the offence; but the objection was
overruled and the prisoner convicted. There is a case in Fitzherlx'rt
(31 b) which is precisely in point. The servant of an alderman of
London agreed with strangers to steal his master's plate, and procunyl
a false key of the pLice where the plate was kept in the house ; but
the servant afterwards revealed the design to his master, who, on the
appointed night, had men ready to apprehend them; the strangers
afterwards came and entered into the said place witli intent to steal
the plate and were taken, and being tried for the burglary they wer.-
found guilty and executed.
A majority of the Judges held that the prisoners were guilty of
the larceny, for, although Matthew Boulton had permitted or sufi.'red
the meditated offence to be committed, he hiwi not done anything
originally to induce it; that his object being to detect the prisoner.^
he only gave them a greater facility to commit the larceny than they
otherwise might have had ; and that this could no more be consider, d
as an assent than if a man, knowing of the intent of thieves to breiil:
2G2 Select Cases on Crimhtal Law. [part ii.
into his house, were not to secure it with tlie usual number of bolts ;
that there was no distinguisliing between the degrees of facility a thief
might have given to him ; that Boulton never meant that the prisoners
should take away his property ; that the design originated with the
prisoners ; and that all Boulton did was to prevent their design being
carried into undetected execution ; which differed the case greatly
from what it might have been if he had emplo^-ed his servant to
suggest the perpetration of the offence originally to the prisoners.
[Editor's Note. In America, two similar cases have very leeently been
similarly deci'led against the prisoner; llie State v. Able;) (80 N. W. Rep. 225;
Iowa), Alexander V. The State (12 Texas 5-10). In 1907, in the West Australian
case of Rex v. Hansen, the prisoners had suggested to a watchman a robbery of the
warehouse. By his master's advice, he agreed with them as to a time when
he should unlock the gate for them. On his doing so, they entered and took goods.
They were convicted ; the Court distinguishing Macdaniel's case, because in it all
was arranged before the robbers had any idea of robbing.]
^And a consent obtained by intimidation is no consent.^
THE QUEEN v. McGRATH.
Crown Case Reserved. 1869. L.R. 1 C.C.R. 205.
P. McGrath was charged with feloniously stealing 26s., the money
of Peter Powell.
Jane Powell, the wife of the prosecutor, passed a sale room, and on
being invited to enter, did so. There were about a dozen persons in
the room. After two table cloths had been sold, a cloth was put
up for sale by auction, the prisoner acting as auctioneer. A man bid
25s. for it, when another man standing between Jane Powell and the
door said to the prisoner that she had bid 26s. for it, upon which the
prisoner knocked it down to her. The witness Jane Powell said :
"I had not bid for it, nor made any sign. I told the prisoner I had
not bid. He said I did. I said I did not, and would not pay for it :
I said this several times. I went to go out. The prisoner said I had
bid for it, and must pay before I would be allowed to go out. I was
then prevented going out by the man who had said I had bid for it.
He stood between me and the door, and said I must pay for it.
I wanted to go out and the man prevented me. I then paid 26s. to
SECT. X.J Tli^ Queen v. Mi-a.-ath.
2G3
the prisoner: I p.iid the money bor.uiso I wan afruid. Tho pieco of
cloth was then given to mo, and I took it awjiy." hi nl>out un hour
after she returned and saw the prisoner, and told him she could not
keep the cloth, na she had not bid for it. lie told her he could not
give the money hack, but if she came the following week he would
exchange it. The next day the place was closed....
The counsel for the prisoner objected that the fact.s did not prove
a larceny.
The jury were directed that if the prisoner had the intention to
deprive Jane Powell of her money, and in order to obtain it was
guilty of a trick and artifice, by fraudulently asserting that she
had made a bid, when she had not, as he well knew, and that he
obtained the money by such means, he was guilty of tho otrenco
charged.
The jury found that no l)id had been made by Jane Powell, which
the prisoner knew, and that ho obtained the money from her by the
trick and artifice mentioned above. A verdict of guilty was taken.
The questions were, first, whether the facts proved a larceny;
secondly, whether the jury were rightly directed.
The case was argued before Kelly, C.B., ]\I,utin, B., Blackburn,
Lush, and Brett, JJ.
Commins, for the prisoner.... Jane Powell gave the money to the
prisoner. The jury were not asked whether the money was obtained
against the will of Jane Powell, yet this is a necessary ingreclient
in the crime of larceny. The facts of the case shew clearly that the
money was not obtained by a trick, because Jane Powell was not
deceived. The money, therefore, was given either willingly or through
fear. The jury have not found that the money was given through
fear, and therefore it cannot be assumed against the prisoner that it
was not given willingly.
« * * ♦ •
Blackburn, J. To constitute a larceny there must bo an animus
furandi, i.e. a felonious intent to take the property of another against
his will. The essence of the ofiencc is knowingly to take tho g«XKls of
another against his will. The goods may be obtained in various ways.
If by force, then a robbery is committed. This would include larceny,
but force is not a necessary ingredient in larceny. It is suflicient
to constitute a larceny if the goods arc obtained against the will of the
owner. It would be a scandal to the law if goods could be obtaiiie*!
by frightening the owner, and yet that this should not constitute a
taking within the meaning of the dctinitions of larceny. Tho inatorial
ingredient is that the goods should be obtained against the will of tho
264 Select Cases on Criminal Law. [part ri.
owner. The other ingredients of larceny undoubtedly existed here, as
appears from the evidence in the case.
There is ample evidence that the money was obtained against
the will of Jane Powell. If there had been any doubt upon the point
the jury should have been asked the question ; but it is clear that Jane
Powell did not part with her money of her own free will. This is, in
effect, stated in the case. There was evidence that the money was
obtained by the prisoner with a felonious intent and against the will of
Jane Powell. The jury have, in effect, found these facts against the
pnsoner, and these facts constitute larceny. Even if a robbery had, in
fact, been committed, that does not preserve the prisoner from the
liability to be convicted of larceny. A robbery includes a larceny.
There may be some doubt whether a robbery was committed in this
case; but it is not necessary to consider that question.
*****
Brett, J. The question is, whether there was a sufficient taking
of the money. If the matter rested on the trick alone that might be
insufficient, as it is rather evidence of the prisoner's motives than the
means by which he obtained the money. I had some doubt also
whether the fear of a temporary imprisonment, not accompanied by
any personal violence, rendered the taking in this case a robbery.
Upon consideration, however, I think that as the threat was capable of
being executed, and Jane Powell really parted with her money against
her will, that is sufficient to constitute a larceny. There was evidence
of such a taking, and the jury have found, in efiect, that the money
was obtained under a fear sufficient to make the giving of it an
unwilling act. Consequently the taking was against the will of Jane
Powell, and was therefore a larceny.
The other Judges concurred. Conviction affirmed.
[^Nor a consent obtained by a trick.'\
REX V. HENCH.
Crown Case Reserved. 1810. Russell and Ryan 163.
The prisoner was tried at the Old Bailey for larceny of a chest of
tea.... It appeared that Lay ton and Co., who were tea brokers, pur-
cliased the chest of tea in question. No. 7100, at the East India House,
but did not take it away.
SECT. X.] Rex V. rfnirh. 2<"''>
It was proved by a witness, a l;il)ourer in th«> Rorvice of the
East India Company, that on tho 5tli of (Jctolxjr, 1809, ho had the
care of the request notes, and that on that (hiy ho saw the prisoner gu
to the Excise box, the place where they were kept, and take out a
handful and select one of them. The prisoner tl»en went with tho
paper in his hand to look for the chest. No. 7100. The witness went
up to him and asked him what he wanted ; he then took the paper out
of the prisoner's hand, and seeing the number 7100 he pointed to
a chest with a corresponding number, and said that was the chest ho
wanted ; he then returned the request paper to the prisoner in order
that he might go to the permit office and get a permit. The prisoner
went to the permit office and returned with the permit. The witneiis
then took the permit out of his hand, and asked him whose porter
he was, and the prisoner said ISToton's. The witness returned him the
permit and entered the name of Noton in the book, and the prisoner
took away the chest of tea.
It was proved that the prisoner was not employed by Layton and
Co., and that he had no authority from them to demand the chest.
The jury found the prisoner guilty.
An objection was taken by prisoner's counsel, that as the possession
of the property was obtained by a regular I'equest note and permit, it
could only be considered as a misdemeanor.
The Recorder was of a diflerent opinion, but respited the judgment
in order to take the opinion of the Judges, Whetlier the facts above
stated did or did not amount to a felonious taking.
In Hilary term, 27th of January, 1810, all the Judges met (except
Heath, J.) and held this conviction to be right
[^Larceny by a trich^
REX V. WILLIAMS.
Monmouth Assizes. 1834. 6 Cahiunoton and Payne 390.
The prisoner was indicted for stealing a half-crown, two shillings,
and six penny pieces. It appeared tliat the prisoner went to the shop
of the prosecutor, and asked the prosecutor's son, who was a boy, to
give him change for a half-crown. The boy gave him two shillini,'9
and six penny pieces, and the prisoner held out a half-crown, of which
266 Select Cases on Criminal Law. [part ii.
the boy caught hold by the edge, but never got it. The prisoner then
ran away.
Talbot, for the prosecution, cited the case of Rex v, Oliver (2 Leach
1072).
Park, J. (in summing up). If the prisoner had only been charged
■with stealing the half-crown I should have had great doubt. But he is
indicted for stealing the two shillings and the copper. He pretends
that he wants change for a half-crown; gets the change, and runs off
I think that is a larceny.
Verdict, Guilty,
[But if tlie owner consent to a transfer nf the ownership, as well as of the
jjossession, it is doubtful whether his Spontaneous Mistake [even
though sufficient to hivalidate the transfer) vuill prevent the consent
from excusing the Taking.^
THE QUEEN v. MIDDLETON.
Crown- Case Reserved. 1873. L.R. 2 C.C.R. 38.
At the Session of the Central Criminal Court, held on Monday, the
23rd of September, 1872, George Middleton was tried for feloniously
stealing certain money to the au)ount of £S. IGs. lOd. of the moneys of
the Postmaster-General.
The ownership of the money was laid in other counts in the Queen
and in the mistress of the local post office.
It was proved by the evidence that the prisoner was a depositor
in a Post Office Savings Bank, in which a sum of lis. stood to his
credit.
In accordance with the practice of the bank, he duly gave notice to
withdraw 10s., stating in such notice the number of his depositor's
book, the name of the post office, and the amount to be withdrawn.
A warrant for 10s. was duly issued to the prisoner, and a letter of
advice was duly sent to the post office at Nottiiig Hill to pay the
prisoner 10s. He presented himself at tliat Post Office and handed in
his depositor's book and the \v;urant to the clerk, who, instead of
referring to the proper letter of advice for 10s., referred by mistake to
another letter of advice for £S. 16s. lOd., and placed upon the counter
a £o note, three sovereigns, a half sovereign, and silver and copper,
SECT. X.] Tlw Queen v. Middleton. fi67
amounting altogether to £8. 16s. 10c?. The clerk entered the amount
paid, viz., £8. 16s. \0d. in the prisoner's depositor's book and stamped
it, and the prisoner took up the money and went away.
The mistake was afterwards discovered, and the prisoner was
brought back, and upon being asked for his depositor's book, said he
had burnt it. Other evidence of the prisoner having had the money
•was given.
It was objected by counsel for the prisoner that there was no
larceny, because the clerk parted with the property and intended to
do so, and because the prisoner did not get possession by any fraud or
trick.
The jury found that the prisoner 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.
A verdict of guilty was recorded, and the learned Common Serjeant
reserved for the opinion of the Court for Crown Cases Reserved the
question whether under the circumstances above disclosed, the prisoner
was properly found guilty of larceny.
[The case came on in the ordinary course before five Judges ; but on
the argument, they were not agreed, and the case was adjourned to be
re-argued before a fuller Court. Fifteen Judges sat to hear it. Eleven
of them were of opinion that the conviction ought to be affirmed, but
four were of a contrary opinion. Judgment was given in accordance
with the opinion of the majority.
Martin, Bramwell and Cleasby, B.B., and Brett, J., held that as the
clerk delivered the money with the intention of passing the property in
it, there was no trespass and therefore no larceny.
Three of the remaining eleven Judges (Bovill, C.J., Kelly, C.B.,
and Keating, J.) agreed that this would have been so if the clerk had
had full autliority to dispose of the money, but held that his act was
unauthorised ; and the prisoner's taking was therefore a larceny. The
other eight Judges (Cockburn, C.J., Blackburn, Mellor, Lush, Grove,
Denman, and Archibald, JJ., and Pigott, B.) held that the clerk's
mistake defeated the effect of his intention to pass the property, and
that consequently, irrespectively of the question as to how far his
authority extended (which they left undecided), there was a larceny.
And one of the eight (Pigott, B.) held that, irrespectively of the
mistake, the manual acts of the clerk had not amounted to even a
physical delivery.]
Cockburn, C.J., Blackburn, Mellor, Lush, Grove, Denman, and
Archibald, JJ., concurred in the following judgment The finding of
268 Select Oases on Criminal Law [part ii.
the jury, that the prisoner at the moment of taking the money, had the
animus furandi and was aware of the mistake, puts an end to all
objection arising from the fact tliat the clerk meant to part with the
possession of the money.
On the second question, namely whether, assuming that the clerk
was to be considered as having all the authority of the owner, the
intention of the clerk (such as it was) to part with the property
prevents this from being larceny, there is more difficulty, and there
is, in fact, a serious difference of opinion, though the majority, as
already stated, think the conviction right. The reasons which lead
us to this conclusion are as follows : — At common law the property
in personal goods passes by a bargain and sale for consideration,
or a gift of them accompanied by delivery; and it is clear, from the
very nature of the thing, that an intention to pass the property is
essential both to a sale and to a gift. But it is not at all true that
an intention to pass the property, even though accompanied by a
delivery, is of itself equivalent to either a sale or a gift. We will
presently explain more fully what we mean, and how this is material.
Now, it is established that ^\■llere a bargain between the owner of the
chattel has been made with another, by which the property is trans-
ferred to the other, the property actually passes, though the bargain
has been induced by fraud. The law is thus stated in the judgment of
the Exchequer Cliamber, in Clough v. London and North Western
Railway Co}, where it is said, "We agree completely with what is
stated by all the judges below, that the property in the goods passed
from the London Pianoforte Co. to Adams by the contract of sale ; the
fact that the contract was induced by fraud did not render the contract
void, or prevent the property from passing, but merely gave the party
defrauded a right, on discovering the fraud, to elect whether he would
continue to treat the contract as binding, or would disaffirm the
contract and resume his property,... We think that so long as he has
made no election, he retains the right to determine it either way,
subject to this, that if in the interval, whilst he is deliberating, an
innocent third party has acquired an interest in the property ; or if, in
consequence of his delay, the position even of the wrongdoer is affected,
it will preclude him from exercising his right to rescind." It follows
obviously from this that no conversion or dealing with the goods, before
the election is determined, can amount to a stealing of the vendor's
goods; for they had become the goods of the purchaser, and still
remained so when the supposed act of theft was committed. There are,
accordingly, many cases, of which the most recent is Reg. v. Frince"^,
1 Law Itep. 7 Ex. '2«i, at pp. 34, 35. ^ l-^^^ j^gp j q q j^q^
SECT. X.] The Qiiavii v. Muhllrti,,,. •2«i9
which decide that in such a case the guilty party must be indictcl for
obtaining the goods by false pretences, and cannot be convict.nl of
larceny. In that case, however, the money was paid to the liol.jer <.f a
forged cheque payable to bearer, and therefore vested in the lioldor.
subject to the right of the bank to divest the projierty.
In the present case, the property still remains that of the Post-
master-General, and never did vest in the prisoner at all. There was
no contract to render it his which required to be rescinrled ; there was
no gift of it to him, for there was no intention to give it to him or to
anyone. It was simply a handing it over by a pure mistake, and no
property passed. As this was money, we cannot test tlie case by seeing
whether an innocent purchaser could have held the property. liut let
us suppose that a purchaser of beans goes to the warehouse of a mer-
chant with a genuine order for so many bushels of beans, to be selected
from the bulk and so become the property of the vendee, and that by
some strange blunder the merchant delivers to him an equal bulk of
coffee. If that coffee was sold (not in market overt) by the recii>ieiit to
a third person, could he retain it against the mcrchajit, on the ground
that he had bought it from one who had the property in the cotFee,
though subject to be divested ? We do not remember any case in which
such a point has arisen, but surely there can be no doubt he coukl not;
and that on the principle enunciated by Lord Abinger, in Chanter v.
Hopkins^, when he says, " Tf a man oilers to buy peas of another, and
he sends him beans, he does not perform his contract, but that is not
a warranty; there is no warranty that he should sell him peas; the
contract is to sell peas, and if he sends him anything else in their stead,
it is a non-performance of it."
We admit that the case is undistinguishahle from the one supposed
in the argument, of a person handing to a cabman a sovereign by
mistake for a shilling; but after carefully weighing the opinions to the
contrary, we are decidedly of opinion that the property in the sovereign
would not vest in the cabman, and that the question whether the cab-
man was guilty of larceny or not, would depend upon this, whether he,
at the time he took the sovereign, was aware of the mistake, and had
then the guilty intent, the animus furandi.
But it is further urged that if the owner, having power to dispose
of the property, intended to part with it, that prevents the crime from
being that of larceny, though the intention was inoperative, and no
property passed. In almost all the cases on the subj.-ot, the property
had actually passed, or at least the Court thought it liad pa4i.s.-d ; but
» 4 M. and W. at p. 404.
270 Select Cases on Criminal Laiu. [part ii.
two case?!, Rex -v. Adayn.t', and I\'ex v. Atkinson', appear to have boon
decided on the ground that an intention to pass the property, though
inoperative, and known by the prisoner to be inoperative, was enough
to prevent the crime from being that of larceny. But we are unable to
perceive or understand on what piinciples the oases can be supported if
Hex V, Davenport^ and tlie others involving the same principle are law ;
and though if a long series of cases had so decided, we should think we
were bound by them, yet we tliink that in a Court such as this, which
is in effect a Court of error, we ought not to feel bound by two cases
which, as far as we can perceive, stand alone, and seem to us contrary
both to principle and justice.
* * * « *
Kelly, C.B....If the money had belonged to the clerk, and the
clerk had intended to pass the property in the money from himself to
the prisoner, or if the money belonging to the Postmaster-General or
the Queen, the clerk had been authorised to pass the property in that
money to the prisoner, the case might have been difterent; but this
money did not belong to the clerk, and he had no authority to pass the
property in that money to the prisoner.
Reg. V. Prince* was cited, wliere a banker's clerk to whom a forged
cheque was presented paid the money in ignorance of the forgery, and
the receiver, who intended to defraud the banker of the money, was
acquitted of larceny, on the ground that the clerk had authority to
receive the cheque, and to dispose of the money which he had paid to
the prisoner, and was the agent of the banker in so doing, so that the
case was the same as if the banker himself, who was the owner of the
money, had delivered it to the prisoner. There, however, the clerk was
not only the agent of the banker, but he acted strictly in the discharge
of his duty, for he had not only the authority of his employer to pay
the money, but in the absence of any suspicion or reason to suspect
that the cheque was forged, it was his duty to pay it, as he did pay it,
with the banker's money. And there are other cases where the owner
of a chattel delivers it to another, with the intent to pass the property,
and the receiver has been acquitted of larceny.
But in this case the post office clerk was not the owner of the £8,
and had no authority whatever to deliver that sum of money to the
prisoner. The case appears to me to be the same, as indeed I suggested
during the argument, as if the prisoner had left a watch at a watch-
maker's to be repaired, and afterwards goes to the watchmaker's, sees
his watcii hanging up behind the counter and another watch of greater
1 2 llussell on Crimes, 6th ed. at p. 145. 2 2 East, P. C. 673.
- 2 liussell on Crimes, 4tli ed. at p. 201. * Law Kep. 1 C. C. 150.
SECT. X.] The Qmvn v. Mhldlcto,,. i'7 1
value and belonging to another person iiangiiig b.-side it, and upon his
asking for his watch the shopman by mistake hands him the watch
belonging to another ; he sees his own watch, he knows that the watch
handed to him does not belong to him, but is the property of another,
and the shopman has no authority whatever to deliver the watch of
another to him. I have no doubt, therefore, that one who hati so
received and taken away another man's property would have b-.-n
guilty of larceny; that the shopman in such a c.-use, and the clerk in
this case, is in the condition of a raeie stander-by who, without
authority and by mere mistake, hands to hiiu a chattel which he sees
before him
* * * » ♦
Bramwell, B....The taking must be invito domino. (Tliat does not
mean against his will, but without it. All he need be is invitus ; this
accounts for how it is that a tinder may be guilty of larceny).... Hut
where the dominus has voluntarily parted with the possession, intending
to part with the property in the chattel, it has never yet been held that
larceny was committed (whatever fraud may have been used to induce
him to do so, nor whatever may be the mistake he committed), because
in. such case the dominus is not invitus.
...A point is made for the prosecution on which I confess I have
had the greatest doubt. It is said that here the dominus was invitus ;
that the dominus was not the post office clerk, but the Postmaster-
General or the Queen ; and that therefore it was an unauthorised act
in the post office clerk, and so a trespass in Middleton invito domino.
I think one answer to this is, that the post office clerk hud authority to
decide under what circumstances he would part with the money with
which he was intrusted. But I also think that, for the purposes of
this question, the lawful possessor of the chattel, having authority to
transfer the property, must be considered as the dominus within this
I'ule, at least when acting bona fide. It is unreasonable that a man
should be a thief or not, not according to his act and intention, but
according to a matter which has nothing to do with them, and of which
he has no knowledge.
According to this, if I give a cabman a sovereign for a shilling by
mistake, he taking it animo furandi, it is no larceny ; but if I tell my
servant to take a shilling out of my purse, and he by mistake takes
a sovereign, and gives it to the cabman, who takes it animo furandi,
the cabman is a thief. It is ludicrous to say that if a man, instea<l of
himself paying, tells his wife to do so, and she gives the sovereign for
a shilling, the cabman is guilty of larceny, but not if the husk-ind gives
it. It is said that there is no great harm in this; that a thief in mind
070
Select Cases on Criminal Lav?. [part ii.
and act has blundorod into a crime. I cannot agree. I think the
criminal law ought to be reasonable and intelligible. Certainly a man
who had to be hung owing to this distinction might well complain, and
it is to be rememhered that we must hold that to be law now which
would have been law when such a felony was capital. Besides, juries
are not infallible, and may make a mistake as to the animus furandi,
and so find a man guilty of larceny when there was no theft and no
animus furandi. Moreover, l^eg. v. Prince^ is contrary to this argu-
ment, for there the banker's clerks had no authority to pay a forged
cheque if they knew it ; they had authority to make a mistake, and so
had the post ofl&ce clerk. And suppose in this case the taking had
been bona fide — suppose Middleton could neither write nor read, and
some one had made him a present of the book without telling him the
amount, and he had thought the right sum was given him — would his
taking of it have been a trespass ? I think not, and that a demand
would have been necessary before an action of conversion could be
maintained
i.f ^ ■ip ^ V
Cleasby, B The cases establish, first, that where delivery is
fraudulently obtained from any person having no authority to deal
with the property, it is a taking from the owner. The instances of
this are obtaining delivery from a mere servant by a false representa-
tion of the master's orders : obtaining delivery from a carrier whose
only authority is to change the possession from A. to B., by a false
representation of being B. Another instance, more like the present,
because there is a mistake, where a person leaves his umbrella, or
cloak, or watch, with any person to be returned on application, and he
afterwards fraudulently identifies as his own a more valuable umbrella
or cloak belonging to another person. This would be a taking, because
the parties had no transaction or dealing connected with property, the
person in charge having only an authozity to return to each person his
chattel.
Secondly, the cases establish that, when the owner himself delivers
them, but only for the purpose of some oflice or custody, as of a man
delivering sheep to his shepherd (an instance put by Coke), if the shep-
herd who has them in his charge fraudulently converted them to his
own use, it would be a taking, because the right of possession (much
less of property) was not for an instant changed.
But the cases also establish that, where tliere is a complete dealing
or transaction between the parties for the purpose of passing the
1 Law Htp. 1 C. C. 150.
SECT, x] The Qiieen v. MiddkUni. 273
property, and so the possession parted with, there is no Uikii.tr. .ir.-l tl..,
case is out of the category of larceny.
Considering what the penalty was, there was nothing u ureas., nnhlo
or contrary to the spirit of our laws in drawing a dividing line, and
holding that, whenever the owner of property is a party to such a
transaction as I have mentioned, such serious consequences were not to
depend upon the conclusion which might be arrived at as to the precise
terms of the transaction, which might be complicated, and uncertain,
and difficult to ascertain.
...I believe the rule is as I have stated, and that it is not limited to
cases in which the property in the chattel actually passes by virtue ..f
the transaction. I have not seen that limitation put upon it in any
text book on the criminal law, and there are, unless I am mistaken,
many authorities against it. The cases show, no doubt, beyond (|ues-
tion, that where the transaction is of such a nature that the property
in the chattel actually passes (though sul»ject to be resumed by reason
of fraud or trick), there is no taking, and therefore no larceny. But
they do not show the converse, viz., that when the property does not
pass, there is larceny. On the contrary, they appear to me to show
that where there is an intention to part with the property along with
the possession, though the fraud is of such a nature as to prevent that
intention from operating, there is still no larceny. This seems so
clearly to follow from the cardinal rule that there must be a taking
against the will of the owner, that the cases rather assume that the
intention to transfer the property governs the case, than expressly
decide it. For how can there be a taking against the will of the owner,
where the owner hands over the possession, intending by doing so to
part with the entire property?
As far as my own experience goes, many of the cases of fraudulent
pretences which I have tried have been cases in which the prisoner has
obtained goods from a tradesman upon the false pretence that he came
witli the order from a customer. In these cases no property passes
either to the customer or to the prisoner; and I never heard such a case
put forward as a case of larceny. And tlie authorities are distinct,
upon cases reserved for the judges, that in such cases there is no
larceny; Reg. v. Adams\
With those authorities before me, I cannot accept as the proper
test, not the intention of the owner to deliver over the property (which
is a question of fact), but the effect of the transaction in passing
the property, which might raise in many cases a question of law.
1 1 Den. Cr. C. 3fl.
IT. 18
274 Select Cases on Criminal Law. [part ii.
This appears to me to be a novelty ; at variance with the definition of
larceny, which makes the mind and intent of the owner the test; and
irreconcileable with the manner in which these cases have always been
dealt with.
[Consent of otvner's wifp. excuses a taking^
THE KING V. HARRISON.
Old Bailey Sessions. 1756. Leach 47.
At the Old Bailey in February Session, 1756, Nathaniel Harrison
was tried before Mr Baron Adams, present Mr Justice Denison and
Mr Justice Bathurst, for stealing a silver tankard and three silver
castors, the property of James Cobb.
The prisoner was an apprentice to the prosecutor. The prose-
cutors wife had continual custody of the key of the closet where her
husband's plate was usually locked up. It appeared that she had
pawned some articles of it, in order to supply the prisoner with pocket
money ; but the articles she pawned were not those mentioned in the
indictment. The prisoner confessed that he took the articles men-
tioned in the indictment from the closet; and a pawnbroker proved
that he received them in pledge from the prisoner ; but it did not
appear by what means the prisoner had gained access to the closet
from which they were taken.
The Court held, That the prosecutor's wife having the constant
keeping of the key of the closet where the plate was usually locked up,
and it appearing that the prisoner could not have taken it without her
privity or consent, it might be presumed that he had received it from
her. He was accordingly acquitted.
\But not where she gives this consent to her adulterer.]
REGINA V. FEATIIERSTONE.
Crown Case Reserved. 1854. Dearslv 369.
The prisoner, George Featherstone, was tried at the Spring Assizes,
1854, holden at Worcester. The indictment charged him with stealing
twenty-two sovereigns and some wearing apparel.
It appeared that the prosecutor's wife had taken from the prose-
SKCT. X.] Regina v. Fenthrrstmic. 275
cutor's l)c<l-rooni tl.irty-fivo sovereigns and Kr.u.o artiolos of clotlun-
and that when she loft the house slie called to the prisoner, who was h.'
a lower ro.mi with the prosecutor and other persons, and said, "Uoorge
It's all liglit, come on." Prisoner left in a few minutes after.' *
The prisoner and tlic wife were afterwards seen together at various
places, and eventually were traced to a public-house where thoy passed
the night together. When taken into custody the prisoner had twenty-
two sovereigns upon him.
The jury found the prisoner guilty, stating that they did so "on the
ground that he received the sovereigns from the wife, knowing that
she took them without the authority of her husband."
Whereupon the Judge respited tlie judgme.it, admitted the prisoner
to bail, and reserved for the opinion of the Court of Criminal Appeal
the question whether a delivery of the husband's goods by the wife to
the adulterer, with knowledge by him that she took them without the
husband's authority, was sufficient to maintain the indictment for felony
against him?
Lord Campbell, C.J. We are of opinion that this conviction is
right. The general rule of law is, that a wife cannot be found guilty
of larceny for stealing the goods of her husband, and that is upon the
principle that the husband and wife are, in the law, one person. But
this principle is, properly and reasonably, qualitied when she becomes
an adulteress. She thereby determines her quality of wife, and her
property in her husband's goods ceases. The prisoner was her accom-
plice ; and the jury tind that he assisted her, and took the sovereigns,
knowing that she had taken tliem without the husband's consent It
is said, in 1 llussell on Crimes (p. 23), that a stranger cannot commit
larceny of the husband's goods by the delivery of the wife; but a dis-
tinction is pointed out where he is her adulterer. In Dalton, p. 353,
it is said, " but it should be observed that if the wife should steal the
goods of her husband, and deliver them to B., who knowing it carries
them away, B. being the adulterer of the wife, this, according to a very
good opinion, would be felony in B}; for in such case no consent of the
husband can be presumed." That case is identical with the present.
The prisoner knew that it was without the consent of the hubband.
We think the conviction was clearly right.
The other learned Judges concurred.
Conviction affirmed.
^ [Editor's Note. And, by vh-tue of ss. 12 and 16 of the Married Womca's
Property Act 1882, the eloping wife herself also may be couvicted of larceny.]
18—2
276 Select Cases on Criminal Law. [part ii.
[Finding a lost article, with no likelihood of discovering its owner,
gives a sufficient Claim of Bight.^
REGINA V. THURBORN.
Crown Case Reserved. 1849. 1 Denison 387.
The prisoner was tried before Parke, B., at the Summer Assizes
for Huntingdon, 1848, for stealing a bank note.
He found the note ; which had been accidentally dropped on the
high road. There was no name or mark on it, indicating who was the
owner; nor were there any circumstances attending the finding which
would enable him to discover to whom the note belonged when he
picked it up; nor had he any reason to believe that the owner knew
where to find it again. The prisoner meant to appropriate it to his
own use, when he picked it up. The day after, and before he had
disposed of it, he was informed that the prosecutor was the owner, and
had dropped it accidentally; he then changed it, and appropriated the
money taken to his own use. The jury found that he had reason to
believe, and did believe, it to be the prosecutor's property, befwe he
thus changed the note.
The learned Baron directed a verdict of guilty, intimating that he
should reserve the case for further consideration. Upon conferring
with Maule, J., the learned Baron was of opinion that the original
taking was not felonious, and that in the subsequent disposal of it,
there was no taking; and he therefore declined to pass sentence, and
ordered the prisoner to be discharged on entering into his own recogni-
zance to appear when called upon.
On the 30th of April, a.d. 1849, the following judgment was read
by Parke, B To prevent the taking of goods from being larceny, it
is essential that they should be presumably lost; that is that they
should be taken in such a place and under such circumstances, as that
the owner would be reasonably presumed by the taker to have
abandoned them, or at least not to know where to find them. There-
fore if a horse is found feeding on an open common or on the side of a
public road, or a watch found apparently hidden in a hay stack, the
taking of these would be larceny; because the taker had no right to
presume that the owner did not know where to find them, aud
consequently had no right to treat them as lost goods. In the present
case there is no doubt that the bank note was "lost." The owner did
not know where to find it; tlie prisoner reasonably believed it to be
SECT. X.] liffjina V. Thvrhoru.
277
lost; he had no reason to know to wli,,m it holonfrffl; and theroforo,
though he took it with the intent of taking not a partial or temporary
but the entire dominion over it, the act of taking did not, in our
opinion, constitute the crime of larceny. Whether the subsequent
appropriation of it to his own use by changing it, with the knowledgo
at that time that it belonged to the prosecutor, docs amount to that
crime, will be afterwards considered.
It appears, however, that goods which do fall within the category
of lost goods, and which the taker justly believes to have been lost,
may be taken and converted so as to constitute the crime of larceny,
when the party finding may be presumed to know the owner of
them, or there is any mark upon them, presumably known by him, by
which the owner can be ascertained. There are many reporter! cases
on this subject. Some where the owner of the goods may be presumed
to be known, from the circumstances under which they are found;
amongst these are mentioned the cases of articles left in hackney
coaches by passengers, which the coachman appropriates to his own
use, or a pocket book, found in a coat sent to a tailor to be repaired,
and abstracted and opened by him. In these cases the appropriation
has been held to be larceny. Perhaps these cases might be classed
amongst those in which the taker is not justified in concluding that
the goods were lost; because there is little doubt he must have believed
that the owner would know where to find them again, and he had no
pretence to consider them abandoned or derelict....
The appropriation of goods by the finder has also been held to be
larceny where the owner could be found out by some mark on them; as
in the case of lost notes, checks, or bills, with the owner's name upon
them.
This subject was considered in the case of Merry v. Greetiy
7 M. and W. 623.
The result of all the authorities is, that the rule of law on this
subject seems to be, that if a man find goods that have been actually
lost, or are reasonably supposed by him to have been lost, and appro-
priates them with intent to take the entire dominion over them, really
believing when he takes them that the owner cannot he found, it is not
larceny. But if he takes them with the like intent, but reasonably
believing that the owner can be found, it is larceny. In applying this
rule, as indeed in the application of all fixed rules, questions of some
nicety may arise. But it will generally be ascertained whether the
person accused had reasonable belief that the owner could be found,
by evidence of his previous acquaintance with the ownership of the
particular chattel, by the place where it is found, or by the nature of
278 Select Cafies on Crhnhuil Law. [paet ir.
the marks upon it. In some cases it would be apparent, in others
would appear only after examination. It would probably be pre-
sumed that the taker would examine the chattel as an honest man
ought to do, at the time of taking it; and if he did not restore it to the
owner, the jury might conclude that he took it, when he took complete
possession of it, animo furandi. The mere taking it up to look at it,
would not be a taking possession of the chattel.
To apply these rules to the present case. The first taking did not
amount to larceny; because the note was really lost, and there was no
mark on it or other circumstance to indicate then who was the owner,
or that he might be found, nor any evidence to rebut the presumption
that would arise from the finding of the note as proved, that he
believed the owner could not be found, and therefore the original
taking was not felonious. If the prisoner had changed the note or
otherwise disposed of it, before notice of the title of the real owner, he
clearly would not have been punishable. But after the prisoner was
in possession of the note, the owner became known to him, and he
then appropriated it, animo furandi ; and the point to be decided is
whether that was a felony.
Upon this question we have felt considerable doubt.
If he had taken the chattel innocently, and afterwards appropri-
ated it without knowledge of the ownei'ship, it would not have been
larceny ; nor would it, we think, if he had done so, knowing who was
the owner ; for he had the lawful possession in both cases, and the
conversion would not have been a trespass in either. But here the
original taking was not innocent in one sense; and the question is,
does that make a difference? We think not. It was dispunishable as
we have already decided ; and though the possession was accompanied
by a dishonest intent, it was still a lawful possession and good against
all but the real owner ; and the subsequent conversion was not there-
fore a trespass in this case more than the others, and consequently no
larceny.
We therefui'e think that the conviction was wrong.
SECT. X.] Regina v. Peters. 279
[Hut. not finding a lost article with likelihood, J'rom t/ie outstt
of discovering its oionerA
REGINA V. PETERS.
Gloucester Assizes. 1843. 1 Caurinotox ano Kiuwan 245.
The prisoner was indicted for stealing a golden chain, one Ijrcast-
pin, and one eye-glass and pin, the property of Henry Bulkeley.
It appeared that Mrs Bulkeley went into her garden, adjoining to
the house, to walk; and, on her return into the house, missed the articles
in question, which had been upon her dress when she went out walking.
The prisoner was employed about the premises on the day in question;
and, by the direction of the prosecutor, had walked through the
garden, in company with the gardener, immediately after Mrs Bulkeley
had returned into the house.... Mr Bulkeley caused the loss to be cried
the same evening and the following morning, and offered £2 reward to
any person who had found the articles. On the following morning,
the prisoner went to the crier and stated that he knew a person
who had found the things; and took the crier to his house, fetched
them down stairs and gave them to the crier, with directions to go to
Mr Bulkeley's with them, but not to deliver them up unless the reward
of £2 was paid. His wife, in his presence, said that she found them
in a street in Cheltenham, a quarter of a mile from the prosecutor's ;
and the prisoner, on two subsequent occasions, stated that he found
them in two other places, neither being the garden. . . .
RoLFE, B. ...If I drop a thing where there is no reasonable
means of finding out that it belongs to me, then, though I am
found out to be the owner, the party finding it would not be guilty
of felony if he converted it to his own use; though he would be liable
to an action of trover. But it is perfectly well known that, if a
person leave anything in a stage coach, if the owner can be found
by inquiry, the party finding the thing, and appropriating it to his
own use, is guilty of larceny. So if it is found in a street, and there
is any mark by which the owner can be discovered. So, in the
case where a gold ornament is found at the door of a house, it is
ridiculous to say that any person picking it up would not suppose that
it belonged to the owner of the house. There are two questions here.
First, did the prisoner pick the things up? Secondly, with what
intention did he take up the chain and take it to his own house ? The
picking it up might be the most innocent act in the world; but
what does he do with it? He takes it home. Did he or not take
it home with the intention of appropriating it to his own use?
280 Select Cases &n Criminal Law. [part ii.
Or did he take it home with the intention of finding the true owner?
If the latter, he is not guilty. If he took it up, and did not imme-
diately bring it to the prosecutor, in the hopes that, by coming next
day, he would get a present of £5, perhaps it might not amount to
a larceny. If he took it away with the intention to appropriate
it, and only restored it because the reward was offered, it is clear that
he is guilty of felony. Are you satisfied that he took it home, either
intending to sell it, or to get a reward if one was offered 1 If so, he
is guilty of larceny.
Verdict, Guilty.
\Taher claims the thing as his own.]
REX V. HALL.
Gloucester Assizes. 1828. 3 Caeeington and Payne 409.
Indictment for robbing John Green, a gamekeeper of Lord Ducie,
of three hare-wires and a pheasant. It appeared that the prisoner
had set three wires in a field belonging to Lord Ducie, in one of which
this pheasant was caught ; and that Green, the gamekeeper, seeing
this, took up the wires and pheasant, and put them into his pocket.
And it further appeared that the prisoner, soon after this, came up
and said: "Have you got my wires'?" The gamekeeper replied that
he had, and a pheasant that was caught in one of them. The prisoner
then asked the gamekeeper to give the pheasant and wires up to him,
which the gamekeeper refused ; whereupon the prisoner lifted up a
large stick, and threatened to beat the gamekeeper's brains out if he
did not give them up. The gamekeeper, fearing violence, did so.
Maclean, for the prosecution, contended, that, by law, the prisoner
could have no property in either the wires or the pheasant; and, as the
gamekeeper had seized them for the use of the lord of the manor,
under the statute 5 Ann. c. 14, s. 4, it was a robbery to take them
from him by A-iolence.
Vaughax, B. I shall leave it to the jury to say whether the
prisoner acted on an impression that the wires and pheasant were liis
property. For, however he might be liable to penalties for having them
in his possession, yet, if the jury think that he took them under a bonH
SECT. X.] Bex V. HnU.
2S1
fide impression that he was only getting back the possession of his own
property, there is no animus furandi and I am of opinion that the
prosecution must fail.
Verdict, Not guilty.
[See also Rex v. Knight, supra, p. 177.]
[Taker clairy^s the thing as his own.]
CAUSEY V. STATE.
Supreme Court of Georgia. 1887. 79 Georgia 564.
Indictment for stealing a bell.
Causey had been employed by a Mr Gunn to drive a milk-cart.
He bought a bell to be used in attracting customers ; and, upon being
discharged by Mr Gunn, he left this bell. Mr Gunn engaged a succes-
sor to drive the cart ; and this successor used the bell for some time.
On one occasion he left the cart in the street ; and Causey went to it
to get his bell. Not finding the driver, he took the bell and rang it
loudly for some time. No one came; and Causey then requested a
by-stander to tell the driver, when he came, that Causey had taken the
beU. The message was never delivered. Causey was prosecuted for
stealing the bell, and convicted He moved for a new trial,
Bleckley, C.J. The evidence was that Causey had left the bell as
the property of his employer Mr Gunn; and that Mr Gunn had
accounted to him for the value of it in settling their accounts for milk-
money. The question was whether that accounting really took place.
Causey had submitted at the trial an account book, kept in his way;
but it seems not to have been very intelligible. Mr Gunn thought
he had accounted for the price of the bell to Causey; but he may have
been mistaken.
The authorities are abundant that when one takes property under
a fair claim of right, it is not larceny; and publicity in the taking is
very powerful evidence to establish the bona fides of a claim of right.
There could hardly have been greater publicity than here; because
this was done in an open street near the heart of the city, and the
ringing of the bell was loud enough to be heard in adjacent streets.
He made a sort of bell-ringing proclamation that he was about to
resume his ancient possession, and he seemed to desire it to be known
and observed of all men. That is a very strong circumstance in
favour of the man's innocenca... We direct that the case be tried again.
2b2 Select Cases on Criminal Law. [part il
[^Taker claims thing as an equivalent for his ow7i.'\
REGINA V. BODEN.
Stafford Assizes. 1844. 1 Carrixgton axd Kirwax 395.
Assault with intent to rob. The prisoner was indicted for assault-
ing one Thomas Simcocks, with intent to rob him, on the 27th of
December, 1843, at Leek. It appeared that the father of the prose-
cutor had been at a fair at Congleton, some days before the day of the
alleged offence charged in the present indictment; and that a person,
had there come up to him and given him eleven sovereigns into his
hand, for the purpose of buying a horse, and that the prosecutor's
father had put the money into his pocket and refused to give it back.
The person who gave him the money followed him to an entry in the
town of Congleton; and there, in company with the prisoner, assaulted
him, and endeavoured to get the money out of his (the father's)
pocket. The prosecutor came up and interfered; and on his saying
that the person who had given his father the money was the man that
had robbed Cotterell at Leek fair, tliat person ran away. It further
appeared that the prisoner called at the prosecutor's father's house the
next morning, and demanded the eleven sovereigns; but the prosecutor's
father refused to give them to him, at the same time saying that he
would give the money to the man from whom he had received it, if he
would come and ask for it. It was proved that at Leek fair, on the
27th of December, 1843, the prisoner saw the prosecutor receive seven
sovereigns for a cow that he had sold; and followed the prosecutor, and
said, "Pay me the eleven sovereigns you owe me." He then knocked
the prosecutor down, and put his hand into the pocket of the prose-
cutor, where he had seen the sovereigns placed, but was prevented
from getting them, and the parties were separated.
Greaves, for the prosecution, in opening the case, stated that it was
•well settled that if a party, under an honest impression that he was
entitled to anything, took that thing away from another, it would not
amount to larceny, although, in reality, he had no right to it ; and he
conceived that the same rule might apply to robber}'. And therefore, if
the prisoner assaulted the prosecutor with the honest impression and
real belief that he had a right to get the sovereigns from him, he would
not be guilty of the offence charged ; although it was clear that, as the
prosecutor never received the sovereigns, and the sovereigns were not
the property of the prisoner, he had no real right at all to them. At
the conclusion of the evidence for the prosecution,
SECT. X.] Rerjina v. Boden. 283
Parkr, B., said, I think that there was too much semblance of a right
to claim the sovereigns, to justify our proceeding wilL the cu6e tor iho
felony. But there remains the assault.
\Taker claims a lien on the thitig.]
REGINA V. WADE.
Bury St Edmun'ds Assizes. 1869. 11 Cox .'>49.
John Wade was charged with larceny under the following circum-
stances. The prosecutor was a labouring man, and the prisoner a
travelling umbrella mender; and it appeared that on the 18tli of
November he accosted the wife of the prosecutor, asking her if she had
any umbrellas to mend. She replied she had; and he said he would do
it cheap — for two or three halfpence.
Accordingly he repaired it, and when done demanded nincpence
for his Labour. The umbrella had then been re-delivered to tlie prose-
cutor's wife, who refused to pay the demand. The prisoner declined to
take 2d., which was offered to him, but rushed upstairs, where the
umbrella had been deposited, and took it away with him.
[In reply to the prisoner, the wife denied that he offered to restore
the umbrella to its original condition.]
The prisoner, in defence, stated that he had no intention of stealing
it, but merely took it to secure being paid.
Blackburn, J., to the jury. The prisoner had a riglit to keep the
umbrella until he had been paid for the trouble he had been put to in
repairing it. The question for them to consider was, was he honestly
claimins: his right when he removed it from the house? If it was
honestly done, that would not be stealing; but, on tlie other hand, if
they were of opinion that it was a mere colourable pretence to obtjiin
possession, then it would be larceny. It did not matter whether any-
thing was due to him, if, at the time he took it, ho honestly intended to
hold it as a security tor his alleged lieix.
Not guilt/.
284 Select Cases on Criminal Law. [part ii.
Chapter VIII. The Intention.
\An intention to deprive the oioner of the possession only temporarily is
not sufficient.^
ANONYMOUS.
Olp Bailey. 1G98. East's Pleas of the Crowx 662.
Before Holt, C.J., and other Judges, it was found that A. assaulted
B. on the highway, with a felonious intent, and searched the pockets of
B. for money. But, finding none, A. pulled off the bridle of B.'s horse,
and threw it — and also some bread which B. had in panniers — about
the highway.
Upon conference with all the Judges, it was resolved that this
was no robbery.
[Stealing a ride is not stealing a horse."]
REX V. CHARLES CRUMP.
Worcester Assizes. 1825. 1 Carrington and Payne 658.
Indictment for stealing a horse, three bridles, two saddles, and
a bag, the property of Henry Bateman.
It appeared that the prisoner got into the prosecutor's stable, and
took away the horse and the other property all together; but that,
when he had got to some distance, he turned the horse loose, and pro-
ceeded on foot to Tewkesbury, where he was stopped whilst attempting
to sell the saddles.
Garrow, B., left it to the jury to say whether the prisoner had any
intention of stealing the horse. For if he intended to steal the other
articles, and only used the horse as a mode of carrying off the other
plunder more conveniently — and as it were, borrowed the horse for that
purpose — he would not be, in point of law, guilty of stealing the
horse.
Verdict, Not guilty of stealing the horse, but guilty
of stealing the rest of the property.
SECT. X.] Rcyhia v. Holloway. !2m5
\There mnsf he an intention to appropriate the thing in a manner whully
inconsistent with the rightful possessor a interest in it.'\
REGINA V. HOLLOWAY.
Crown Case Reserved. 1848. 1 r)ENiso\ 370.
The prisoner, William Holloway, was indicted at the General
Quarter Sessions, holden in and for the borough of Liverpool, for
stealing within the jurisdiction of tlie Court, one hundred and twenty
skins of leather, the property of Thomas Barton and another.
Thomas Barton and another were tanners, and the prisoner was
one of many workmen employed by them at their tannery, in Li\ erpool,
to dress skins of leather. The skins, when dressed, were delivered to
the foreman, and every workman was paid in proportion to and on
account of the work done by himself. The skins of leather were after-
wards stored in a warehouse adjoining to the workshop. The prisoner,
by opening a window and removing an iron bar, got access clandestinely
to the warehouse, and carried away the skins of leather mentioned in
the indictment, which had been dressed by other workmen. The
prisoner did not remove these skins fi'om the tannery, but they were
seen and recognized the following day at the porch or place where he
usually worked in the workshop. It was proved to be a common
practice at the tannery for one workman to lend work, that is to say,
skins of leather dressed by him, to another workman; and for the
borrower in such case to deliver the work to the foreman, and get paid
for it on his own account, as if it were his own work.
A question of fact arose as to the intention of the prisoner in
taking the skins from the warehouse. The jury found that the prisoner
did not intend to remove the skins from the tannery, and dispose of
them elsewhere ; but that his intention in taking them was to deliver
them to the foreman, and to get paid for them as if they were his own
work, and in this way he intended the skins to be restored to the
possession of his masters. They convicted him, under the direction of
the Court; but a case was reserved on the question whether, on the
finding of the jury, the prisoner ought to have been con\icted of
larceny.
Lowndes, for the Crown. ... Here the skins were taken wrongfully;
and though with a view of returning them to the master, it was not
until they had been first made the means of defrauding him ; therefore
they cannot be said to have been returned to him in the same state as
when taken. They had other incidents atUched to them by the
wrongful act of the prisoner, which incidents carried with them an
286 Select Cases on Criminal Laic. [part ii.
intent to deprive the owner of his property. The taking was clearly
a trespass ; it therefore was such a taking as to support a charge of
larceny, provided the object of the taker was to convert them to his
own use wrongfully. It clearly was so. The old authorities shew that
where there has been a fraudulent taking, and an intention on the part
of the taker to use the thing taken as his own and so wrongfully to
assert an entire dominion over the thing pro tanto, there is no necessity
that he should also intend to deprive the owner wholly of his property
for ever. It is true that where such intention exists, coupled with
a taking, every such act is a larceny ; but there may be a larceny with-
out such intention. Surely it would be a larceny to take a horse out of
A.'s stable with a view of using him for six months, and then returning
him to A. If it be not, what length of user on the part of the taker will
make the taking felonious ?...
Alderson, B. If a servant takes a horse out of his master's stable,
and turns it out into the road with intent to get a reward the next day
by bringing it back to his master, would that be larceny ?
Paeke, B. cited R. v. Phillips, 2 East, PI. C. ch. 16, s. 98, as
shewing that a wrongful taking for a temporary user was not larceny,
even though the takers there were found by the jury to be perfectly
indifferent whether the owner ever recovered his property or no, and
certainly to have had no intention of returning it to him themselves'.
*****
Parke, B. We are bound to sa}- that this is no larceny. The
books do not give a full definition of that crime ; East, P. C ch. 16, s. 2,
defines it with perhaps more accuracy than other writers to be " the
wrongful or fraudulent taking and carrying away by any person of the
mere personal goods of another from any place with a felonious intent
to convert them to his (the taker's) own use, and make them his
property, without the consent of the owner." But this definition needs
some addition ; the taking should be not only wrongful and fraudulent,
but should also be "without any colour of right." All the cases shew
that if the intention were not to take the entire dominion over the
property, that is no larceny. Ii. v. Phillips and iStrony, 2 East, PI. Cr.
^ [Editob's Note. The judge du-ected them to consider whether the prisoners
intended to make any further use of the horse than to ride it to the phice whither
they were going (33 miles from its stable), and then leave it "to be recovered by the
owner or not, as it might turn out"; and they found that no further use was
intended. One judge thought it nevertheless a larceny ; because there was no in-
tention to return the horse to the owner, but rather, so far as the prisoners were
concerned, to deprive him of it. But the others were unanimous that, on the
intent as found, there was only a trespass; though the facts would legally have
warranted the jury in finding a larcenous intent.]
SECT. X.] Reghia v. JToUovutif. 287
ch. 16, s. 98, is the earliest c;i.sc on tin; subject, hikI tlioro aro Dtherw lo
the same effect. Then there is the case of It. v. Webh, 1 Moo. C. C.
431, which is precisely the same as the present case. Therefore the
essential element of larceny is here wanting, viz., the iuleatiun to
deprive the owner wholly of his property.
The four other Judges concurred.
[Ignorance of law, thougJi it does not prevent an ordinary mens rea, may
prevent this complex mens rea from arising.^
REGINA V. REED.
Taunton Assizes. 1842. Carrington and Maushman 306.
The prisoner, Elizabeth Reed, was indicted for stealing a five-pound
note, and her husband for receiving it.
The daughter of the prisoners and another little girl, while walking
in the street at Taunton, saw a small piece of paper lying on the
ground, and the other girl directed the prisoners' daughter to pick it
up; which she did, and gave it to her companion. It was a five-pound
note. The prisoners' daughter, on returning home, told her mother
of the circumstance, who thereupon went to the house where the other
girl lived, and said to her, " Where is that note which our Mary picked
up?" Upon its being given to her, she went away with it, and gave it
to her husband, who converted it at once into money. When the note
was missed, and inquiry was made for it, both the prisoners denied all
knowledge of any of the above circumstances.
*****
Coleridge, J.... Ignorance of the law cannot excuse any person;
but, at the same time, when the question is with what intent a person
takes, we cannot help looking into his state of mind ; as, if a person
take what he believes to be his own, it is impossible to say that he
is guilty of felony. Elizabeth Reed might think that she had a right
to the note, in consequence of her daughter having picked it up ; and
if she have acted openly, you must say that she took the note from the
other little girl in ignorance of the continuing rights of the owner. It
is almost impossible to think that she supposed the owner to have
intentionally abandoned the note; but yet she might have thought that
her daughter, having first picked it up, had a right to it, and a right
288 Select Cases on Criminal Law. [part ii.
prior to that of the other girl who first saw it ; and, thinking so, she
might have gone and made the demand for it, as if she had said, " You
have Mary's note, give it up." Under these circumstances, she could
not be guilty of larceny. But tlien, the conduct of the parties subse-
quently to this is to be considered. His Lordship went through the
facts subsequent to the taking.
Verdict, Guilty.
[Contrast this case with Rex v. Bailey, sujyra, p. 29.]
\_A wrongful intention must exist at the time of the taking!^
REX V. HOLLOW AY.
Aylesbury Assizes. 1833. 5 Carrington and Payne 525.
The prisoner was indicted for stealing a gun from the prosecutor,
who was one of the gamekeepers of the manor of Beaconsfield.
The prosecutor met the prisoner and another man, whom he knew
to be poachers, on a part of the manor, and seized the prisoner ; his
companion came up and rescued him. The prisoner, on getting free,
wrested the gun from the prosecutor, and ran off with it. It was
proved that the next day the prisoner said he should sell the gun. It
was not afterwards found.
Vaughan, B., in summing up, said that the prisoner might have
imagined that the prosecutor would use the gun so as to endanger his
life ; and, if so, his taking it under that impression would not be
felony. But if he took it, intending at the time to dispose of it, it
would be felony.
The jury said that they did not think that the prisoner, at the
time he took the gun, had any intention of appropriating it to his own
use.
Vaughan, B. Then you must acquit him. It is a question
peculiarly for your consideration. If he did not, when he took it,
intend its appropriation, it is not a felony ; and his resolving after-
wards to dispose of it will not make it such.
Verdict, Not guilty.
SECT. X.] Regina v. RiUy. 289
\_Bat it is not necessary (hat the fuLl larcenous inti:/Uio*>
should exist then.^
REGINA V. RILEY.
Crown Cask Reserved. 1853. DnAnsr.T 149.
At the General Quarter Sessions of the peace for tlic county of
Durham, held at the city of Durham before Rowland Burdon, E.S'iuire,
chairman, on the 18th day of October, 1852, the prisoner was indicted
for having on the 5th of October, 1852, stolen a Iamb the property of
John Burnside.
On the trial it was proved that on Friday, the 1st day of October,
1852, John Burnside, the prosecutor, put ten white-faced lambs into
a held in the occupation of John Clarke, situated near to the town
of Darlington, On Monday, the 4th day of October, the pri.soner
went with a flock of twenty-nine black-faced lambs to John Clarke,
and asked if he might put them into Clarke's field for a night's keep,
and upon Clarke's agreeing to allow him to do so for one penny per
head, the prisoner put his twenty-nine lambs into the same field
with the prosecutor's lambs.
At half-past seven o'clock in the morning of Tuesday, the 5th day
of October, the prosecutor went to Clarke's field, and in counting Ids
lambs he missed one. The prisoner's lambs were gone from the field
also. Between eight and nine o'clock in the morning of the same day,
the prisoner came to the farm of John Calvert, at Middleton Saint
George, six miles east from Darlington, and asked him to buy twenty-
nine lambs. Calvert agreed to do so and to give eight shillings apiece
for them. Calvert then proceeded to count the lambs, and informed
the prisoner that there were thirty instead of twenty-nine in the flock,
and pointed out to him a white-faced lamb, upon which the prisoner
said, ' If you object to take thirty, I will draw one.' Calvert, however,
bought the whole of them, and paid the prisoner twelve pounds for them.
One of the lambs sold to Calvert was identified by the prosecutor
as his property, and as the lamb missed by him from Clarke's field.
Tliere was evidence in the case to shew that the pri.soner must
have taken the lambs from Clarke's field early in the morning, which
was thick and rainy —
The jury returned the following verdict :—" The jury say that at
the time of leaving the field the prisoner did not know that the hinib
was in his flock, and that he was guilty of felony at the time it wa-^
pointed out to him."
The prisoner -was then sentenced to six months' hard labour.
19
290 Select Cases on Criminal Law. [part ii.
LiddeU,ior the prisoner. The conviction is wrong on three grounds.
First, the original taking being when the lamb left the field, the
question for the jury was whether the lamb was taken by the prisoner
animo furandi, or by mistake; the verdict of the jury amounts to a
findin^T that it was taken b}' mistake. Secondly, the chairman mis-
directed the jury. He told them, that though they might be of
opinion that the prisoner did not know that the lamb was in his flock
until it was pointed out to him, yet in point of law the taking
occurred when it was so pointed out to the prisoner, and sold by him,
and not at the time of leaving the field. But in order to fconstitute
larceny he should have told the jury that something more was neces-
sary; and the jury not having found it the Court will not now intend
it. Thirdly, the finding of the jury does not amount to a verdict
of guilty.
Pollock, C.B. Suppose a traveller at an inn in packing up six
pieces of anything packed up a seventh with it by mistake in his
portmanteau. He does not find out the mistake till he goe.s to a
distance, and then converts it to his own use. "When does he take it?
Surely when he discovers his mistake and resolves to appropriate it to
himself animo furandi.
Liddell. Here the prisoner had the lamb in his possession before
the time of the alleged taking.
Pollock, C.B. What do you mean by the term "possession"?
Liddell. He had such a possession as would have enabled him to
maintain trespass. If it be said that the prisoner took the lamb when
it was pointed out to him on the road, then the jury have not found
that he knew, or had the means of knowing, at the time, who the true
owner was. The lamb was, in fact, animal vagrans, without an owner,
and within the rule laid down by Parke, B., in Heg. v. Thurbom,
1 Den. C. C, 388. It was without an owner; — it had no mark upon it
to indicate the owner's name; for it was marked T., while the initial
of the prosecutor's name was B. It was an estray, to take which at
common law was no larceny. The law in cases of taking by mistake
is stated in 1 Hale P. C. 505. If the sheep of A. stray from his flock
to the flock of B., and B. drive them along with his own flock, and by
mistake and without knowing it or taking lieed of the difierence, shear
them, it is no felony. But if B. knew them to be the sheep of another
person, and tried to conceal the fact ; if, for instance, finding another's
mark upon theni, he deface it, and put his own mark upon lliem, this
would be evidence of a felony. When then was the felony committed
here? Was it when (-he lamb left the possession of the true owner ?
It is submitted that the question here is, what was the prisoner's
SECT. X.] llegina v. Uiley. 2"J1
intent when the lamb left the field. His subsequent conduct is only
evidence of that intent.... It is quite evident that before the sale of the
lamb the prisoner might have maintained an action of trespass, upon
his possessory title, although the property was in the true owntT.
If the lamb had strayed and mixed with the lambs of the prisoner, he
would be in the innocent possession of it while he drove it six miles
along the road; and then the rule laid down in Thristles case, 1 Den.
C. C. 502, would apply "that where a chattel comes into the possession
of a party without the animus furandi, in the first instance, the sub-
sequent appropriation is no larceny."
Williams, J. Suppose no animus furandi, and that a civil action
is brought for the trespass. The whole would form a continuous trans-
action. In the first instance take it that here there is no animus furandi
when the lamb is taken from the field; but the trespass continues, and
then there is the animus furandi ; does it not then become felony?
Pollock, C.B, The difficulty in the case is, when can it be said
that there was a taking?
Parke, B. The prisoner must have driven them away. In doing
so he committed a trespass; which began when he left the field.... He
became a trespasser, though not a felonious trespasser ; but when he
afterwards sold the lamb the trespass became a felony.
Liddell. Is not this like the case where the prisoner had possession
of a chattel dispunishably ?
Parke, B. No. That was not a case of trespass. That was
a case where trover might have been maintained ; where the chattel
was 'found,' and the person who found it had a good title against all
the world....
Pollock, C.B. We are all of opinion that the conviction in this case
is right. The distinction between this and the case of Reg. v. Thristle,
1 Den. C. C. 502, is this. If a man rightfully gets possession of an
article without any intention at the time of stealing it, and afterwards
misappropriates it, the law holds it not to be a felony. In that case
a man had delivered his watch to a watchmaker to regulate it, and the
watchmaker afterwards disposed of it for his own use It may reason-
ably 1)0 said not to be a violation of any social duty for a man who
finds a lost article to take it home for the purpose of finding out the
true owner; and if he does this honestly in the first instance, and
afterwards, though he may have discovered the true owner, is seduced
into appropriating it to his own use, he is not guilty of larceny, tliough
he does wrong. So in LeigKs case, 2 East P. C 694, it appeared that
the prosecutor's house was on fire, and that the prisoner assisted in
saving some of his goods, and took some of them home to her lodgings,
19—2
292 Select Cases on Criminal Law. [part ii.
but next morning denied that she had them in her possession. It was
suggested that she originally took the goods with an honest intent,
that of assisting in saving her neighbour's property from the fire.
She was found guilty; but the judges, as it appeared that she originally
took the goods merely from a desire of saving them for and returning
them to the prosecutor, and that she had no evil intention till after-
wards, held that the con\dction was wrong. There the oii^inal taking
was not wrongful; indeed it \\ as right, for she took possession of the
goods under the authority of the true owner. In all these cases the
original possession was not wrongful. But in the case now before the
Court the prisoner's possession of the lamb was from the beginning
wrongful. Here the taking of the lamb from the field was a trespass ;
or if it be said that there was no taking at that time, then the moment
he finds the lamb he appropriates it to his own use. The distinction
between the cases is this : if the original possession be rightful, sub-
sequent misappropriation does not make it a. felony; but if the original
possession be rcrongful, though not felonious, and then a man disposes
of the chattel, animo furandi, it is larceny.
[The other four Judges concurred.]
Conviction aflBrmed.
[ Where a thing is delivered under a IVlutual Mistake, it is not yet settled
whether the time q/" physical delivery, or that of the discovery of the
mistake, is to he legally regarded as being the time of taking.]
REGINA V. ASHWELL.
Crown Case Reserved. 1885. L.R. 16 Q.B.D. 190.
Case stated by Denman, J.
At the Assizes for the county of Leicester in January, 1883.
Thomas Ashwell was tried for larceny of a sover<-ign, the moneys of
Edward Keogh.
Keogh and Ashwell met in a public-house on the evening of the
9th of January. At about 8 p.m., Ashwell asked Keogh to go into the
yard, and when there requested Keogh to lend him a shilling, saying
that he had money to draw on the morrow, and that ho would then
repay him. Keogh consented, and putting his hand in his i)ocket
pulled out what he believed to be a shilling, but what was in fact
a sovereign, and handed it to Ashwell, and went home leaving Ashwell
SECT. X.] Regina v. Ashvell. 293
in the yard. About 9 the same evening, Ashwell obtained change for
the sovereign at another public-liouse.
At 5.20 the next morning, Keogh went to Ash well's house and
told him that he had discovered the mistake, whereupon Ashwell falsely
denied having received the sovereign, and on the same evening ho f^ave
false and contradictory accounts as to where he had become possessed
of the sovereign he had changed at the second public-house on the
night before. But he afterwards said, "I had the sovereign, and spent
half of it, and I shan't give it him back because I only asked him to
lend me a shilling"....
The jury found that the prisoner did not know that it was a
sovereign at the time he received it; but said they were unanimously of
opinion that the prosecutor parted with it under the mistaken belief
that it was a shilling; and that the prisoner having, soon after he
received it, discovered that it was a sovereign, could have easily restored
it to the prosecutor, but fraudulently appropriated it to his own use
and denied the receipt of it, knowing that the prosecutor had not
intended to part with the possession of a sovereign but only of a
shilling. They added that if it were competent to them consistently
with these findings and with the evidence to find the prisoner guilty,
they meant to do so.
Sills, for the prisoner.... Admitting that if the prisoner had known at
the time it was handed to him that the coin was a sovereign there would
be a larceny (for in such case trespass would lie), that is not the present
case, for some time elapsed before he discovered what the coin was. A
necessary ingredient of the crime of larceny at common law, is that there
must be a taking invito domino. If the prisoner induces the delivery
by trick or otherwise, then there is such a taking, but it is otherwise if
the mistake as to what is delivered is common to both : Heg. v. Prince^;
Reg. V. Middleton". The case of giving a cabman a sovereign by
mistake for a shilling, which was much argued there, is exactly the
present case. There was here an intention to deliver the particular
coin which the prosecutor held in his hand, although he did not before
handing it over ascertain its value. A mere mistake as to value does
not make any difierence in the delivery. There can have been no
finding here, because there was no loss; and there was no bailment,
because there was no mandate.
.1. K. Lloyd, for the prosecution. Where property comes into the
hands of a transferee by mistake as to the subject-matter transferred,
there is no delivery which will prevent a subsequent appropriation of
it from being a felonious taking; and a trespass is committed when, on
1 Law Eep. 1 C. C. 150. « Law itep. 2 C. C. 33.
294 Select Cases on Orimincd Law. [part ii.
the discovery of the mistake, the holder of the chattel wrongfully
appropriates it to himself. The delivery which can be set up as an
answer to a charge of larceny must be a delivery with intention to pass
the property. Delivery induced by fraud, by threats, or by accident,
could not be so set up....
If a delivery under a mistake as to the subject-matter is of any
validity, it can only be treated as delivery for a limited purpose.
When the coin delivered turned out to be something else than a shilling,
the identical coin should have been returned....
Cave, J. It is, undoubtedly, a correct proposition, that there can
be no larceny at common law unless there is also a trespass, and that
there can be no trespass where the prisoner has obtained lawful
possession of the goods alleged to be stolen; or, in other words, the
thief must take the goods into his possession with the intention of
depriving the owner of them. If he has got the goods lawfully into his
possession before the intention of depriving the owner of them is
formed, there is no larceny. Applying that principle to this case, if
the prisoner acquired lawful possession of the sovereign when the coin
was actually handed to him by the prosecutor, there is no larceny, for
at that time the prisoner did not steal the coin; but, if he only
acquired possession when he discovered the coin to be a sovereign, then
he is guilty of larceny, for at that time he knew that he had not the
consent of the owner to his taking possession of the sovereign as his
own, and the taking under those circumstances was a trespass.
It is contended tliat, as the prosecutor gave and the prisoner
received the coin under the impression that it was a shilling and not
a sovereign, the prosecutor never consented to part with the possession
of the sovereign, and consequently there was a taking by the prisoner
without his consent. But to my mind it is impossible to come to the
conclusion that, at the time when the sovereign was handed to him,
the prisoner, who was then under a bona fide mistake as to the coin,
can be held to have been guilty of a trespass in taking that which the
prosecutor gave liim. It seems to me that it would be equally logical
to say that the prisoner would have been guilty of a trespass if the
prosecutor, intending to slip a shilling into the prisoner's pocket with-
out his knowledge, had by mistake slipped a sovereign in instead of
a shilling. The only point which can be made in favour of the prose-
cution, so far as I can see, is that the prisoner did not actually take
possession until he knew what the coin was of which he was taking
possession, in which case, as he then determined to deprive the
prosecutor of his property, there was a taking possession siniultane-
SECT. X.J Regina v. Ashivell. 295
ously with the formation of that intention. Had the cr)in been a
shilling, it is obvious that the prisoner would have gained the property
in and the possession of the coin when it was handed to him by Uu-
prosecutor. As tlicre was a mistake as to the identity of the coin no
property passed, and the question is whether the possession passed
when the coin was handed to the prisoner, or when the prisoner first
knew that he had got a sovereign and not a shilling.
There are cases which it is important to consider. The first is
Cartwright v. Green ', which, however, differs slightly from the piesent,
because in that case there was no intention to give the defendant
Green either the property in or the possession of the guineas, but only
the possession of the bureau, the bailor being unaware of the existence
of the guineas. If the bailee in that case had, before discovering the
guineas in the secret drawer, negligently lost the bureau with its
contents, it is difficult to see how he could have been made responsible
lor the loss of the guineas. In Merry v. Green^ the facts were similar
to Carlicright v. Green^, except that the bureau had been sold to the
defendant. In that case Baron Parke says, that though there was
a delivery of the bureau to the defendant, there was no delivery so as
to give a lawful possession of the purse and money in the secret drawer.
If these cases are rightly decided, as I believe them to be, they
establish the principle that a man has not possession of that of the
existence of which he is unaware. A man cannot without his consent
be made to iucur the responsibilities towards the real owner which arise
from even the simple possession of a chattel without further title; and
if a chattel has, without his knowledge been placed in his custody, his
rights and liabilities as a possessor of that chattel do not arise until
he is aware of the existence of the chattel, and has assented to the
possession of it....
In my judgment a man cannot be presumed to assent to the
possession of a chattel ; actual consent must be shewn. Now a
man does not consent to that of which he is wholly ignorant ; and I
think, therefore, it was rightly decided tliat the defendant in Merry v.
Green," was not in possession of the purse and money until he knew of
their existence. Moreover, in order that there may be a consent,
a man must be under no mistake as to that to which he consents ; and,
I think, therefore, that Ashwell did not consent to the possession of
the sovereign until he knew that it was a sovereign. Suppose that,
while still ignorant that the coin was a sovereign, he had given it away
to a third person who had misappropriated it, could he have been
made responsible to the prosecutor for the return of 205.? In my
1 8 Veb. 405. ■■ 7 M. and >V. 623.
296 Select Cases on Criminal Law. [part ii.
judgment he could not. If he had parted with it innocently, while
still under the impression that it was only a shilling, I think he could
have been made responsible for the return of a shilling and a shilling
only, since he had consented to assume the responsibility of a possessor in
respect of a shilling only. It may be said that a carrier is responsible
for the safe custody of the contents of a box delivered to him to Vie
carried, although he may be ignorant of the nature of its contents ; but
in that case the carrier consents to be responsible for the safe custody of
theboxandits contents whateverthey may hajipen tobe; and, moreover,
a carrier is not responsible for the loss of valuable articles, if he has
given notice that he will not be responsible for such articles unless
certain conditions are complied with, and is led by the consignor to
believe that the parcel given to him to carry does not contain articles
of the character specified in tlie notice : Batson v. Donovan '. In this
case Ash well did not hold himself out as being willing to assume the.
responsibilities of a possessor of the coin whatever its value might be;
nor can I infer that at the time of the delivery he agreed to be
responsible for the safe custody and return of the sovereign. As,
therefore, he did not at the time of deliver}' subject himself to the
liabilities of the borrower of a sovereign, so also I think that he is not
entitled to the privileges attending the lawful possession of a borrowed
sovereign. "When he discovered that the coin was a sovereign, he
was, I think, bound to elect, as a finder would be, whether he would
assume the responsibilities of a possessor; but, at the moment when
he was in a position to elect, he also determined fraudulently to
convert the sovereign to his own use; and I am therefore of opinion
that he falls within the principle of Regina v. Jliddleton' and was
guilty of larceny at common law.
For these reasons I am of opinion that the conviction was right.
* ♦ * * *
Stephen, J.,..Asliwell received the sovereign innocently; though he
dealt with it fraudulently an hour afterwards, when he became aware
of its value. The inference that he committed no felony at common
law appears to me to follow of necessity.
Tiiere are two ways in \\hich it is sought to avoid this inference.
It is said, first, that the delivery, being made under a mistake, passed
neither the property in the sovereign nor the right to a possession of it;
and that the prisoner must 1)6 regarded as having taken it, not wlien
he accepted it under a mistake as to its value, but when knowing its
value he determined to appropriate it to himself, or when he did so
appropriate it by getting it changed and keeping the change. It is
1 4 13. and A. 21. * Law Hep. 2 C. C. 45.
SECT. X.] Regiiui v. AshwelL 207
also said that even if no oflfenco at common law was committed, the
prisoner was guilty of larceny as a bailee under the 3rd section of the
Larceny Act. I am unable to concur witli either of these views.
The first view is, I think, contrary to principle, because it evadeR
by a legal fiction the principle that a fraudulent appropriation cdii-
sequent upon an innocent taking is not larceny. The guilt of the
prisoner would follow easily and inunediately from the principle that
such a taking is larceny, and this second principle is in effect substi-
tuted for the first by an artificial interpretation either of the word
"possession," or of the word "taking." If the word "possession" is
chosen to be interpreted, this is done by explaining it to mean some-
thing beyond actual control over the thing possessed, namely, control
coupled with knowledge, which may or may not exist. If the word
"taking" is chosen to be interpreted, it is in this case interpreted to
mean not an actual physical taking, but a subsequent change of mind
relating back to such physical taking. I know of no authority for
either of these fictions. The word "possession" is indeed used in many
senses, some of them highly artificial, but this is a bad reason for
adding a new artificial meaning to it. Its plain meaning in this case
is the reception of the coin by Ashwell from Keogh. The interpre-
tation suggested appears to me to be one against which there is express
authority, which I now proceed to examine.
The cases which set the matter in the clearest light are those which
relate to the finding of lost property, particularly those which have
been decided in modern times....
If the present case is to be decided against the prisoner, we shall
have the following result: If A. finds a sovereign in the road not
knowing to whom it belongs, and appropriates it to himself after
discovering the owner, he is not guilty of theft; but if A. innocently
receives a sovereign from the owner believing it to be a shilling, and
appropriates it to himself after discovering its value, he is guilty of
theft. This can hardly be the law.
When Ashwell received the coin and put it in his pocket, and for
an hour afterwards, he did not know that Keogh was the owner of it in
any sense whatever. He believed it to be his own, and this on the
reasonable ground that Keogh had lent it to him, thereby passing to
him an absolute property in the coin itself. When he discovered its
value he had the lawful possession of it, at all events as against every
one except Keogh ; and if his subsequent conversion of it to his own
use amounted to a felonious taking, Eeyina v. Thurborn ^ was wrongly
decided....
♦ 1 1 Den. C. C. 387.
29b Select Cases on Criminal Law. [part u.
The question, therefore, reduces itself to this : What difference
was there between the taking by a finder and the reception by Ashwell
ot the coin given him by Keogh? Whatever difference there was
appears to me both in law and in common sense to be in Ashwell's
favour. A finder must know that the property he finds is not his,
whoever may be the o^vner of it. Ashwell for an hour after he
received it reasonably believed that the coin which he received was his
own. I cannot see how any taking could be more innocent, and to say
that for the first hour his possession was Keogh's possession, and that
when he determined to convert it he was guilty of a felonious taking,
is expressly to contradict Regina v. Preston^y and is, I think, incon-
sistent with the reasons for all the other decisions referred to....
I may here notice one point which was raised in argument. It
was said that the actual time of taking could not be the point at
which the guUt or innocence of a finder must be determined, because
in most cases a short time must elapse between the actual taking of
a note or coin, the discovery of its nature or value, and the determi-
nation consequent upon that discovery to appropriate it; and this, it
was said, shews that the time to be considered is the time of acquiring
knowledge of the property taken, and not the time of taking. If a
man picks up a purse containing money, some seconds must usually
pass before he can open the purse and discover, and determine to
appropriate, the money. I think, however, that for legal purposes it
is neither possible nor desirable to attempt to go into such a refine-
ment as this. If a man finds a purse, picks it up, opens it, finds
money in it, and thereupon determines to keep it for himself, it
appears to me that the whole process ought to be regarded as one
action, taking place at one time; as for many purposes the fractional
parts of a day are not regarded by the law. If the examination were
delayed for a substantial time, I think the question for the jury would
be whether at the time of the taking the prisoner intended to keep
what he had found, conditionally upon its turning out upon exami-
nation to be worth his while to do so, and whether at the time of taking
the goods he had the means of knowing the owner.
Suppose, for instance, a man found a bank-note bearing the owner's
name indorsed on it ; suppose he put it in his pocket without examina-
tion, and ten minutes afterwards examined it, and after that kept it, it
might be a fair inference that when he took it up he meant to examine
it and to keep it if it was worth keeping. If by any means he could
convince the jury that he took it up only to look at it, and changed his
mind ten minutes afterwards, h'e would, I think, be entitled to be
1 2 Den. C. C. 353.
SECT. X.] Reglna v. Ashivell. 299
acquitted; but a jury would be likely to require strong evicU-uce to
induce them to believe in such a change of mind. In the present case
it is admitted that the reception of the coin was quite innocent, and
that the dishonest change of mind occurred upon the discovery by
Ashwell of the mistake which was common to himself and Keogh.
The case of Merry v. Green ^ seems to suggest the possibility of
a kind of double finding; for instance, a man tinds a pocket-book
on one day, and some days afterwards examines it and finds in it
a bank-note with the owner's name. The judgment in Merry v. Green
seems to suggest that the finding of the bank-note would take place
when the pocket-book was opened, not when it was found, and that
though the possession of the pocket-book might be innocent tlie appro-
priation of the note might be felonious. However this may be, it has
no application to the present case.
*****
*****
Lord Coleridge, C.J....I assume it to be now established law that
where there has been no trespass, there can at common law be no
lai-ceny. I assume it also to be settled law that where there has been
a delivery — in the sense in which I will explain in a moment — of a
chattel from one person to another, subsequent misappropriation of
that chattel by the person to whom it has been delivered will not make
him guilty of larceny, except by statute, with which I am not now
concerned. But then it seems to me very plain that delivery and receipt
are acts into which mental intention enters; and that there is not in
law any more than in sense a delivery and receipt, unless the giver and
receiver intend to give and to receive respectively what is respectively
given and received. It is intelligent delivery, as I think, which the
law speaks of; not a mere physical act from which intelligence and
even consciousness are absent. I hope it is not laying down anything
too broad or loose, if I say that all acts, to carry legal consequences,
must be acts of the mind; and to hold the contrary, to hold that a man
did what in sense and reason lie certainly did not, that a man did in
law what he did not know he was doing and did not intend to do — to
hold this is to expose the law to very just but wholly unnecessary
ridicule and scorn. I agree with my Ijrother Stephen that fictions are
objectionable, and I desire not to add to them. But it seems to me,
with diffidence, that he creates the fiction who holds that a man does
what he does not know he does and does not mean to do ; not he who
says that an act done by an intelligent being for which he is to be
responsible is not an act of that being unless it is an uot of his
1 7 M. and W. 023.
300 Sdect Cases on Criminal Latv. [part ii.
intelligence. In this case, therefore, it seems to me, there was no
delivery of the sovereign to the prisoner by Keogh, because there was
no intention to deliver, and no knowledge that it had been delivered
[Seven Judges were for affirming the conviction, and seven foi
quashing it: accordingly, the rule of the Court being 'praesumitui' pro
negante,' the conviction stood affirmed.
Three months later, in the case of The Queen v. Flowers, L.R.,
16 Q.B.D. 646, it was stated, on behalf of the seven judges who had
affirmed the conviction, that they did so on the ground that the facts
of Ash well's case did not shew an innocent reception of the sovereign;
but they had no intention of questioning the rule of law that, when
a chattel has been innocently received, the sul>sequent fraudulent
appropriation of it will not amount to larceny.]
REGINA V. HEHIR
Irish Crown Case Reserved. 1895. Irish L R. '95, 2 Q.B. 709.
Denis Hehir was tried before Palles, L.C.B. and a common jury for
the larceny of a ten-pound note, of the goods and chattels of one
John Leech. It was shewn at the trial that Leech owed Hehir for
work done the sum of £2. 8s. 9d. For the purpose of paying this sum,
Leech handed the prisoner nine shillings in silver and two bank-notes,
each of which both Leech and the prisoner believed at the time to be
a £1 note. One of those notes was in fact a £10 note. The prisoner
left, taking away the two notes with him. Within twenty minutes
afterwards. Leech discovered his mistake, and went in search of the
prisoner ; whom he found within half an hour after he had given him
the notes. Leech told the prisoner that he had given him a £10 note
instead of £1. The prisozier alleged that he had already changed both
the notes. There was evidence that, at the time when the prisoner
first became aware that the note was for £10 (which was a substantial
period after it had been handed to him by Leech), he fraudulently and
without colour of right, intended to convert tlie said note to his own
use, and to permanently deprive the said John Leech thereof; and that
to effectuate such intention the said prisoner shortly afterwards changed
the said note and disposed of the proceeds thereof.
The Judge requested the opinion of the Court upon the question,
" Whether he ought to have directed a verdict of acquittal by reason of
SECT. X.] Regina v. Hehir. 301
the prisoner not having h;ul the animus furandi wlien Leech li.mded
him the £10 note?"
Madden, J.... If the handing of the note by Leecli to tlie prisoner,
under the circumstances of this case, amounted to a delivery, trans-
ferring legal possession, no fraudulent intention on the part nf the
prisoner, subsequently formed, although carried into eilect by actual
conversion of the note to his own use, would suffice to constitute the
crime of larceny at common law.... Was there, then, a delivery to which
any legal consequences can be attached ? There was a physical transfer
of a certain chattel from Leech to the prisoner; and the ordinary trans-
actions of mankind could not be carried on if such a transfer were not
prima facie a delivery of the chattel, with a consequent change of lef^al
possession. But although men are presumed to know what they are
doing, and intend the consequences of their acts, the contrary may be
proved ; and we must deal with this case on the assumption that when
Leech transferred this chattel to the prisoner they both behoved it to
be something diflerent from what it actually was, and that their inten-
tion was to transfer a piece of paper representing one sovereign, not
a piece of paper representing ten times that amount of gold
I am of opinion that a transfer made under such circumstances can
pass neither property nor legal possession, I do not mean to say that
in all cases where delivery of a chattel is made under a mistake common
to both parties to the transaction it is inoperative to transfer legal
possession ; for example. ..A. may deliver to B., in discharge of a trifling
obligation, an old battered copy of Shakspeare printed in 1623, both
innocently believing at the time that being old, full of errors and mis-
prints and badly spelled, it would only fetch a couple of shillings at an
auction. Suppose B. to sell it to a collector for several hundreds of
pounds and to appropriate the proceeds, he would not be guilty of
larceny, inasmuch as there was an intelligent delivery of the chattel, as
such, though under a mistake as to its value.... But the mistake in the
present case — (and in The Queen v. Ashivell) — was one not of value but
of identity. Here the chattel transferred had no intrinsic value.
What is present in the mind on the delivery of a bank-note is not the
paper, per se, but the money which it represents, and into which it is
convertible. It would take some argument to persuade me that one
sovereign is the same identical thing in rerum natura as a pile of ten
sovereigns, and I think the notes by which they are represented are
essentially different also. The case would appear plainer if exchange
were carried on here, as in some countries, by means of shells or
precious stones, each essentially diflerent in nature as well as in con-
ventional value, and if one of these stones had been mistaken for
802 Select Cases on Criminal Law. [part ii.
another. But, looking at the substance and reality of the transaction
as present to the minds of both parties, I think mistake between a £10
note and a £\ note is one of precisely the same character.
If I am right in regarding the mistake as one of identity, and not
merely of value, it appears to me clear upon the general principles of
our law, and indeed of all jurisprudence, that a consent given, a con-
tract entered into, or an act done, under, and in consequence of, such
a mistake can have no legal consequences whatever. This would clearly
be the law with regard to a contract for sale of a chattel, where
a mistake occurred as to the identity of the purchaser : Gundy v,
Lindsay^; and to import a different principle into our criminal law
would, in my opinion, instead of tending to simplification, introduce
confusion and contradiction into the administration of justice There
can be no intelligent delivery of a chattel or consent to its transfer
when both parties either are ignorant of its existence or believe it to
be something different from what it is in fact. In either case the
dominiis remains invitus, for the element of intelligent volition is wanting.
The question remains, assuming the dominun to be invitus, and the
delivery to be inoperative to effect a change of legal possession, was
there any felonious taking, or any taking at all, having regard to the
circumstance that such taking, if it had any existence, occurred while
the note was in the physical possession of the prisoner?...
In The Queen v. Ashwell the circumstance that the alleged felonious
taking was not contemporaneous with the actual physical taking,
appears to have largely affected the judgment of Mathew, J. He says:
"The argument on behalf of the Crown means that though the
defendant did not take in point of fact, he ought by a fiction to be
treated as having done so in point of law, in order that he may be
punished as a thief " (p. 205). But this is not the only instance in
which a felonious taking, amounting to a trespass, may be effected by
a person already in physical possession of a chattel. It is sufficient to
instance the case of a servant feloniously appropriating an article which
is in his custody under circumstances sulficient to render his possession
the legal possession of his master. The taking in such a case appears
to partake quite as much of a legal fiction as in The Queen v. Ashwell,
and in the present case. But, if we are to disregard legal subtleties,
would it not, to the ordinary mind, savour even more of legal fiction,
anfl appear less consonant with common sense, to say that Hehir 7iev':'r
took £10 without the consent of Leech, than to say that he took £10
when he conceived and carried into effect the idea of fraudulently
appropriating the note to his own use?
1 3 A, C. 4u9.
SECT, x] Regina v. Hehir. .SO"
It is well said by Mathew, J., that it is desirable that tlm rult^s by
which guilt and innocence are to be determined should be susceptible
of ready comprehension and easy exposition. The rule in accordance
with which the present case ought in my opinion to be decided is
certainly capable of easy exposition, and I believe of ready comprehen-
sion. It may be thus stated : A man to whom a chattel is delivered
under a mistake as to its identity, does not thereby acquire legal
possession : and if he subsequently discovers the mistake, and there-
upon fraudulently misap[)ropriates it to his own use, he is guilty of
larceny. A rule so short and simple appears to me to be equally
adapted to the comprehension of the average thief and to the moral
sense of the honest citizen : and believing it to be in accordance with
principle and authority, I am of opinion that the conviction should
stand.
Andrews, J. In my opinion the conviction ought to be quashed.
The two independent questions of the property in the £10 note, and
the possession of it, ought to be carefully kept distinct. No doubt the
pi'operty did not pass to the prisoner; but we have to deal with an
entirely distinct question, viz. the possession of it. Now, it appears to
me manifest that when the owner of the £10 note handed it to the
prisoner, he intended to give the prisoner the possession of the thing
he handed him. If he had known it was a £10 note, doubtless he
would not have given it; but in my opinion, that only shews that his
intention arose from a mistake, and does not shew that the intention
did not exist. He, in fact, openly and visibly, handed the actual
paper to the prisoner, knowing that he was handing it to him; and the
prisoner took it, knowing that he was taking it. In neither case can
the fact of the knowledge which existed be annihilated by the absence
of the knowledge that it was a £10 note, or by the mistaken belief
that it was a £1 note. I am wholly unable to agree with the proposi-
tion that a man cannot take, and be in lawful possession of, a thing
which he believes to be of a different quality or value from its real
quality or value. His acceptance of the possession is entirely distinct
from his acceptance of the property, and may obviously exist without
any acceptance whatever of the property. Nor can I at all agree that
if a man takes into his possession, without reservation, a chattel
openly handed to him, the quality and value of which he believes to be
different from what they really are, his possession can in any rational
sense be said to commence only when, at some subsequent time (to
which no limit is assigned), he becomes aware of its quality and value.
In the interval the taker is, in fact, knowingly in possession of the
chattel, and why if he received it innocently from the owner, is not
30-t Select Cases on Criminal Law. [part ii.
that a le^al possession? Unquestionably it is not an unlawful posses-
sion, and therefore it must come to this that, though he received it
unconditionally and had lawfully retained it in his sole custody in the
interval, he was not in possession of it at all — a strange proposition, as it
seems to me, to find anywliere, but passing strange in the criminal law
in which, above all, words ought not to be divorced from their natural
and proper meaning, nor refinements adopted which fritter that mean-
in <^ away.... I think it would be a fiction, such as should have no place in
the criminal law, to ignore the actual taking, and to make (in the
lano-uaf^e of Mr Justice Talfourd) "a mere movement of the mind"
amount to a taking. I think that the note in question was both given
to the prisoner, and taken by him, intelligently, in tiie only sense in
which that word is material to the question before us, (which does not
at all necessarily include a knowledge of the actual quality or value of
the thing which was in fact given); and that at the time the prisoner
received the note he got lawful possession of it innocently, in the
largest sense of the word, and without anything in the remotest degree
resembling a trespass ;... by the voluntary act of the owner, not
feloniously and without the consent of the owner....
[Judgments were delivered by all the nine Judges present; five
holding that the conviction should be quashed, and four upholding it.
The conviction was accordingly quashed.]
SECTION XI.
EMBEZZLEMENT.
[The common law rule which, by regarding an act of Taking as
essential to larceny, rendered it impossible to take criminal proceed-
ings against a Possessor who dishonestly appropriated the thing bailed
to him (see above, p. 222), applied not only to Bailees, strictly so-
called, but even to servants who, on behalf of their masters, had
received goods from third parties. The criminal lawyers refused to
adopt in such cases the rule of the commercial lawyers which treated
the servant's possession as being, constructively, the master's pos-
session.]
[See Rex v. Dingley, supra, p. 177.]
SECT. XL] Rex V. Bazchi/. 305
REX V. BAZELEY.
Crown Case Rkserved. 1799. Leach 835.
At the Old Bailey, Joseph Bazeley was tried for feloniously stealing
a banknote for £100. [He was a cashier in the bank of Messrs Esdaile
and Hamniett, his dut}' being to receive and pay at the counter.
A customer paid in £137, to liis own account, in cash and notes,
including a £100 note. The prisoner received from him the £137,
placed £37 of it in the proper receptacles, but put the £100 note into
his pocket. Later in the day, he paid away this note in discharge of
an acceptance of his own. The jury convicted the prisoner. The
Court reserved for the opinion of the Judges the question whether the
act amounted in law to a larceny or was merely a fraudulent breach
of trust.]
Const, for the prisoner. Bazeley received this note, by the permis-
sion of the prosecutors, whilst it was passing from the customer's
possession into theirs; and, having been thus intercepted in transit,
it is clear that it never came into the possession of the prosecutors. . . .
The law will not, under such circumstances, consider the master to
have a 'constructive' possession of the property, in a criminal case;
for such a possession arises by a mere implication of law, and it
is an established rule that no man's life shall be endangered by any
implication
Fielding, for the Crown, insisted... that as the customer paid the
notes at the counter in the banking house of the prosecutors, of which
Bazeley was merely one of the servants, the payment to him was in effect
a payment to them, and his receipt vested the property eo insinnti
in their hands, and gave them the legal possession of it.... He cited
Bex V. Abrahat, Leach 824, and Hex v. Spears, Leach 825, to shew
that a servant may be guilty of larceny, upon the principle that the
possession of the servant is to be considered as the possession of the
master.
On consultation among the Judges some doubt was at first enter-
tained. But at last all assembled agreed that it was not felony,
inasmuch as the note was never in the possession of the prosecutors :
thougli it would have been otherwise if the prisoner had deposited it
in the drawer, and had afterwards taken it (Chipchase's case, Leach
699), and they thought that this was not to be differed from the cases
of Hex V. Waite, Leach 28, and Bex v. Bull, Leach 841, which turned
on this consideration— that the thing was not taken by the prisoner
out of the possession of the owner ; and here it was delivered into the
possession of the prisoner. That although to many purposes tlie note
20
SOG Select Cases on Criminal La a: [part ii.
was in the actual possession of the masters, yet it was also in the
actual possession of the servant, and that possession not to be
impeached, for it was a lawful one.
[In consequence of this case the statute 39 Geo. III. c. 85 was
passed, which is now replaced by s. 68 of the Larceny Act, 1861 (24
and 25 Vict. c. 96), viz. — "Whosoever, being a clerk or servant (or
being employed for the purpose or in the capacity of a clerk or servant)
shall fraudulently embezzle any chattel... which shall be... taken into
possession by him for, or in the name, or on the account of, his master...
shaU be deemed to have feloniously stolen the same from his master...
although such chattel... was not received into the possession of such
master... other wise than by the actual possession of... the person so
employed."]
Chapter I. Who is a Servant?
[See the Anonymous case, supra, p. 216.]
[If an agent is not bound to obey the iJrinctpaVs orders, he is
not his servant.^
THE QUEEN v. NEGUS.
Crown Case Reserved. 1873. L.R. 2 C.C.R. 34.
Case stated by the Assistant Judge of the INIiddlesex Sessions.
The prisoner was indicted for embezzling £17 as clerk and servant
to Roape and others.
The prisoner was engaged by the prosecutors to solicit orders for
them, and he was to be paid by a commission on the sums received
through his means. He had no authority to receive money; but if any
was paid to him he was forthwith to hand it over to his employers.
He was at liberty to apply for orders whenever he thought most con-
venient, but was not to employ himself for any other persons than the
prosecutors.
Contrary to his duly he applied for payment of the above sum, and
having received it he applied it to his own use, and denied, when
asked, that it had been paid to him.
SECT. XI.] TIte Queen v. Neyas. 807
The prisoner's counsel contended that the prisoner was not a clerk
or servant within the statute, but the learned Judge refused to stop the
case, and directed the jury to lind him guilty.
/''. F. Lewis, for the prosecution. Reg. v. Bowers ' somewhat
rescn)bles the present case, and is an authority in favour of the
prisoner ; but there the commission agent carried on a retail trade for
himself at a shop, and so could not be deemed a clerk or servant of the
merchants who supplied coal for him to sell.
[BoviLL, C.J. And here the prisoner might apply for orders when-
ever he thought most convenient.]
So might tlie traveller in Reg. v. Bailey^; he was nevertheless held
to be clerk or servant of his employers.
[Blackburn, J. For he was under their control, having to devote
his whole time to the service.]
The stipulation that the prisoner was not to employ himself for
any other persons than the prosecutors shews that they had euutrol
over him.
[BoviLL, C.J. ISTot at all. He might go away to amuse himself
whenever he liked.]
BoviLL, C. J.... Generally speaking, I should say that the question
whether a person is a clerk or servant depends on so many con-
siderations that it is one to be left to the jury, as it is extremely
difficult for the Court to come to a satisfactory conclusion upon such
a matter. Much depends on the nature of the occupation in which the
individual is engaged, and the kind of employment. But we have to
see if there was enough evidence to shew that the prisoner here was
a clerk or servant. I think that that fact is not sufficiently made out.
What is a test as to the relationship of master and servant ? A test used
in many cases is, to ascertain whether the prisoner was bound to obey
the orders of his employer, so as to be under his employer's control; and
on the case stated there does not seem sufficient to shew that he was
subject to the employers' orders, and bound to devote his time as they
should direct. Although under this engagement with them, it appears
he was still at liberty to take orders, or to abstain from doing so, and
the masters had no power to control him in that respect. Where there
is a salary, that raises a presumption that the person receiving it is
bound to devote his time to the service; but when money is paid by
commission a difficulty arises, although the relationship may still exist
where commission is ])aid, as in ordinary cases of a traveller, and in
Reg. v. Tlte'^, and the other case cited. But in either case there may
1 Law Hep. 1 C. C. 41. - 12 Cox Cr. C. 56.
» Leigh and Cave, Cr. C. 29 j 30 L, J. (-M.C.) 142.
20—2
308 Select Cases on Criminal Law. [pakt ii.
be no such contrul, and then the relationship does not exist. All the
authorities referred to seem to shew that it is not necessary that
there should be a payment by salary— for commission will do— nor
that the whole time should be employed, nor that the employment
should be permanent,— for it may be only occasional, or in a single
iustauce— if, at the time, the prisoner is engaged as servant. The facts
before us do not make out what the prosecution was bound to prove,
viz., that the prisoner was clerk or servant.
Bramwell, B. This conviction ought to be quashed unless we can
see that the prisoner, on the facts stated, must have been clerk or
servant within the meaning of the Act of Parliament. I am of
opinion that on the facts we cannot do so. Looking to principle we
find that the statute was intended to apply — not to cases where a man
is a mere agent, but — where the relationship of master and servant, in
the popular sense of the term, may be said to exist. Erie, C.J., in
Reg. V. Bowers says, the cases decide " that a person who is employed
to get orders and receive money, but who is at Kberty to get those
orders and receive that money when and where he thinks proper, is
not a clerk or servant within the meaning of the statute." I think
that is perfectly good law, consistent with all the authorities, and,
applied hei-e, it shews that the prisoner was not clerk or servant within
the definition there given.
Blackbuen, J. I am of the same opinion. The test is very much
this viz., whether the person charged is under the control and bound
to obey the orders of his master. He may be so without being bound
to devote his whole time to this service ; but if bound to devote his
whole time to it, that would be vei-y strong evidence of his being under
control. This case differs in nothing from the ordinary one of a
commission agency, except in the sole statement that the prisoner was
not to work tor others. But I do not tliink that circumstance by
itself alone enables us to say that he was a servant of the prosecutor.
Archibald, J., concurred.
HoNYMAN, J. I agree. The question was not left to the jury
to decide, and I cannot satisfy myself that the relationship of masters
and servant certainly existed between the prosecutors and the prisoner.
It does not appear that the prisoner was bound to obey every single
lawful order. Possibly the masters might tell him to go somewhere,
and he might justly refuse.
Conviction quashed.
SECT. XI ] The Queen v. Foullcs. 3u9
[^But a man may be a servmit though he is under no contract
thai binds him to continue nerviiKj.j
THE QUEEN v. FOULKES.
Crown Case Reserved. 1875. L.R. 2 C.C.R. ino.
[Indictment for embezzlement of two sums of £100 each; for each
sum there was a count describing it as the property of his employers,
the Local Board of Whitchurch, and a further count describing it as
the property of his master, Charles Foulkes.]
Charles Foulkes was the prisoner's father; and was the salaried
clerk of the Whitchurch Local Board.... In the absence of his father,
the prisoner acted for him at the meetings of the Local Board; and
assisted him when present at them. Prisoner was not appointed or
paid by the Local Board. There was no evidence that he was ijaid any
salary by his father..,. Money was raised by the Board on mortgage of
the local rates The course of business was, that prisoner received at
his father's office the money from the mortgagees, in exchange for the
mortgages, and paid it into the Whitchurch and Ellesmere Bank (who
were the treasurers of the board) to an account called the "market
account." In the course of this employment he embezzled and appropri-
ated to his own use the two sums of money mentioned in the indictment.
It was objected by counsel for the prisoner that he could not be con-
victed on the first two counts of the indictment, as he was not a clerk
or servant of the board, nor employed by the board in that or any
other capacity; and that he could not be convicted on the third or
fourth counts, as there was no evidence that he was the clerk or
servant of his father, or was employed by him in that capacity, beyond
the fact that he assisted his father, and as the moneys embezzled were
not the moneys of Charles Foulkes, but of the Local Board. The
prisoner was convicted and sentenced, but the learned Judge respited
the execution of the sentence till afrer the decision of the Court on
this case.
Rose, for the prisoner. The prisoner could not properly be con-
victed of embezzlement. To constitute embezzlement by a person
"being a clerk, or servant, or being employed for the purpose or in the
capacity of a clerk or servant " there must be a contract of service of
some kind express or implied. In the present case there was none;
for the prisoner was in no sense in the employment of the Local Board,
and the services he rendered to his father were mere voluntary ser\iccs,
310 Select Cases on Criminal Law. [part ii.
not rendered in pursuance of any contract. [He cited Rex v. Burton'^',
Rex V. Nettleton-; Reg. v. Bowers^; Reg. v. Tyree*; Reg. v. Turner'^;
Reg. V. Cullum^ ', Reg. v. Negus''.^
No counsel appeared for the prosecution.
CocKBURN, C.J. I think there was evidence on which the jury
might well find that the prisoner either was a clerk or .servant, or
was employed as a clerk or servant. The father held various offices ;
and the prisoner, his son, in consequence of his father's illness, or for
other reasons, did the duties which the father would otherwise have
had to do himself or to employ a clerk to do. It is true there was no
contract binding him to go on doing those duties. But the relation of
master and servant may well be terminable at will ; and wliile the
prisoner did act he was a clerk or servant. The second question is,
whether there was an embezzlement. I think there was. TJie money
was t-o be received by the father, though received for the Local Board.
He was the proper custodian of the money, and the son received it for
him. There was, therefore, evidence upon both points.
Bkamwell, B. I am of the same opinion. If the prisoner had not
l^een the son of the man for whom he acted, and had not lived with
him, it is abundantly evident that he would have been a clerk or
servant, and would have been entitled to payment upon a quantum
meruit. Then what difference can his being a son make? It may
afiect the nature of his remuneration ; but nothing else. With regard
to the money, the father might have had to account for it; but he was
entitled to receive it from the son. Therefore there was an embezzle-
ment.
*****
Brett, J. The prisoner undertook to do things for his father
which a clerk does for his master, and to do them in the way a clerk
does them. Now, assuming that there was no contract to go on doing
those things, still as long as he did them with his father's agreement,
lie was bound to do them with the same honesty as a clerk, because he
was employed as a clerk.
Pollock, B. If it had boen necessary to say absolutely that the
prisoner was a clerk or servant, I should have hesitated. But I think
the words "employed as a clerk or servant," are wider, and that there
is evidence to bring the case within them.
Conviction affirmed.
1 1 Moo. Cr. C. 237. " 1 Moo. Cr. 0. 20. » Law Kf]). 1 C. C. 41.
* Law Eep. 1 C. C. 177. ^ 11 Cox Cr. C. 551.
« Law Rep. 2 C. C. 28. ' Siqna, p. 30G.
SECT. XI.] Regina v. Cullum. 311
Chapter II. What can be Embezzle ii
\_A servant can embezzle only what he Jcas received as servant,]
[AS^ee Regina v. Foulkes, supra, p. 309.]
[Not what he has merely earned with master's tools.]
REGINA V. CULLUM.
Crowx Case Reserved. 1873. L.R. 2 C.C.R. 28.
Case stated by the Chairman of the West Kent Sessions.
The prisoner was indicted, as servant to George Smeed, for stealing
i62, the property of his master.
The prisoner was employed by Mr Smeed, of Sittingbourne, Kent,
as captain of one of Mr Smeed' s barges.
The prisoner's duty was to take the barge with the cargo to London,
and to receive back such return cargo, and from such persons, as his
master should direct.... By direction of Mr Smeed, the prisoner took
a load of bricks to London. In London he met Mr Smeed, and asked
if he should not on his return take a load of manure to Mr Pye, of
Caxton. Mr Suieed expressly forbade his taking the manure to
Mr Pye, and directed him to return with his barge empty to Burham.
Notwithstanding this prohibition, the prisoner took a barge load of
manure from London down to Mr Pye, at Caxton, and received from
Mr Pye's men £4 as the freight. It was not proved that he professed
to carry the manure or to receive the freight for his master. The
servant who paid the £4 said that he paid it to the prisoner for the
carriage of the manure, but that he did not know for whom.... In
answer to the manager's inquiries, the prisoner stated that he liad not
brought back any manure in the barge from London, and he never
accounted for the £4 received from Mr Pye for the freight for the
manure. The jury found the prisoner guilty, as servant to Mr Smeed,
of embezzling £2. The question was whether, on the above facts, the
prisoner could be properly convicted of embezzlement.
No counsel appeared for the prisoner.
312 Select Cases on Criminal Law. [part ii.
E. T. Smith (with him Moreton Smith) for the prosecutiun. The
prisoner received this freight either "for," or "on account of," his
master or employer, and tl)erefore is within the terms of 24 and 25
Yict. c. 96, s. 68'. The words, "by virtue of such employment," which
were in the repealed statutes relating to the same offence, have been
advisedly omitted, in order to enlarge the enactment and get rid of the
decisions on the former enactments.
[Blackburn, J. How can the money here be said to have been
received into the possession of the servant so as to become the property
of the master ?]
The prisoner was exclusively employed by the prosecutor. With
his mastei''s barge he earned, and in the capacity of servant received,
£4 as freight, which, on receipt by him, at once became the property of
his master : Rex v, Hartlej'^.
[Blackburn, J. But in this case the servant was disobeying orders.
Suppose a private coachman used his master's carriage without leave,
and earned half-a-crown by driving a stranger, would the money be
received for the master, so as to become the property of the latter ?]
Such coachman has no authority to receive any money for his
master ; the prisoner, here, was entitled to take freight.
[BoviLL, C. J. He was expressly forbidden to do so on this occasion.]
Can it be said that he may be guilty of embezzlement, if, in obedi-
ence of orders, he receives money, and j^et not guilty of that crime if
he is acting contrary to his master's commands %
Bramwell, B. The wrong committed by the prisoner was not
fraudulent or wrongful with respect to money, but consisted in the
improper use of his master's chattel. The offence is, as I pointed out
during argument, only that which a barge-owner's servant might be
guilty of, if, when navigating the barge, he stopped it, allowed persons
to stand upon it to view a passing boat-race, charged them for so doing,
and pocketed the money they paid to him. There is no distinction
between that case and this, save that the supposititious case is more
evidently out of the limits of the statute....
Blackburn, J.... I cannot see how this was the master's property,
or that the servant had authority to carry anything in this barge but
the cargo he was directed to convey. He was actually foibidden to
load this barge on the return voyage; he did load it, and \ery im-
properly earned money by tlie use of it; but in what sense he can
be said to have received this sum for the use of his master I cannot
-understand. The test of the matter would ically be this — if the person
^ Sujira, p. aOG. 2 Hu^g. and lly. lau.
SECT. XI.] Reglna v. CkIIkih,. 813
to whoni the manure belonged had not paid for tlie carriage, could the
master have said, "There was a contract with you, which you have
broken, and I sue you on it"? There would have b<'en no such con-
tract, for the servant never assumed to act for his master; and on tliat
ground his act does not come within the statute. I think that in no
case could he have been properly convicted under the Act unless the
money became that of the master.
*****
Conviction (quashed.
\0r hy selling master's property withoiit authority!]
REGINA V. WILSON.
Central Criminal Court. 1839. 9 Carrington and Payne 27.
Indictment for embezzlement of 4s. 6o?., the property of William
Phillipps.
It was the duty of the prisoner to go round and take orders from
customers, and to enter them, on his return to the shop in the evening,
in the day or order book, and also to receive moneys in payment of such
orders; but he had no authority whatever to take, or to direct the
delivery of, any goods from the shop. On the 20th of March,
Mr William Crachnell, one of Mr Phillipps's customers, gave the
prisoner, Edmund L. Wilson, an order for two gallons of mixed pickles,
and 14 lb, of treacle, which order was entered by him in the order book
as for the pickles only. An invoice for the pickles, pursuant to the
entry, was made out by Mr Phillipps's brother, and given to the carman
Michael; but he delivered Mr Crachnell the pickles, and 141b. of
treacle. The sum charged for the pickles was 6s. Qd.; and Michael
entered the treacle at the foot of the invoice at 4s. 6o?. The prisoner
Edmund afterwards received the v.liole amount, viz. lis.; but paid
over to Mr Phillipps ^s. 6d only.
The Recorder. I have conferred with Mr Justice Patteson, who
concurs with me in the opinion I was inclined to entertain of this ques-
tion ; and, on his suggestion, I may put the case in this form, — that
the prisoner, Edmund Wilson, does not receive the 4s. M. for or on
accovmt of his master, but contrary to, and in broach of, his duty
towards that master. I may also liken the case to that of two servants
— ^one of whom has authority to sell, and the other not, but mert'Iy to
314 Select Cases on Criminal Law. [part n.
receive money ; if the one who has no authority to sell introduces him-
self behind the counter, and sells his master's goods, putting the money
into his own pocket, that is clearly a stealing, for he sells and receives
the money contrary to his authority ; and he cannot be said to have
been employed and intrusted as clerk and servant, and to have received
the money by virtue of such employment, where the act is done con-
trary to that employment. In this case, the servant having authority
to send out goods to the amount of 6s. 6c7., puts up goods to the amount
of lis., his intention being to put 4s. ^d. into his own pocket. The
time never arrives when he receives that " on account of " his master,
for all that he does is adverse to, and in fraud of, the interest of his
master.
Verdict, Not guilty.
\It is otherivise if the sale, though dishonest, was authorised.]
REX V. HOGGINS.
Crown Case Reserved. 1809. Russell and Ryan 145.
The prisoner was tried before Mr Justice Bayley, at the Lent
Assizes, for the borough of Leicester, in the year 1809, on an indictment
on the 39 Geo. III. c. 85, for embezzlement.
The prisoner worked for Burbidge and Co., who were turners ; and
was paid according to what he did. It was part of his duty to receive
orders for jobs, to take the necessary materials from his master's stock,
to work them up, to deliver out the articles, and to receive the money
for them ; and then his business was to deliver the whole of the money
to his masters, and to receive back at the week's end a proportion of it
for working up the articles. The jobs were commonly paid for as soon
as they were executed, it being a ready money part of the business.
On the 27th of January, 1809, the prisoner received an order from
one Jonathan Mallett for six dozen of coffee-pot handles. The order
was given to him in his chai-acter of servant to Burbidge and Co. He
took the wood for the handles from their stock, and turned them on
their premises, and with their machinery. He then delivered them to
Mr Mallett, and received the price, which was three shillings, but
he concealed the whole transaction from Burbidge and Co. and kept the
whole money.
SECT. XI.] Rex V. Hoggins. 315
His own share of the price would have been a third, viz. one
shilling.
The learned Judge doubted whether this was within the Act, or
whether it was not rather a case of fraudulently concealing the order,
and embezzling the masters' materials and using their machinery to
execute it; but as the point was considered of extensive importance, he
did not state his doubts to the jury. They found the prisoner guilty ;
but the prisoner was let out on bail, and judgment was respited till the
following Assizes.
In Easter term, 29th of April, 1809, at a meeting of the Judges,
they all agreed that the conviction was right.
\Not money which he has obtained by cashing master's forged cheque.'\
REGINA V. AITKEN.
Central Criminal Court. 1883. Sessions Papers xcvii. 336.
[Indictment for embezzling three several sums of £16. 19s. bd.,
£6. 10s. lid., and £11. 15s. 2d., the property of Sarah Berry.
The prisoner acted as book-keeper to the prosecutrix, who carried
on the business of an engraver.
The prosecutrix usually paid the petty disbursements of the busi-
ness out of its current earnings; but when these were not sufficient she
then made the payments out of her banking account, and told Aitken
of them, that he might enter them in a day-book, which also recorded
the receipts. This book was made up once a week. When signing
cheques she sometimes left the amounts blank, and Aitken then filled
them up, and entered the amounts in the day-book. The prisoner was
proved to have filled up three cheques for the sums specified in the
indictment, without being authorised by his mistress to do so ; though
it did not clearly appear whether she had previously signed them, or
whether he had forged the signatures. He cashed them ; but he never
entered them in the day-book ; and he did not hand over the money to
his mistress.]
The Recorder (Sir Thomas Chambers, Q.C.) considered that as
the prisoner did not receive the money from the bank in his capacity of
a servant, but on forged cheques, there was no embezzlement.
Xot guilty.
316 Select Cases on Criminal Law. [pakt ii.
\It is otherwise if he obtained the vioney by cashing muster's stolen
c/ieque.]
REGINA V. GALE.
Crown Case Reserved. 1876. L.R. 2 Q.B.D. 141.
At the Quarter Sessions for the borough of Liverpool, James Edward
Gale was tried upon an indictment consisting of two counts, in the first
of which the prisoner was charged with having, on the 19th of May,
1874, when a clerk and servant to the London and Lancashire Fire
Insurance Company, Limited, emhezzled £400, the property of his said
masters ; and in the second of which he was charged with having, when
in the same capacity, and on the same day, embezzled £'200, also the
property of his said masters.
The evidence in support of the charge, so far as the same is
material, was as follows : The said Company's head office is in Liver-
pool. There are branch offices at Manchester, Glasgow, and elsewhere.
The prisoner was the head manager of the Company, and was their
clerk and servant. In ordinary course he opened all letters and
received all remittances sent to the head office, and handed the re-
mittances to the cashier, who kept the ordinary books under the
superintendence of the prisoner as manager ; and those books were from
time to time submitted to, and checked by, Mr Blenham, the Company's
accountant at Liverpool. It frequently happened that the managers of
the provincial offices remitted cash or cheques to the prisoner as chief
manager, which it was the duty of the prisoner to haiid on receipt to
the cashier, and in the case of cheques it was the duty of the prisoner
to indorse them if they were payable to his order, and they were then
paid into the Company's bankers by the cashier, and accounted for in
the books.
On the 19th of May, 1874, the prisoner received on account of the
Company by post from Glasgow a cheque dated the 18th of May, 1874,
for £400, drawn by the manager of the Glasgow branch upon the
Commercial Bank of Scotland, payable to the prisoner's order. On the
same day the prisoner also i-eceived on account of the C(jmpany, by post
from Manchester, a cheque for £200, dated the 19th of May, 1874,
drawn by the manager oi the Manche.ster branch upon the Manchester
and County Bank, Limited, payable to the prisoner's order.
The prisoner did not hand over either of these cheques to the
cashier, or inform him or anyone else of their receipt, except that he
acknowledged the receipt of them to the Glasgow and Manchester
managers respectively.
SECT. XI.] Reyiua v. Gale. .'{IT
On the same day, the 19th of May, the prisoner indorsed and cashed
both the cheques through private friends of liis own, who gave him the
cash and paid the cheques into their own banks. Later in the day, the
prisoner paid £600 in bank notes and gold, which was probably the
produce of the cheques, to the cashier of the Company, saying that he
wished it to go against his salary, which was then overdrawn to that
amount. The cashier, supposing the money to be the prisoner's own,
received it for him, and handed back to the prisoner I. O. U.s for
the amount which he had received from the prisoner in respect of the
overdraft —
The prisoner never accounted for either the cheques or the money.
At the close of the case for the prosecution, counsel for the prisoner
submitted that the prisoner could not be properly convicted of em-
bezzling either of the sums charged in the indictment, inasmuch as the
cheques were sent to the prisoner payable to his order and required his
indorsement, and the pi-isoner was entitled to cash the cheques and
receive the cash which w^as paid to him in respect of them ; and, there-
fore, there was no embezzlement by him of the said sums or either of
them. It was also submitted that there was no embezzlement, because
the identical money received for the cheques was paid to the cashier,
although it was so paid as the prisoner's own money, and in discharge
of so much of his own overdraft. . . .
The jury convicted the prisoner. The question for the Court was
whether there was evidence of embezzlement which the Recoi'der was
justified in leaving to the jury.
Torr, for prisoner.... Secondly, there is no embezzlement unless the
money be received " for, or in the name of, or on account of, the
master." That must at least mean that the servant purports to receive
it on account of the master; which was not so here. Thirdly, there
must be an intention to depri\;' ihe master of the money permanently.
Here the prisoner paid it over to the cashier.
CoCKBURN, C.J....The difficulty arises from the fact that, instead of
cashing the cheques at the bank, the prisoner obtained money for them
from friends of his own, who, having gi\en him the money, paid the
cheques to their own bankers. Now, the prisoner is liable under the
statute if he received the money on account of his masters. Mr Torr
ingeniously suggests that he cannot have done so, because the persons
who gave him the money knew nothing of his masters. But the ques-
tion is not whether those persons paid on account of his masters, but
whether he received on account of his masters. And he did so because
it was his duty to pay over the proceeds at once, in whichever way he
received them. It is the same case as if, being on his way to cash the
318 /Select Cases on Criminal Law. [part ii.
cheques, he had met a friend in the street who cashed them for him, to
save him the trouble of goir.g to the bank. The prisoner, then, having
received the money on account of his masters, and having dealt with it
as he did, with the intention of appropriating it to his own use, was
rightly convicted of embezzlement.
The other four Judges concurred.
Conviction aflBrmed,
[And it must not be from his master, directly or indirecUy^
that he has received it.^
[Receipt through fellow-servant from master.]
REX V. MURRAY.
Crown Case Reserved. 1830. 1 Moody 276.
The prisoner was tried before T. Denman, Esq., Common Serjeant,
at the Old Bailey Sessions in June 1830.
The indictment stated that the prisoner, being a clerk in the employ
of A., did, by virtue of such employment, receive and take into his
possession the sum of £3 for and on account of the said master, and
did afterwards fraudulently and feloniously embezzle 10s., part of the
sum above mentioned ; and further stated that the prisoner did
feloniously steal, take, and carry away from the said A. the said sum
of 10s. of the moneys of the said A. The prisoner was proved to be
a clerk in the employ of A.; he received from another clerk £3 of A.'s
money that he might pay (among other things) for inserting an ad-
vertisement in the Gazette. The prisoner paid 10s. for the insertion;
and charged A. 20s. for the same, fraudulently keeping back the
difference, which he converted to his own use.
The prisoner's counsel contended that this evidence did not support
the indictment.
The learned Common Serjeant directed the jury to find the prisoner
guilty, if they thought the evidence proved the facts above set forth,
which they did; and he therefore now respectfully requested the opinion
of the learned Judges, whether the facts sustained the indictment.
At a meeting of the Judges after Trinity term, 1830, at which
all the learned Judges were present, this case was considered. They
thought the case not within the statute, because A. had had possession
of the money by the hands of his other clerk ; and that the convictiou
was therefore wrong.
SECT. XI.] Reyiua v. Masters. oiy
\Receipt through fellow-servant from stranger.]
REGINA V. MASTERS.
Geown Case Reserved. 1848. 1 Denison 332.
Orlando Masters, a clerk in the employment of William Hulliday,
was tried at the Michaelmas Quarter Sessions, a.d. 1848, for the
borough of Birmingham, on an indictment charging him with em-
bezzling three sums of money received by him for and on account of his
master, the prosecutor.
It appeared in evidence, that the course of business adopted by the
house was for the customers to pay moneys into the hands of certain
persons, who paid them over to a superintendent; he accounted with
the prisoner, and paid over such moneys to him ; and the prisoner, in
his turn, accounted with cashiers, and paid over the moneys to them ;
he having no other duty to perform with respect to such moneys than
to keep an account which might act as a check on the superintendent
and the cashiers, their accounts being in like manner checks upon him.
These four parties to the receipt of the moneys were all servants of the
prosecutor.
\A' ith respect to the three sums in question, it was proved that they
passed in due course from the customers, through the hands of the
immediate receivers and the superintendent, to the prisoner; who wil-
fully and fraudulently retained them.
On behalf of the prisoner it was objected, on the authority of
Bex V. Murray (supra, p. 318), that the moneys having, before they
reached the prisoner, been in the possession of the prosecutor's servants,
did in law pass to the prisoner from his master ; and that conseijuently
the charge of embezzlement could not be sustained —
For the Crown it was answered, that the prisoner having inter-
cepted the moneys in their appointed course of progress to the master,
this case was not governed by that of Bex v. Murray, where the prior
possession of the master having been as complete as it was intended to
be, the money might reasonably be considered as passing from the
master to the prisoner, whereas, in the present case, it was in course of
pa-sage through the prisoner to the master.
The Recorder left the case to tlie jury, reserving the point.
The prisoner was convicted and sentenced to twelve months' im-
prisonment, with hard labour.
320 Select Cases on Criminal Law. [part ii.
This case was argued before Pollock, C.B., Patteson, J., Maule, J.,
Cresswell, J., Erie, J., on the 11th of November, 1848, at the tirst
sitting of the Court created by stat. 11 and 12 Vict, c, 78.
Miller, for the prisoner. It seeuis clear that there was no tortious
taking by the prisoner : his taking was lawful in the first instance.
His duty was to receive the money and pass it on to his master.
*****
Pollock, C.B. The Court ai-e unanimously of opinion that no
further argument is necessary. This case is quite different from that
of Rex V. Murray. Because there the master had had possession of
the money by the hands of anotlier serAant; and when it was given
to the prisoner b}' that servant to be paid away on account of the
master, it must be deemed in law to have been so given to the
prisoner by his master : the fraudulent appropriation of it, being thus
a tortious taking in the first instance, was not embezzlement but
larceny. But here the money never reached the master at all : it was
stopped by the prisoner on its way to him. The original taking was
lawful, and, therefore, the fraudulent appropriation was embezzlement.
\^And he must not yet have delivered it over to his master.^
REX V. SULLENS.
Crown Case Preserved. 1826. 1 Moody 129.
[Indictment at Essex Assizes. The first count charged the prisoner
with larceny of a £b note ; the second, with larceny of £5 worth of
silver coin.]
It appeared in evidence that Thomas Nevill, the prisoner's master,
gave him a £5 country note, to get change, on tlie oaid 25th of
September ; that he got cluuige, all in silver, and on his obtaining the
change he said it was for his master, and that his master sent him.
The prisoner never returned.
The jury found the prisoner not guilty on the first count, but
guilty on the second count.
SECT. XI.] Rex V. Sullens. 321
In Eastor term, 1826, the Judges met and considered this case,
and held that the conviction was wrong ; because, as the master never
had possession of the change, except by the bands of the prisoner, he
was only amenable for Embezzlement.
l^N'o embezzlement of things which prisoner had already delivered
to his maater.^
REGINA V. HAYWARD.
Shrewsbury Assizes. 1844. 1 Cariungton and Kirwan 518.
[The indictment contained a count for embezzlement of forty pounds
weight of straw, and a further count for the larceny of the same.]
It was proved that, previously to the 24th of July, 1844, Allen
Boyd, the prosecutor, had ordered some straw of INIessrs Morris, and
•was to send for it ; and that, on the 24th of July, he sent the prisoner
(whom he then employed at 20d. a day) to Messrs Morris's to fetch it.
The straw was then delivered by Mr John INIorris to the prisoner, who
took it into the prosecutor's court-yard, and put it down at the stable-
door; and the prisoner then went to the prosecutor to ask him to send
some one to open the hay-loft, which was over the stable, that the
straw might be put in. The prosecutor sent his niece, who opened the
hay-loft, and saw the prisoner put a part of the straw into the hay-loft,
and take the rest away in a direction towards the Plough public-house
at Wliitchurch ; where it was proved that the prisoner sold it.
TiNDAL, C.J. (in summing up). If the prisoner took away thi;?
straw to the public-house with a felonious intent, it was a stealing of it
from his master, Allen Boyd. His putting the whole quantity of
straw at the stable-door, on his master's premises, was a delivery of it
to his master ; and his taking a part of it away afterwards, if it was
done with a felonious intent, would be a larceny of the property of
his master, and not an embezzlement. The only question, therefore,
is, whether you think there was a felonious intent.
[Editor's Note. The weight being so light, Hayward doubtles.s took it on his
back. Had he taken it home in a vehicle helonying to his master, it would have
been larcenable even during the journey.]
K. 21
322 Select Cases on Criminal Law. [part ii.
Chapter III. Proof of Appropriation.
[ What may suffice.^
[See Regina v. Gale, supra, p. 316.]
REX V. SARAH WILLIAMS.
Pembroke Assizes. 1836. 7 Carrington and Payne 338.
Embezzlement. The prisoner was indicted for embezzling the
money of her master Nathaniel Phillips. It appeared that the prisoner,
who was a servant of Mr Phillips, was sent by his daughter to receive
rent which was due from Mr Gwynne Harries, one of Mr Phillips's
tenants ; and that the prisoner on having received the rent went off to
Ireland, and never returned to her master's service.
Coleridge, J. (in summing up). I think that the circumstance of
the prisoner having quitted her place, and gone off to Ireland, is
evidence from which you may infer that she intended to appropriate
the money ; and if you think that she did so intend, she is guilty of
embezzlement.
Verdict, Guilty.
[What may not s^iffice."]
REX V. JONES.
Gloucester Assizes. 1837. 7 Carrington and Payne 833
Embezzlement. The prisoner was indicted for embezzling a sum of
£6. 13s. 7d., received on account of George Bettis, his employer, from
George Linsley Walker. There was another count as to a sum of
£19. 4s., received from Benjamin Smith.
It appeared that Mr Bettis was a slate merchant at Carnarvon,
who, by means of the prisoner as his clerk, carried on the slate trade at
a wharf at Gloucester. It further appeared that the course of business
SECT. XI.] Rex V. Joui's. 323
was for the prisoner to sell the slates, and to convey tliciii to th«;
customers in his own boats, as Mr Bettis had no boats ; the prisoner
being also a coal merchant on his own account. It was proved that
these sums had been received by the prisoner; but it furllicr appeared
that the prosecutor and prisoner had had no adjustment of accounts for
two years, and that, on Mr Bettis calling for the prisoner's books, he
could not find these sums entered. It was stated by Mr Bettis that
he had never specifically asked the prisoner to account for either of
these two sums, and that the accounts of the prisoner for these two
years amounted to ten or twelve thousand pounds.
BoLLAND, B. Mr Francillon, you can make nothing of this case ;
there is not a felonious conversion. I will take it that the prisoner
put the money into his own pocket, and has made no entry ; that is not
sufficient. Had he denied the receipt of the money, the case might
have been different. If the mere fact of not entering a sum was
enough to support an indictment for embezzlement, every clerk who,
through carelessness, omitted an entry, would be liable to be convicted
of felony. The prisoner must be acquitted.
Verdict, Not guilty.
SECTION XII.
FALSE PRETENCES.
[By section 88 of the Larceny Act, 1861 (24 and 25 Vict. c. 96),
"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 misdemeanor."]
Chapter I. The Mere Pretence.
\It must be a representation about an existing fact, not about some
merely future cveat.^
REGINA V. LEE.
Ceown Case Reserved. 1863. Leigh and Cave 309.
[The prisoner was indicted at the Devonshire Quarter Sessions for
obtaining £10 by the false pretence that he (the said Lewis Loe) had to
21—2
324 Select Cases on Criminal Law. [part ii.
pay his rent to the squire, meaning thereby Richard Sommers Gard, on
the first of March then next, but as that day was Sunday he had to
pay the said rent on the Monday then following ; and that he (the said
Lewis Lee) wanted ten pounds to make up his said rent.
The prosecutor proved that the prisoner had said to him, "I am
going to pay " (or " I've got to pay ") " my rent to the squire on the
first of March ; but as that is Sunday, I am going to pay it the next
day. Will you advance ten pounds for your father-in-law on the rent
of the flax field V The rent was in truth due on March 1.
Prosecutor thereupon lent him £10 on his promissory note.
Prisoner did not say that he required the sum of £10 to make up his
rent ; but the prosecutor believed that he wanted the money for that
purpose ; and he would have refused to lend it him but for his state-
ment that he was going to pay his rent. The jury found the prisoner
-guilty, and stated their opinion that the prisoner's statement that he
was going to pay his rent on the Monday was a false pretence, and that
the money was advanced on the credit of that false pretence.
The Court reserved the question as to whether the prisoner's state-
ment as shewn in evidence amounted to an indictable false pretence.]
CocKBURN, C.J. We are all agreed that the case proved against tlie
prisoner will not warrant the conviction. There is no false pretence of
any existing fact. The pretence alleged is that he was going to pay his
rent, while in fact he had no intention of paying it but meant to
appropriate the money to his own purposes. That is not a false
pretence of an existing fact*.
Conviction quashed.
[Pretences or Promises.]
REGINA V. JENNISON.
Crown Case Reserved. 1862. Leigh and Cave 157.
The following case was reserved by Cockburn, C.J.
John Jennison was indicted and tried before me, at the last Assizes
for the county of Derby, for obtaining £8 of one Ann Hayes by false
pretences.
1 Mr 0. S. Greaves, Q.C., the learned editor of Enssell on Crimes (ii. 16 n.),
points out the difference between the representation alleged in this indictment, and
a represeutation that "rent is due." Cf. the report of this case in 9 Cox 304.
SECT. XII.] Bcf/hia V. Jemn'son. 325
The prisoner, who had a wife living, had represented himself to the
prosecutri.x, who was a single woman in service, as an unmarried man ;
and, pretending that he was about to marry her, induced her to hand
over to him a sum of £8 out of her wages received on leaving her
service; representing that he would go to Liverpool, and with the money
furnish a house for them to live in, and that having done so he would
return and marry her. Having obtained the money, the prisoner went
away, and never returned.
The prosecutrix stated that she had been induced to part with her
money on the faith of the representations of the prisoner that he was
a single man; that he would furnish a house with the money; and would
then marry her.
There was no doubt that these representations were false, and that,
morally, the money had been obtained by false pretences. But it was
contended on the part of the prisoner that, as the prosecutrix had been
induced to part with her money by the joint operation of the three
representations made by the prisoner — that he was unmarried ; that he
would furnish a house with the money ; and that he would then marry
her, — and as only the first of these pretences had reference to a present
existing fact, while the others related to things to be done in futuro,
the indictment could not be maintained.
I reserved the point, and, the prisoner having been convicted, liave
now to request the decision of the Court upon the question.
This case was considered, on the 26th of April, 1862, by Erle, C.J.,
Martin, B., Channell, B., Blackburn, J., and Keating, J.
No counsel appeared on either side.
Erle, C.J. In this case we are all of opinion that the prisoner was
properly convicted. He was indicted for obtaining money by false
jjretences, the false pretences being, that he was an unmarried man,
that he would marry the prosecutrix, and that with the money she was
to give him he would furnish a house for them to live in. Now, it is
clear that a false promise cannot be the subject of an indictment for
obtaining money by false pretences. Here, however, we have the
pretence that he was an unmarried man. This was false in fact, and
was essential, for without it he would not have obtained the money.
Then this false fact by which the money is obtained will sustain the
indictment, although it is united with two false promises, neither of
which alone would have supported the conviction.
Conviction affirmed.
326 Select Cases on Criminal Lai v. [pakt ii.
[Can a mere state of mind (e.g. Intention) be a sufficient Fact]]
THE QUEEN v. GORDON.
CiiO^vN Case Reserved. 1889. L.R. 23 Q.B.D. 354.
[The prisoner, Isaac Gordon (the well-known money-lender), was
tried before Lord Colehidge, C.J., at Worcester Assizes, for obtaining
money by false pretences, on an indictment containing five counts.]
The charges were, — first, on June 5, 1889, with intent to defraud,
obtaining from Richard Summers Brown \0s. Qd. by false pretences
that he was prepared to advance .£100 to him "at lower interest than
was charged to others," and that all advances were repayable by easy
instalments, to suit applicants; second count, on January 9, 1889, with
like intent, obtaining from Richard Summers Brown and Richard
Brown a promissory note for <£100 by false pretences "that he was
prepared to pay them or one of them by way of loan £100"; third
count, same date, with like intent, obtaining from them the said note
for £100 by false pretences "that a document then presented for
signature was a mere receipt for moneys advanced"; fourth count,
same date, with like intent, inducing them to make said promissory
note for £100 by false pretence "that he was prepared to pay to them
or one of them £100"; fifth count, same date, with like intent, fraudu-
lently inducing them to execute said note for £100 by false pretence
" that he had agreed with said Richard Summers Brown to lend and
was ready to pay over £100."...
The Lord Chief Justice, after setting out the evidence in the case,
stated. "I told the jury that if they were of opinion that the prisoner
obtained the promissory note for £100 from the two Browns, or either
of them, by falsely pretending to them that he was ready to pay and
would then pay to them, or one of them, £100 on their signing the
note, they might find him guilty. I explained to them that a false
pretence must be the representation of an existing fact untrue in fact,
false to the knowledge of the person making it, and that the money or
other subject-matter must be obtained or procured by means of it. I
had great doubts as to the validity of counts 1, 2, and 4, and I with-
drew count 3 from their consideration, as I thought it bad in law, and
that there was no evidence of it, in fact. I was not free from doubt as
to count 5; and I directed the jury to find separately on each count.
They found the prisoner guilty on counts 1, 2, 4, and 5, and not guilty
on count 3.
SECT. XII.] The Queen v. Gordon. 327
"I have to request tlio opinion of the Court of Criininal Appeal
whether the conviction upon all or any of the four counts on wliicli
a verdict of guilty was entered can be sustained. If it can be sustained
on any of those counts the conviction is to be ailirnied ; if not it is to
be quashed."
Lockwood, Q.O. (Hartngton, with him), for the defendant.
[The Court intimated that the argument might be limited to tlie
fourtli count.]
First, no false pretence of an existing fact is alleged in the fourtli
count. The meaning of it is only that the defendant said, " If you will
give me a promissory note for £100 I will lend you £100" — that is
a mere promise to do something in the future, such as would be in the
case of a purchaser saying to a tradesman, " If you will send goods to
my house I will pay for them."
[Wills, J. Suppose the defendant said, •' I have the intention of
advancing £100," and he, in fact, had no intention of the kind.]
That would not be a sufficient false pretence. It would be im-
possible to prove that his intention was not that stated at the time,
although it might have been changed afterwards. The defendant was
undoubtedly in a position and able to advance £100, and therefore
literally "was prepared to do so."...
Wills, J. I am glad that it is possible to support the conviction
without venturing on the somewhat dangerous ground to which I
referred in the course of the argument, and rendering it necessary
to distinguish between a promise to do something, and a statement of
intention. I find it difficult to see why an allegation as to the present
existence of a state of mind may not be under some circumstances as
much an allegation of an existing fact as an allegation with respect to
anything else. For example, suppose that by an arrangement for the
settlement of litigation, a man was to pay a sum of money ; and when
the time came he said : " I shall not pay until I know that A- has the
intention of acceding to this arrangement. I do not insist upon
having his promise, I shall be content if I know what his present
intention is. Otherwise I shall not pay." Suppose B., who was to get
the money, then told him that A. had that intention, and he believed
B. and paid the money upon the faith of B.'s assurance; and all the
while B. knew that A.'s intention was exactly the contrary to what he
had stated, I should have thought that the allegation as to A.'s inten-
tion was one of an existing fact, capable of supporting an indictment
for obtaining money by false pretences. But I am very sensible that
in such an inquiry there must always be a danger of confounding
intention with a representation or a pi'omise as to something future ;
328 Select Cases on Criminal Law. [part ii.
and I am veiy glad that it is possible, for the reasons given by my
Lord, to affirm this conviction without approaching any such debate-
able ground.
[The other four Judges concurred.]
Conviction affirmed.
[Editor's Note. In Rex\. Bancroft (a.d. 1909, 26 T. L. R. 10), and in later
cases, the Court of Criminal Appeal has favoured the doctrine that a statement of
Intention is a statement of existing Fact.]
\^:^tatements as to matter's of mere opinion (e.g. expressions of indefinite
praise) do not amount to Representations of Fact.]
REGINA V. JOHN BRYAK.
Crown Case Reserved. 1857. Dearsly and Bell 265.
The following case was reserved and stated for the consideration
and decision of the Court of Criminal Appeal by the Recorder of
London.
John Bryan was tried for obtaining money by false pretences.
There were several false pretences charged in the different counts of
the indictment, to which, as he was not found guilty of them by the
jury, it is not necessary to refer. But the following pretences were
among others charged. That certain spoons produced by the prisoner
were of the best quality ; that they were equal to Elkington's A (mean-
ing spoons and forks made by Messrs Elkington, and stamped by them
with the letter A) ; that the foundation was of the best material ; and
that they had as much silver upon them as Elkington's A. The prose-
cutors were pawnbrokers ; and the false pretences were made use of by
the prisoner for the purpose of procuring advances of money on the
spoons in question, ofiered by the prisoner by way of pledge ; and he
thereby obtained the moneys mentioned in the indictment by way of
such advances. The goods were of inferior quality to that represented
by the prisoner ; and the prosecutors said that, had they known the real
qualit)', they would not have advanced money upon the goods at any
price. They moreover admitted that it was the declaration of the
prisoner as to the quality of the goods, and nothing else, which induced
them to make the said advances. The moneys advanced exceeded the
SECT. XII.] Regina v. John Bi'i/(()t. 329
value of the spoons. The jury found the prisoner guilty of fraudulently
representing that the goods had as much silver on them as Elkington's
A, and that the foundations were of the best material, knowing that to
be untrue; and that in consequence of that he obtained the moneys
mentioned in the indictment. The prisoner's counsel claimed to have
the verdict entered as a verdict of Not Guilty, which was resisted by
the counsel for the prosecution ; and, entertaining doubts upon the
question, I directed a verdict of Ouilt}' to be entered, in order that the
judgment of the Court for the Consideration of Crown Cases might be
taken in the matter.
*****
G. Francis, for the Crown. This is in fact a misrepresentation of
quantity, and substantially the same as Reg. v. Sherwood. (D. and B. 251.)
Lord Campbell, C.J. Of the quantity of the silver 1
G. Francis. Yes. Elkington's A is an article of ascertained manu-
facture; and by representing the spoons to be equal to Elkington's A,
the prisoner represented that they were covered with the same quantity
of silver as Elkington's spoons would be covered with. The money was
therefore obtained by a false representation that there was a greater
weight of silver than there really was, and therefore there was a false
pretence of an existing fact within the statute. Secondly, if the repre-
sentation was of quality merely, it is within the statute ; the money
was obtained by the representation, and the jury have found the repre-
sentation was made with intent to defraud.
*****
Pollock, C.B. There may be considerable difficulty in laying down
any general rule which shall be applicable to each particular case ; but
I continue to think that the statute' was not meant to apply to the
ordinary commercial dealings between buyer and seller ; still I am not
prepared to lay down the doctrine in an abstract form, because I am
clearly of opinion that there might be many cases of buying and selling
to which the statute would apply — cases which are not substantially
the ordinary commercial dealings between man and man. I think if a
tradesman or a merchant were to concoct an article of merchandize
expressly for the purpose of deceit, and were to sell it as and for some-
thing very difJerent even in quality from what it was, the statute would
apply. So, if a mart were opened, or a shop in a public street, with
a view of defrauding the public, and puffing away articles calculated to
catch the eye but which really possessed no value, there, I think, the
statute would apply. But I think the statute does not apply to the
1 7 and 8 Geo. IV, c. 29, s. 53; almost identical with 2-4 and 25 Vict. c. 90,
6.88.
330 Select Cases on Criminal Law. [part n.
ordinary commercial transactions between man and man ; and certainly,
as has been observed by the Lord Chief Justice, if it applies to the
seller it equally applies to the purchaser, although it is not very likely
that cases of that sort would arise. It would be very inconvenient to
lay down a principle that would prevent a man from endeavouring to
get the article cheap which lie was bargaining for, so that if he was
endeavouring to get it under the value he might be indicted for obtain-
ing it for less than its value. And there is this to be observed, that if
the successfully obtaining your object, either in getting goods or money,
is an indictable offence, any attempt or step towards it is an indictable
offence as a misdemeanor ; because any attempt or any progress towards
the completion of the offence would be the subject of an indictment.
And then it would follow from that, that a man could not go into
a broker's shop and cheapen an article but he would subject himself to
an indictment for misdemeanor in endeavouring to get the article under
false pretences. For these reasons I think it may be fairly laid down
that any exaggeration or depreciation in the ordinary course of dealings
between buyer and seller during the progress of a bargain is not
the subject of a criminal prosecution. I think this case falls within
that proposition, and I therefore think this conviction cannot be sup-
ported.
* * * « *
Erle, J. I am also of opinion that this conviction cannot be
sustained ; not on the ground that the falsehood took place in the course
of a contract of sale or pawning, but on the ground that the falsehood
is not of that description which was intended by the legislature. It is
a misrepresentation of what is more a matter of opinion than a definite
matter of fact. . . .
No doubt it is difficult to draw the line between the substance of
the contract and the praise of an article in respect of a matter of
opinion ; still it must be done. The present case appears to me not
to support a conviction, upon the ground that there is no aflBrmation of
a definite triable fact in saying the goods were equal to Elkington's A ;
but the affirmation is of what is mere matter of opinion, and falls
within the category of untrue praise in the course of a contract of sale
Avhere the vendee has in substance the article contracted for, namely,
plated spoons.
[Judgments were delivered by all the twelve Judges. Ten of them
held that the conviction was wrong ; Willes, J., dissented ; and
Bramwell, B., expressed a doubt.]
ShioT. XII.] The Queen v. Ardlcy. 331
\What is matter of Fact and not of 0[)iiiioii.]
THE QUEEN v. ARDLEY.
Crowx Case Reserved. 1871. L.R. 1 G.C.R. 301.
Case reserved by the learned Chairman of the Court of Quarter
Sessions for the county Palatine of Durham.
John Ardley was tried before me on the 2nd of January, 1871, for
obtaining £5 and an albert chain of the value of 7s. Gd. by false
pretences....
The prisoner went into the shop of the prosecutor, who was a
Avatchmaker and jeweller ; and stated that he was a draper, and was £5
short of the money required to make up a bill, and asked the prosecutor
to buy an albert chain which he (the prisoner) was then wearing. Tlio
prisoner said, "It is 15-carat fine gold, and you will see it stamped on
every link. It was made for lue, and I paid nine guineas for it.
The maker told me it was worth five pounds to sell as old gold."
The prosecutor bought the chain, relying as he said, on prisoner's
statement, but also examining the chain ; and paid £5 for it, and gave
also to the prisoner in part payment a gold albert chain valued at 7s. Gd.
The prisoner's chain was marked "15-carat" on every link.... It was
proved that 15-carat was a Hall mark used in certain towns of England,
and placed on certain articles made of gold of that quality ; and that
chains when assayed are generally found to be 1 grain less than the
mai'k — exceptionally 2 grains.
The chain bought by the prosecutor was assayed and found to be of
a quality a trifle better than 6 -carat gold, and of the value in gold of
£2. 2s. 9c/.... There were no drapery goods or anything connected with
such trade found on the prisoner —
I was asked by counsel for the prisoner to stop the case on the
authority of The Queen v. Bryan (supra, p. 328). Tliis I declined to
do and left the case to the jury : who found the prisoner guilty, and
in answer to me said they found that the prisoner knew he was falsely
representing the quality of the chain as 15-carat gold.
The question for the opinion of this honourable Court is, whether or
not the prisoner was rightly convicted of obtaining money under false
pretences.
BoviLL, C. J.... Looking at tlie whole evidence the jury found the
prisoner guilty; and there is sufficient ground on which the finding of
the jury may be supported and the conviction sustained.
332 Select Cases on Criminal Lair. [part ii.
But the jury have lurther found that the prisoner, when he repre-
sented the chain to be 15-carat gold, knew this representation to be
false. And the question whether the conviction can be supported upon
that finding alone stands upon a somewhat different footing. The cases
have drawn nice distinctions between matters of fact and matters of
opinion, statements of specific facts and mere exaggerated praise. It is
difiicult for us, sitting here as a Court, to determine conclusively what
is fact and what is opinion, what is a specific statement and what
exaggerated praise. These are questions for the jury to decide. And
the prisoner has this additional security, that the jury have to consider
not only whether the statements made are statements of fact, but also
whether they are made with the intention to defi'aud....
The statement here made is not in form an expression of opinion or
mere praise. It is a distinct statement, accompanied by other circum-
stances, that the chain was 15-carat gold. That statement was untrue,
was known to be untrue, and was made with intent to defraud. How
does that differ from the case of a man who makes a chain of one
material and fraudulently represents it to be of another? Therefore,
whether we look at the whole of the evidence, or only at that which
goes to the quality of the chain, the conviction is good. The case
differs from Reg. v. Bryan ', because here there was a statement as to
a specific fact within the actual knowledge of the prisoner, namely, the
proportion of pure yuld in the chain.
WiLLES, J. I am of the same opinion. In Reg. v. Bryan^ Erie, J.,
and several other judges said that if the prisoner had said that the
spoons were Elkington's A., instead of that they were equal to
Elkington's A., the conviction would have been good. Here the
prisoner stated that the chain was 15-carat gold.
Conviction affirmed.
[Editor's Note. A contrast, analogous to that presented by the two preceding
oases, may be obtained by comparing Reg. v. Crab (11 Cox 85) with Reg. v.
Williamson (11 Cox 328) ; the former of which decides that false representations as
to the successfulness of a business establishment are indictable if there was no
establishment at all, whilst the latter shews that they may be mere unindictable
exaggerations of praise if the establishment did actually exist.]
^ Dearsly and Bell, C. G. 265, supra, p. 328.
SECT. XII.] Rex V. Barnard. 333
\The representation may be made by mere silent coiidurlA
REX V. BARNAUD.
Oxford Assizes. 1837. 7 Carrinoton and Paynk 784.
False pretences. The indicttnent cliarged that the prisoner falsf^ly
pretended that he was an undergraduate of the university of Oxford,
and a commoner of Magdalen College ; by means of which he obtained
a pair of boot-straps from John Samuel Vincent.
It appeared that Mr Vincent was a boot-maker, carrying on busi-
ness in High Street, Oxford; and that the prisoner came there, wearing
a commoner's cap and gown, and ordered boots, which were not
supplied him, and straps, which were sent to him. He stated he
belonged to Magdalen College.
It was proved by one of the butlers of Magdalen College that the
prisoner did not belong to that college, and that there are no commonere
at Magdalen College.
Bolland, B. (in summing up). If nothing had passed in words, I
should have laid down that the fact of the prisoner's appearing in the
cap and gown would have been pregnant evidence from which a jury
should infer that he pretended he was a member of the university ;
and if so, would have been a sufficient false pretence to satisfy the
statute. It clearly is so, by analogy to the cases in which offering in
payment the notes of a bank which has failed, knowing them to be so,
has been held to be a false pretence without any words being used.
\0r by words which do not express but only imply it.^
THE QUEEN v. COOPER.
Crown Case Reserved. 1877. L.R. 2 Q.B.D. 510.
Case stated by the chairman of the Quarter Sessions for the West
Riding of Yorkshire, holden at Wakeheld.
The indictment charged that William Cooper did falsely pretend
to one John Gellatly that he the said William Cooper then was a
dealer in potatoes, and as such dealer in potatoes then was in a large
way of business, and that he then was in a position to do a good trade
334 Select Cases on Crimhial Law. [part il
in potatoes, and that he then was able to pay for large quantities
of potatoes as and when the same might be delivered to him; by means
of which said false pretences the said William Cooper did then unlaw-
fully obtain from the said John Gellatly eight tons fifteen hundred-
weights and two quarters of potatoes of the goods and chattels of the
said John Gellatly, with intent thereby then to defraud. The indict-
ment then negatived the pretences.
In support of the prosecution the following letter, addressed to
John Gellatly, was given in evidence: —
"Sheffield, Jan. 17th, 1876.
"Dear 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 the cash on arrival of goods and invoice. Yours truly,
William Cooper."
"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."
It was amply proved in evidence that the prisoner when he ordered
the regents and rocks (which are kinds of potatoes) had no intention of
paying for them; that he held from time to time a stall in the public
market for which he paid by the day, and also dealt as a huckster,
carrying about fruit in a small cart drawn by a donkey; and several of
the witnesses, though very well acquainted with him and his trade,
were ignorant of his dealing in potatoes.
The potatoes were sold by the prisoner in part at the railway
station, at a less cost than they would have stood to him ; and as to the
other part, when, on receipt of a telegram from the seller, inquiries were
made by the railway people, the prisoner, who was at the station filling
his sacks, left the potatoes and his sacks, and could not be heard of for
several weeks though the police were in active search of him.
It was contended by the prosecution that the letter or order of
the prisoner amounted to a representation that he was a person trading
in a considerable way, and that the order given was on a scale con-
sistent with his ordinary transactions ; whereas his ordinary dealings
were on a very small scale, to which the large order for potatoes was
disproportionate ; and that consequently the prisoner had misrepre-
sented his real character and position, and thereby had made the false
pretence alleged in the indictment.
The falsehood of the pretence, supposing this construction to be
correct, being amply proved by the evidence, I left the case to the jury,
holding that the contention of the prosecution was consistent with law ;
SECT. XII.] The Qmeii v. Cooper. 835
but leaving it to them, that if they thought the lett<'r did not pmvo
the false pretence as alleged in the indictment the prisoner should be
acquitted. The jury convicted ; and the prisoner was admitted to bail
to appear to receive sentence at the next Quarter Sessions.
The question was whether upon the facts proved the defendant was
properly convicted upon this indictment.
aS'. Tennant, for the prisoner. The letter is perfectly consistent
with the position of the writer being that of a man who has just
begun, or who is just about to begin, to trade largely in potatoes.
The expression "as samples " in the letter is consistent with this view.
The letter does not contain any statement as to the writer's past
position, or as to his then position, but merely statements of what the
writer intends or hopes to do in the future. Even if the letter is
capable of the interpretation sought on the part of the prosecution
to be placed upon it, yet it is at least as capable of an innocent inter-
pretation. It contains no express statement of existing facts, and it
does not, by necessary implication, contain any such statement.
[Lush, J. I do not think the inference need be a "necessary"
inference, it must be a natural and reasonable inference.]
A promise to pay has never been held to imply a statement of
present ability to pay, and the letter contains no statement of ability to
pay, unless it is to be inferred from the words " I will remit you cash
on arrival of goods and invoice."...
*****
Lush, J. The question for our consideration is, was there evidence
on which the jury could reasonably convict the prisoner of the ofience
charged? The pretences charged are that "he then was a dealer in
potatoes, and as such dealer in potatoes then was in a large way of busi-
ness " ; that he "then was in a position to do a good trade in potatoes";
and that he "then was able to pay for large quantities of potatoes as and
when the same might be delivered to him." The pretence, in order to
justify a conviction, must be of existing facts. It may be made either by
words or by acts. It is sufficient if it can be reasonably and naturally
inferred from the words, or from the acts, in order to raise a question
for the decision of the jury. It is not necessary that the words or
that the acts should be capable, only, of the meaning charged by the
indictment. If the words in the letter written by the prisoner in the
present case were intended to mean, and are fairly capable of meaning,
that which is charged, and if they were so understood, then there waa
as much a pretence as though the letter had contained a definition of
their meaning. The words liere are capable of supporting the pre-
tences charged. Without further explanation this large quantity is
336 Select Cases on Criminal Law. [part ii.
asked for as a sample ; and then the prisoner says he will remit, and
talks of the trade to be done. The letter is fairly capable of represent-
ing and conveying to the mind of the reader that the defendant was a
man dealing largely, and in a position to do a good trade and remit at
once on delivery. The jury have adopted tliis construction, and have
found that the prosecutor did so read the letter, and that the prisoner
intended it to be so read. I therefore think the conviction right.
*****
Four other Judges concurred.
Conviction affirmed.
[See also Regina v. Closs, supra, p. 184.]
[ What representations are implied in drawing a cheque.]
THE QUEEN v. HAZELTON.
Crown Case Reserved. 1874. L.R. 2 C.C.C.R. 134.
Case stated by the common serjeant of London.
At the Central Criminal Court, the prisoner was tried on an indict-
ment for obtaining goods by false pretences with regard to cheques
for £5 aud £8. Ss. given in payment for those goods. It was proved
in evidence that the prisoner opened an account at the Birkbeck Bank
on the 30th of June, 1873, with a payment to his credit of £22. 10s.,
and had a cheque book given to him for his use, containing fifty
blank cheques. That on the 9th of December, 1873, the balance in
his favour in the Birkbeck Bank was five shillings and three pence ;
and the account remained unaltered up to the 27th of June, 1874,
when he applied to the Birkbeck Bank for a new cheque book, which
they refused ; and then he withdrew 5s. He could have had the 3d.
That thirty-three of his cheijues were honoured and about seventeen
refused by the Birkbeck Bank. That he would not have been allowed
to overdraw his account at the Birkbeck Bank.
Evidence was given that in April, 1874, the prisoner drew the two
cheques on the Birkbeck Bank for £5 and £8. 8s., and gave them in
payment for goods bought by him (which goods he pawned immedi-
ately afterwards). On presentation at the Bank, the cheques were
dishonoured ; his balance in the bank at that time being only 5s. 3d.
SECT. XII.] The Queen v. HazvWm. 337
The common serjeant doubted whether, in point of hiw, a nmn who
gives a cheque in payment, under the circumstances before mentioned,
does by the mere fact of giving the cheque, without saying more than
that he wishes to pay ready money, make either of th(! fal.se pretences
alleged in the indictment, viz.:— 1. That he then has money to the
amount of the cheque in the bank upon which it is drawn. 2. That
he then has authority to draw upon the bank for that sum. 3. That
the cheque which he gives is a good and valid order for the payment of
its amount. 4. That he then has a banking account with the bank
upon which his cheque is drawn and where his account is overdrawn.
He summed up the case to the jury; and they found that the prisoner
did not intend, when he gave the respective cheques mentioned in the
indictment, to meet them, and that he intended to defraud. A verdict
of "guilty" was thereupon recorded; and the learned common serjeant
reserved for the opinion of this Court the question, whether there was
any evidence to go to the jury of the prisoner having made any of the
false pretences mentioned in the indictment. If there was, the con-
viction was to be contirmed. If there was not, it was to be reversed.
Kelly, C.B. There are two questions in this case; first, whether
the prisoner has expressly or impliedly made a representation upon the
faith of which goods have been obtained ; and, secondly, whether that
representation was false.
Several representations are laid in the indictment, and are proposed
to us in the case as arising from the conduct of the prisoner in the
present case. It is suggested that a person acting as the prisoner did
represents that he then has money, to the amount of the cheque which
he tenders, in the bank upon which it is drawn. If this had been the
only representation suggested tliere would have been great difficulty in
upholding the conviction. The giving of a cheque does not necessarily
imply any such representation. Not only may a banking account be
kept under a guarantee upon the express terms that it may be over-
drawn, but, without any such arrangement, a person of position may
often overdraw an account in perfect good faith and with the tacit
sanction of his bankers.
Then it is suggested that the conduct of the prisoner amounted
to a representation that he had authority to draw upon the bank
for the sum for which he drew. I think that representation does arise.
I do not see how it can but be implied.
But as to the third representation there can be no doubt,
namely, that the cheque is a good and valid order for the payment
of its amount. The case which has been cited, Reg. v. Parker'^, is
1 7 C. and P. 829; 2 Moo. Cr. C. 1. 34 L. J. (M.C.) 50.
K. 22
338 Select Cases on Criminal Law. [part ii.
express upon the point; and that the goods were obtained uj)on the
faith of the representation admits of no question.
It remains to consider whether the representation made was untrue.
If a man's account were overdrawn, and he had reason to suppose
that his cheque would still be honoured, this might be consistent ^vith
his having authority to draw and with his cheque being a good and
valid Older. But, in the present case, it is quite clear that the prisoner
knew that his account at the bank was virtually closed, and that
he knew this cheque would not be paid. He had, therefore, no
authority to draw. And his cheque was not a good and valid order,
that is to say, one which might be cashed.
Brett, J. ...I think there also is evidence of the fourth false repre-
sentation charged.
♦ ♦ « * *
Conviction affirmed.
[Or in sending a half of a hank-note.'\
THE QUEEN v. MURPHY.
Irish Crown Case Reserved. 1876. Irish Reports 10 C.L. 508.
[The prisoner was indicted for obtaining certain quantities of tea
and sugar from J. O'Connor, with intent to defraud, by falsely pre-
tending that she then had in her custody the proper halves corre.spond-
inf to the halves of two bank-notes which accompanied her order for
the said goods, and that the same would in due course be sent by her to
him. In other counts she was similarly indicted in resprct of half-
notes sent to other persons.
Evidence was given by several witnesses that the prisoner had
written letters to them inclosing half-notes, and requesting that goods
should be forwarded to her ; that the goods wore sent, but the prisoner
did not send the second halves of the notes. In some cases, one half of
a note had been sent to one witness, and the other half of tlie same
note to another. Counsel for the prisoner contended that the indict-
ment could not be maintained ; as the false pretence should be of an
existing fact, and here the goods had been obtained upon a mere
promise to send the other half notes.
SECT, xir] The Queen v. Murphy, 339
The jury found the prisoner guilty, but a case was reserved for tho
opinion of the Court for Crown Cases Reserved upon the point thus
raised.]
W Moore, for the prisoner.... The test to apply is, was the sending ui
the half-notes merely a promise to pay in the future ? If so, it is not a
false pretence; it was merely a security. It is not a false pretence on
the face of it, like a flash note. It is quite possible that the prisoner
made a mistake in sending the half-notes
O'Brien, J. You say, Mr Murphy, that tlio mere act of sending
the half-notes was a representation that the prisoner had the corre-
sponding halves?
James Muiyhy, Q.G., for the prosecution. Yes; upon the authoi-ity
of R. V. Giles (L. and C. 205).
Morris, C.J., stated that the Court were unanimously of opinion
that the conviction should be affirmed.
Chapter II. The Obtaining.
[27ie Pretence must have been followed by an Obtaining.^
REGINA V. MARTIN.
Sussex Assizes. 1859. 1 Foster and Finlasox 501.
False Pretences. The indictment charged that the prisoner, by
falsely pretending to one Cloke that he was authorised by F., obtained
from the said Cloke certain hop-poles, the property of the said Cloke,
with intent to defraud him.
The prisoner, hearing that one F., who lived at M., wanted hop-
poles, went to him and agreed to sell him a number, at 16s. 9c/. per
hundred, to be delivered at M. station. He then went to Cloke, who
had hop-poles, and said he was commissioned by F. to buy them,
promising that F. would send a cheque for the price. A cheque was
sent ; but it did not appear by whom. Cloke sent the poles to the
station, by his own team, consigned to F. The bill was made out to F.,
who paid the carriage, and got the poles. Then the prisoner got the
purchase money from him.
Roupell, for prisoner. The prisoner never got the poles. He pre-
tended to sell, or sold, goods he had not got (Kings/ord v. Merry,
22—2
340 Select Cases on Criminal Law. [part ii.
1 H. and N. 503) ; Cloke ratified the contract between F. and the
prisoner. If the prisoner was indictable at all, it was for obtaining
luoney from R, not goods from Cloke.
WiGUTMAN, J., so held, and directed an acquittal
[Ainl this Obtaining must have been actually caused by the Pretence.^
REGINA V. MILLS.
Crown Case Reserved. 1857. Dearsly and Bell 205.
At the General Quarter Sessions of the Peace, holden for the
County of Cambridge on the 9th of January, 1857, William Mills was
tried and convicted upon the following indictment, for obtaining money
under false pretences : — " Cambridgeshire, to wit. The jurors for our
Lady the Queen upon their oath present, that William Mills, on the
14th day of November, 1856, did falsely pretend to one .Samuel Free
that the said William Mills had cut sixty-three fans of chaff for him
the said Samuel Free ; by which said false pretence the said William
Mills then unlawfully did obtain from the said Samuel Free certain
money of him the said Samuel Free, with intent to defraud; whereas ia
truth and in fact the said William Mills had not cut sixty-three fans of
chaff, as he the said William Mills did then so falsely pretend to the
said Samuel Free, but a much smaller quantity (to wit) forty-five fans
of chaff. And the said William Mills, at the time he so falsely pre-
tended as aforesaid, well knew the said pretence to be false, against the
form of the statute," &c. It appeared from the evidence tliat the
prisoner was employed to cut chaff for the prosecutor, and was to be
paid twopence per fan for as much as he cut. He made a demand for
10«. 6d, and stated he had cut sixty-three fans; but the prosecutor and
another witness had seen the prisoner remove eighteen fans of cut chaff
from an adjoining chaff-hou»e and add them to the heap which he
pretended he had cut; thus making the sixty-three fans for which
he charged. Upon the representation that he had cut sixty-three fans
of chaff, and notwithstanding his knowledge of the prisoner having
added the eighteen fans, the prosecutor paid him the \Qs. 6d., being
three shillings more than the prisoner was entitled to for the work
actually performed.
It was objected, on behalf of the prisoner, first, that this was simply
SECT. XII.] Regina v. Mills. 341
an overcharge, as in the case of Reg. v. Ontcfi^; and secondly, that, as
the prosecutor, at the time he parted with his money, knew the factH,
the prisoner cannot be said to have obtained the money by the false
pretence. Judgment was postponed; and the prisoner was discharged
upon recognizances to appear at the next Quarter Sessions. The
opinion of the Court of Criminal Appeal is requested, whether the
prisoner was rightly convicted of misdemeanor under the foregoing
indictment.
Thos. St Quinton,
Chairman.
Orridge, for the Crown. I submit that this conviction was right.
Coleridge, J, How do you say the money was obtained by the
false pretence?
Orridge. When the owner of goods knows that a thief is coming,
and does not prevent him from taking the goods, the oiience of larceny
is as complete as it would have been if the owner had known notliing
about it. Reg. v. Egginton".
WiLLES, J. But in larceny the question does not turn on the
belief of the prosecutor.
Orridge. In Hex v. Adey^, Patteson, J., says : — "If the defendant
did obtain the money by false pretences, and knew them to be false at
the time, it does not signify whether they intended to entrap him or
not*."
CocKBURN, C.J. The test is, what was the motive operating on the
mind of the prosecutor which induced him to part with his money 1
Here the prosecutor knew that the pretence was false ; he had the
same knowledge of its falseness as the prisoner. It was not the false
pretence, therefore, which induced the prosecutor to part with his
money ; and if it is said that it was parted with from a desire to entrap
the prisoner, how can it be said to have been obtained by means of the
false pretence 1
Coleridge, J. In Rex v. Adey it is said that the prosecutor
believed the false statement.
Crowder, J. It is always a question whether the prosecutor was
induced to part with his money by the false pretence.
WiLLES, J. The prosecutor handed the money over to tiie prisoner
with a full knowledge of the true state of the circuiustauces.
1 Dearsly, C. C. 459. ^ 2 B. and P. 508. » 7 C. and P. 140.
* Patteson, J., also said to the jury, "If you believe any one of the pretences
was false, and that the mina 0/ the prosecutor wui operated upon by it, theu you will
find him guilty."
342 Sdect Cases on Criminal Laic. [part ii.
Bramwell, B. The prosecutor paid the money with a knowledge
of the facts. I doubt if he could get it back in a civil action.
Cc'CKBUHN, C.J. The case is very clear. The conviction is wrong.
Conviction quashed.
[And the Pretence must not have been too remote a cause!]
THE QUEEN v. BUTTON.
Crown Case Reserved. 1900. Editor's ms. note\
At the Lincoln City Quarter Sessions on July 3, 1900, the defend-
ant was indicted for attempting to obtain goods by false pretences.
At the Lincoln Athletic Sports in August, 1899, the defendant came
forward as a competitor in a 120 yards race and a 440 yards race, for
each of which there was a ten guinea prize. He presented entry forms
which purported to be signed by "0. Sims, Thames Ironworks Athletic
Club"; and which contained a statement as to the last four races in
which Sims had run, and also a statement that he had never won
a race. These statements were true ; but Sims had not signed them,
and he knew nothing of them. In consequence of what appeared in
them the handicapper of the Lincoln Sports allowed Sims a start of
eleven yards in the 120 yards race, and 33 yards in the 440 yards
race. At the time of the sports, Sims was at his home at Erith. The
defendant, who was a good runner and had won a race in his own
name, personated Sims ; and easily won the two races. The suspicions
of the handicapper were aroused after the first of these races ; and he
questioned the defendant as to whether he really was Sims and really
had never previously won a race. The defendant answered in the
affirmative. The handicapper swore at the trial that he should not
have given the defendant such favourable starts if he had known his
true name and performances. The defendant never applied for the
prizes, and never received them. It was suggested for the defence
that the defendant might have acted as he did merely for "a lark," or
for the purpose of keeping himself in training. The Recorder of
Lincoln directed the jury that if the defendant did it "for a lark,"
with no criminal intent, and without intending to get the prizes, they
1 A report of this case will also be found in L. li. [1900] 2 Q. B. 597.
SECT. XII.] Tlie Queen v. Bnffon. S43
ought to find him not guilty: but thut if lie marie the false reprpsenta-
tions wilfully and fiaudulently, with inttiit to obt.iin the pri2<'H, they
ought to tind him guilty of attempting to obtain them by false
pretences. The jury found him guilty. The Recorder reserved a case
for the consideration of the Court; the questions to be decided
being (1) whether the Recorder had rigiitly directed the jury ; and
(2) whether the attempt to obtain the prizes was too remote from the
pretence.
Huglies, for defendant. The false representation is not sufficiently
proximate. In Reg. v. Lamer (14 Cox 497) it was held by the
Common Serjeant, after consulting Stephen, J., that where after a
similar false entry, a competitor received 25 seconds start in a swim-
ming match and won the cup, what he obtained by the false pretence
was not the cup itself, but only the ticket permitting him to compete.
In the present case he has not even received the prize, as Larner did.
By the false entry he obtained nothing beyond an advantage in run-
ning in the race. The winning was not the elFect of the entry, but of
his actual skill in running ; he might or might not have won. And
even the winning gave only an optional right to the prizes, a right
which he might or might not have enforced ; so something remained
still to be done by him. There is no true indictable attempt until a
defendant has performed the final act that it depends on himself to
perform. In Reg. v. Eagleton (6 Cox 559) Parke, B., said, "If any
further stop by defendant had been necessary, we should have thought
it not sufficiently proximate." Accordingly, in the present case, there
would be no indictable attempt until he made actual application for the
prizes. The case falls within the principle of Reg. v. Burgess (7 Cox
136) where a false pretence by which lodgings had been obtained was
held not to extend to the board which had been supplied in them.
Shearman and Walker for the Crown were not called upon.
IMathew, J. We are all agreed that the conviction must be
upheld. Reg. v. Larner is a decision on the particular facts; no
reasons are given for it. It has been difiered from by Lord Lindley;
and we think his Lordship was right. What was intended by the
defendant when he entered his name for the races 1 Was it to obtain
the prizes? If it were, was that entry too remote from the obtaining?
He falsely represented himself as a man who had never won a race ;
and he was accordingly handicapped as such. Did he do this merely
"for a lark"? The jury have negatived that view of bis intention.
It is ai'gued that his winning was due to his own athletic powers; but it
was due also to his false representations. It is argued that his criminal
intention was exhausted before the final act that remained to be done
344 Select Cases on Criminal Law. [part ii.
by him was reached. But the jury have found that he had a fraudulent
intention, and made false representations. They were not too remote.
Wright, J. If he had merely entered for the races, probably that
act alone would not have been sufficiently proximate to be indictable.
But here he actually ran ; and, even when the running was over, he
repeated the lie. If so, there is an indictable attempt; for Reg. v.
Lamer is not to be recognised as an authority.
The other three Judges concurred.
\^But mere lapse of time does not necessarily make the causation
too remote.^
THE QUEEN v. MARTIN.
Crown Case Reserved. 1867. L.R. 1 C.C.R. n6.
[The prisoner was indicted at the Quarter Sessions for the county
of "War^vick for obtaining a spring van with intent to defraud, by
falsely representing that he was "the agent to the Steam Laundry
Company, of which some of the leading men in Birmingham were at
the head," and that, as such agent, he was desired by the company to
procure a spring van for the use of the company. It was shewn that
the prisoner, when ordering the van, had made the representation set
out in the indictment. And the prosecutor stated that he supplied the
van to the prisoner solely as agent of the company, and on the faith of
his representation that the company consisted of the leading men in
Birmingham ; though he admitted that he had taken the prisoner's
representation about the company without inquiring who the leading
men of Bii-mingham at the head of it were, and without requiring any
reference. The prosecutor had built the van and lettered it as directed,
when the prisoner wrote countermanding the order. The van was
nevertheless delivered, in pursuance of the original order ; and at
prisoner's request some boards were afterwards put in it. Subse-
quently ihi pi'usecutor received notice of a meeting of prisoner's
creditors, which he was invited to attend as a creditor. This he
declined to do ; and on his protesting to the prisoner that it was the
company he had made the van for, the latter replied, "I am the
company; there is no company but only me." The prisoner was con-
victed ; but a case was stated for the opinion of the Court of Criminal
Appeal whether a verdict of Guilty was a right verdict upon the
evidence.]
SECT. XII.] The Queen v. Martin. 34'.
Kennedy, for the prisoner. In order to supjioit an indictment foi-
obtaining by false pretences, the thing obtained must ha in existence
when the false pretence is made. A man cannot be indicted for
obtaining by false pretences an agreement to make something. The
old law contemplated the existence of something of which there could
be an owner ; and although now, by the 24 and 25 Vict. c. 96, s. S8,
ownership need not be alleged, yet the nature of the thing to be
obtained is not altered. Section 90 of tliat act applies to the case of
valuable securities not in existence when the false pr(;tence is niadc ;
but there is no offence in ordering a chattel to be made. A man
cannot be convicted of obtaining a dog by false pretences, because a
dog is not the subject of larceny: Reg. v. Rohinson\ iSTeither is that
the subject of larceny which is not in existence when the false pretence
is made.
[WiLLES, J. The law did not condescend to take notice of base
animals. A dog was not the subject of larceny at common law,
because, as it was said, a man shall not hang for a dog^]
In Douglass's Case^ it was held that money obtained from a servant
cannot be described as the property of the master because the master
afterwards reimburses the servant. In Wavell's Case*, where a man
induced a banker to honour his cheques by false pretences, the conviction
was held bad, because what was obtained was credit on account.
[Blackburn, J. There the prisoner never obtained the money
at all. The question here is, whether the van, when built, was obtained
by a continuing false pretence.]
The doctrine of a continuing jiretence is not to be found in the
statute. In Gardner's Case^ the prisoner obtained a contract for
lodging by false pretences, and afterwards obtained food under that
contract ; but it was held that the getting the food was too remotely
the result of the false pretence. So here the false pretence was ex-
hausted in obtaining the contract to build the van. Bryants Case^ is
still more strongly in favour of the prisoner.
[Lush, J. In Gardner's Case^ the prisoner did not contemplate
obtaining the food when he made the false pretence.
Blackburn, J. It is not everything obtained subsequently that is
obtained by the false pretence. I should have said that even in
Gardner's Gase^ the question of remoteness was one for the jury. Here,
however, the delivery of the van was the very object and aim of the
false pretence,]
No counsel appeared for the Crown.
1 Bell, C. C. M ; 28 L. J. (M.C.) 58. - See 7 Rep. 18 a. M Camp. 212.
* 1 Moo. C. C, 224, « Dearsly and Bell, C. C. 40. « 2 F. and F. 567.
346 Select Cases on Criminal Law. [part il
BoviLL, C.J. The question asked of us is, whether the verdict was
right upon the evidence. This we understand to mean whether there
was evidence to go to the jury; and so understanding it, we are all
of opinion that there was. The objection urged upon us has been
answered by my brothers "Willes and Blackburn in the course of the
case; and it is obvious that there are many cases within the miscliief
of the statute where the thing obtained is not in existence when the
false pretence is made. Thus a man, by false pretences, may induce
a tailor to make and send him a coat, or a friend to lend him money
which may consist of bank-notes not printed when the false pretence
was made on which the loan was granted. So also a man might obtain
coals which were not got (and therefore not a chattel in the eye of the
law) at the time of making the pretence. It is absurd to say that the
chattel obtained must be in existence when the pretence is made.
The pretence must, indeed, precede the delivery of the thing obtained ;
but at what distance of time? What is the test? Surely this, that
there must be a direct connection between the pretence and the
delivery — that there must be a continuing pretence. Whether there
is such a connection or not is a question for the jury. In Gardner's
Case ^ the prisoner obtained, at first, lodgings only ; and, after he had
occupied the lodgings more than a week, he obtained board ; and it
was held that the false pretence was exhausted by the contract for
lodging; the obtaining board not having apparently been in contem-
plation when the false pretence was made. It is true that in Bryan's
Case"^ the contract was for board as well as lodging: but there the
indictment was for having obtained sixpence as a loan some time after
the contract for board and lodging had been entered into ; and it is
clear that the obtaining the loan was as remote from the false pretence
under which the contract for board and lodging had been entered into,
as the obtaining of the board was from the false pretence made in
Ga/rdner's Case\ In the present case, when the false pretence was
made and the order given, it was never contemplated that the matter
should rest there; and we have no difficulty in holding that there was
a continuing pretence, and a delivery obtained thereby.
*****
Conviction affijined.
[See Regina v. Closs, supra, p. 184.]
1 Dearsly and BeU C. C. 40. « 2 F. and F. 5C7.
SECT. XII.] TItv Queen v. Killuuu. o47
Chapter III. The Right Obtained.
[OhUiining a mere right to possession, aitd not ownership, does not
suffice.^
THE QUEEN v. KILHAM.
Crown Case Reserved. 1870. L.R. 1 C.C.R. 261.
Case stated by the Recorder of York.
Indictment under 24 and 25 Vict. c. 96, a. 88, for obtaining goods
by false pretences. The prisoner was tried at the last Easter Quarter
Sessions for York. The prisoner, on the 19th of March last, called at
the livery stables of Messrs Thackray, who let out horses for hire, and
stated that he was sent by a Mr Gibson Hartley to order a horse to be
ready the next morning for the use of a son of Mr Gibson Hartley, who
was a customer of the Messrs Thackray. Accordingly, the next morn-
ing, the prisoner called for the horse, which was delivered to him by the
ostler. The prisoner was seen, in the course of the same day, driving
the horse, which he returned to Messrs. Thackray's stables in the
evening. The hire for the horse, amounting to Is., was never paid by
the prisoner. The prisoner was found guilty.
The question was, whether the prisoner could properly be found
guilty of obtaining a chattel by false pretences within the meaning of
24 and 25 Vict. c. 96, s. 88.
*****
BoviLL, C.J. To constitute an obtaining V)}' false pretences it is
equally essential, as in larceny, that there shall be an intention to
deprive the owner wholly of his property ; and this intention did not
exist in the case before us. In support of the conviction the case of
Reg. V. Bolton^ was referred to. There the prisoner was indicted for
obtaining, by false pretences, a railway ticket with intent to defraud
the company. It was held that the prisoner was rightly convicted,
though the ticket had to be given up at the end of the journey. The
reasons for this decision. do not very clearly appear; but it may l)e dis-
tinguished from the present case in this respect : that the prisoner, by
using the ticket for the purpose of travelling on the railway, entirely
converted it to his own use for the only purpose for which it was
capable of being applied. In this case the prisoner never intended
to deprive the prosecutor of the horse or the property in it, or to
1 1 Den. C. C. 508; 19 L. J. (.M.C.) 07.
348 Select Cases on Criminal Law. [part ii.
appropriate it to himself, but only intended to obtain the use of the
horse for a limited tiuie. The conviction must therefore be quashed.
Conviction quashed.
[But if ownership he criminnlly obtained, the crime is False Pretences
{and cannot he Larcemj).'\
[See Rex v. Harvey, supra p. 214.]
REGINA V. WILSON AND MARTIN.
Stafford Assizes. 1837. 8 Carrington and Payne 111.
Larceny. The prisoners were indicted for stealing a £5 note and
two sovereigns, the property of Robert Parker.
Mr Robert Parker said, " I am a farmer. I was. on the 20th of
June, walking towards Walsall, when I saw the prisoner Peter Wilson.
He pointed to the ground and said, ' There is a purse.' He picked it
up. I said, 'We had better have it cried; as some one may own it.'
He replied, ' Some one to whom it does not belong may say it is his,
and get it from us.' We walked on, and I said, ' We had better see
what the purse contains.' He replied, ' Not here, as there are men at
work who will see us.' We went about twenty yards further, and the
prisoner Wilson opened the purse and took out what appeared to me
to be a gold watch chain, and two seals. He said he did not know the
value of them, but there was a gentleman on the other side of the road
who could pi'obably tell us. This was the prisoner Ambrose Martin.
The things were shewn to him ; and he said he was in the trade, and
asked how we came by the articles. I said we had found them. The
prisoner Martin tlien said it was a very prime article, and worth £14,
and that we should divide it between us ; and he added that, as we
found it on the road, it belonged to us and no one else. The pri.soner
Wilson said he would take the things to his master ; but the other
prisoner said he had no right to do so ; and he also said, that if I would
SECT. XII.] Eef/lna v. Wilson and Martin. 349
buy the other man's share he would give mo £18 for the articles, .-md
get a good prolit for himself besides. Ue added that he was the
brother of Mr Button, the watch-maker, whom I knew. The prisoner
Wilson had gone on a little way, when he was called back by the other
prisoner, who asked him if he would take £7 for his share. This ho
agreed to do. I gave him a £5 note and two sovereigns, and took the
chain and seals.
Evidence was given to shew that the prisoners were connected
together, and that the supposed valuable articles were worth only a few
shillings.
Coleridge, J. Is this a larceny ?
Beadoa, for the prosecution, cited the case of Bex v. Moore (1 Leach
314).
Coleridge, J. In that case nine of the judges thought that the
money charged to have been stolen was given as a pledge ; so that the
possession of it only was parted with by the prosecutor, and the
property not. In this case the prosecutor intended to part with the
money for good and all, and to have the articles. If the party meant
to part with the proj^erty in the money as well as the possession of it, I
am of opinion that it is no larceny. Here the prosecutor meant to
part with his money for ever.
Beadon cited the case of Rex v. Rohson (R. and R. 413).
Coleridge, J. The party there had only the possession of the
money given to him as a stakeholder. When this prosecutor parted
with his .£7, he never intended to have it back again, but meant
to sell the chain and seals for himself. The prisoners must be
acquitted.
Verdict, Not guilty.
The prisoners were afterwards tried again, the oflence being then
laid as a conspiracy to defraud the prosecutor ; and were convicted.
[There is no sufficient Obtaining, if the ownership was only to pass
conditionally, and the condition has not been fulfilled.^
THE QUEEN v. RUSSCTT.
Crown Case Reserved. 1892. L.R. [1892] 2 Q.B.D. 313.
Case stated by the deputy-chairman of the Gloucestershire Quarter
Sessions.
The prisoner was tried and convicted upon an indictment, charging
350 Select Cases on Criminal Law. [part ii.
Lini with having feloniously stolen, on March 26, 1892, the sum of £8
in money, of the moneys of James Brotherton. It appeared from the
facts proved in evidence that on the day in question the prosecutor
attended Winchcomb fair, where he met the prisoner, who offered to
sell him a horse for £,'2i. He subsequently agreed to purchase the
horse for £23, £8 of which was to be paid down; and the remaining
£15 was to be handed over to the prisoner either as soon as the prose-
cutor was able to obtain the loan of it from some friend in the fair
(which he expected to be able to do) or at the prosecutor's house at
little Hampton, where the prisoner was told to take the horse if the
balance of £15 could not be obtained in the fair. The prosecutor, his
son, the prisoner, and one or two of his companions, then went into
a public-house, where an agreement in the following words was written
out by one of the prisoner's companions, and signed by prisoner and
prosecutor: "26th March, G, Russett sell to Mr James and Brother
(sic) brown horse for the sum of £23, Os. Qd. Mr James and Brother
pay the sum of £8, leaving balance due £15. Os. Od. to be paid on
delivery." The signatures were written over an ordinary penny stamp.
The prosecutor thereupon paid the prisoner £8. The prosecutor said
in the course of his evidence : " I never expected to see the £8 back,
but to have the horse." The prisoner never gave the prosecutor an
opportunity of attempting to borrow the £15, nor did he ever take or
send the horse to the prosecutor's house; but he caused it to be
removed from the fair under circumstances from which the jury inferred
that he had never intended to deliver it.
It was objected on behalf of the prisoner that there was no
evidence to go to the jury ; on the ground that the prosecutor parted
absolutely with the £8, not only with the possession, but with the
property in it ; and, consequently, that the taking by the prisoner was
not larceny, but obtaining money by false pretences, if it was a crime
at all. The objection was overruled. In summing up, the deputy-
chairman directed the juiy that if they were satisfied from the facts
that the prisoner had never intended to deliver the horse, but had gone
through the form of a bargain as a device by which to obtain the
prosecutor's money, and that the prosecutor never would have parted
witli his £8 had he known what was in the prisoner's mind, they should
find the prisoner guilty of larceny.
The question for the Court was whether the deputy-chairman was
right in lea\ ing the case to the jury.
Gwyiiioe Jamtti, I'or the prisoner. The conviction was wrong. The
only offence disclosed was that of obtaining money by false pretences.
There was no evidence to go to the jury upon a charge of larceny. The
SECT. XII.] The Queen v. Rmsett. 361
propcu-ty ill the money passed to tliu prisoner at the time wh'-n it was
handed to him by the prosecutor, who admiLtedly never expected to see
it again; the receipt given for the money is strong e^ndence of the
change of property.
The case is distinguishable from Reg. v. Backmas(er^ ; for in that
case the question was whether the prosecutor expected to liave his
money back. There is in the present case a breach of contract, for
which the prosecutor has a civil remedy; and it is immaterial that
the prisoner in making the contract had a fraudulent intent: Hex v.
Harvey^.
* * * * »
Pollock, B. ...The rule of law has long been acted on, that where
the prosecutor has intentionally parted with the property in his luoney
or goods as well as with their possession, there can be no larceny, ^ly
mind has therefore been directed to the facts of the case, in order to see
whether the prosecutor parted with his money in the sense that he
intended to part with the property in it. In my opinion, he certainly
did not. This was not a case of a payment made on an honest contract
for the sale of goods, which eventually may, from some cause, not be
delivered, or a contract for sale of a chattel such as in Rex v. Harvey*.
From the first the prisoner had the studied intention of defrauding the
prosecutor. He put forward the horse and the contract ; and the prose-
cutor, believing in his bona tides, paid him £8, intending to complete
the purchase and settle up that night. The prisoner never intended to
part with the hoi'se, and there was no contract between the parties.
The money paid by the prosecutor was no more than a payment on
account.
Hawkins, J. I am entirely of the same opinion. In my judgment
the money was merely handed to the prisoner by way of deposit, to
remain in his hands until completion of the tran.saction by delivery of
the horse. He never intended, or could have intended, that the
prisoner should take the money and hold it, whether he delivered the
horse or not. The idea is absurd ; his intention was that it should be
held temporarily by the prisoner until the contract was completed,
while the prisoner knew well that the contract never would be com-
pleted by delivery. The latter therefore intended to keep and steal the
money. Altogether, apart from the cases and from the principle which
has been so frequently enunciated, I should not have a shadow of doubt
that the conviction was right.
A. L. iSjiiTH, J. The question is whether the prisoner has been
guilty of the offence of larceny by a trick or that of obtaining money
1 20 Q. B.D. 182. 2 1 Leach, 407; supra, p. 214.
352 Select Cases on Criminal Law. [part ii.
by false pretences ; it has been contended on his belialf that he could
only have been convicted on an indictment charging the latter offence ;
but I cannot agree with tliat contention. The ditierence between the
two offences is this. If possession only of money or goods is given, and
the property is not intended to pass, that may be larceny by a trick ;
the reason being that there is a taking of the cliattel by the thief
against the will of the owner. But if possession is given and it is
intended by the owner that the property shall also pass, that is not
larceny by a trick, but may be false pretences ; because in that case
there is no taking, but a handing over of the chattel by the owner.
This case, therefore, comes to be one of fact ; and we have to see
whether there is evidence that, at the time the £8 was handed over,
the prosecutor intended to pass to the prisoner the property in that
sum, as well as to give possession. I need only refer to the contract,
which provides for payment of the balance on delivery of the horse,
to shew how impossible it is to read into it an agreement to pay the £8
to the prisoner, whether he gave dehvery of the horse or not ; it was
clearly only a deposit by way of part payment of the price of the horse,
and there was ample evidence that the prosecutor never intended to
part with the property in the money when he gave it into the prisoner's
possession.
Wills, J. I am of the same opinion. As far as the prisoner is
concerned, it is out of the question that he intended to enter into
a binding contract ; the transaction was a mere sham on his part.
The case is not one to which the doctrine of false pretences will apply ;
and I agree with the other members of the Court that the conviction
must be affirmed.
Conviction affirmed.
[EcrroE's Note. The ruling in this case, that Eussett never became the owner
of the eight pounds, and therefore never "obtained" them, may be supported on
either (or on both) of two grounds : — (1) that the arrangement between the parties
included an implied agreement that the instalment of £8, though placed in the
prisoner's hands, should not become his property until delivery of the horse;
(2) that the arrangement (whatever its terms) was, in law, wholly void — inasmuch
as there was no consensus voluntatum, the prisoner never having any genuine in-
tention to contract — and it therefore could confer on the prisoner no rights what-
ever (though he himself would be estopped from denying its validity). This latter
ground, which is suggested by Pollock, B., and Wills, J., has the advantage
of involving no conjectural assumption as to the prosecutor's intentions with
regard to a contingency which possibly never occurred to his mind at all. Having
been present at the hearing, I may mention that these two learned judges em-
phasized this latter ground in their actual word.s still more distinctly than appears
from the printed report. My notes shew that Pollock, B., said, "There was no
honest contract. Axid where one contracting jjarty has no intention of ever
SECT. XII.] The Queen v. Ilussctt. 353
performing his contract, the other party is entitled to treat it as null, and to
bring trover for anything which he has delivered under it." And WiUh, J., Buid,
"He falsely represented that he had a contracting mind. This was a false pretence,
not as to a merely extraneous fact, but as to one which goes to the root of the
contract; so that it prevented it from ever becoming a contract at all." An to this
principle, the student may refer to Rerj. v. Buckmaxter (L. K., 20 Q. B. D. 18'2) and
to the judgment of Mathew, L.J., in Cavalier v. Pope (L. R., 11)05 2 K. B. 757).
The case is closely parallel to that of Rex v. Pratt, (1 Moody 200).
The judges who decided Reg. v. Russet t did not express themselves as over-
ruUng Rex v. Harvey (supra, p. 214) ; and the two cases are clearly distinguishable.
For, of the two grounds on which the decision in Eussett's case may be supported,
the former is not applicable to Harvey's, inasmuch as Harvey clearly bought the
horse on credit, though only a short credit; and the latter is not applicable, inas-
much as there was no finding by the jury that Harvey, from the outset, had never
had any intention of paying the purchase-money.
The following old case, that of Rex v. Gilbert, is curiously similar to Russett's
case — except that in it, the fraudulent party is not the vendor but the purchaser.]
REX V. GILBERT.
Bedford Assizes. 1828. 1 Moody 185.
Indictment for stealing four oxen.
It appeared that one Baker, a servant of the Marquis of Tavistock,
had four oxen to sell at Ampthill Fair, and the prisoner agreed to
purchase them for <£48. 10s., and to pay ready money for them. Baker
proposed to mark the oxen, but the prisoner opposed it, and said he
would pay for them by-and-bye, at the King's Arms. Baker went to
the King's Arms at the appointed time, but the prisoner was not there ;
and on going back to the market he found that the prisoner had driven
away the oxen and sold them, and he could not be found till some time
after, when he was apprehended. Baker, on the ti-ial. swore that he
did not consider the oxen to have been sold and delivered to the
prisoner until the money should be paid.
Gakrow, B., left it to the jury to say if they believed the prisoner
originally 'intended to convert the oxen to his own use without paying
for them ; and they returned for answer that they believed he never
had any intention of paying for them.
The Judges were unanimously of opinion, that, under these circum
stances, the prisoner was properly convicted, the jury having found
that tlie prisoner never meant to pay for the oxen.
K. 23
354 Select Cases on Criminal Law, [part ii.
[And there is no stifficient obtaining if possession is given hy an Agent
who, though intending to pass the ownership, has no authority
to do so.]
THE QUEEN v. STEWART AND WIFE.
Kent Assizes. 1845. 1 Cox 174.
The prisoners were indicted for larceny, under the following cir-
cumstances. They passed for husband and wife; and had so taken
a house at Tunbridge Wells. Mrs Stewart went to the shop of the
prosecutor, selected the goods in question to the amount of £10, and
ordered them to be sent to her home. The prosecutor accordingly
despatched the goods by one Davies, and gave him strict injunctions
not to leave them without receiving the price. Davies, on arriving at
the house, told the two prisoners he was instructed not to leave the
goods vnthout the money or an equivalent. After a vain attempt on the
part of Mr Stewart to induce Davies to let him have the property on
the promise of payment on the morrow, he, Stewart, wrote out a
cheque for the amount of the bill and gave it to Davies, requesting
him not to present it until the next day. It was drawn on the London
Joint Stock Bank, Prince's-street, London. Davies having left the
goods, returned with the cheque to his employers. It was presented
at the Bank, in London, the next morning, when it was dishonoured
for want of effects. It was also proved that, although the prisoner
had opened an account at the said Bank, it had been some time before
overdrawn, and several of his cheques had been subsequently dis-
honoured.
Jones, Serjt., for prisoners, submitted that against the male
prisoner the charge of larceny could not be sustained. The shopman
parted not only with the possession of the goods, but also with the
property in them. Nor was any false representation made to him to
induce him so to do. The prisoner requested that the cheque might
not be presented until the next day ; but it was presented on the next
morning, and had never been taken to the banking-house since.
Although there were no funds there in the morning, it did not follow
that provision might not have been made for the cheque in the course
of the day. This is like the case of Rex v. Parker (7 C. and P. 825),
where the prisoner was charged with falsely pretending that a post-
dated cheque, drawn by himself, was a good and genuine order for £25,
whereby he obtained a watch and chain : there the prisoner represented
as here, that he had an account with the bank, and had authority to
SECT. XII.] The Queen v. Stewart and Wife. 355
draw the cheque, both which were proved to be false, and the Court
held the case one of false pretences.
Aldersok, B. It is for you to shew that the prisoner had reason-
able ground for believing that the cheque would be paid. The case
seems to me to approach more nearly to Hex v. Small (8 C. and P. 46)
than to Hex v. Parker. In the former, a tradesman was induced to
send his goods by a servant to a place where he was met by the
prisoner, who induced the servant to give him the goods in exchange
for a counterfeit crown piece ; and it was held to be larceny. If, in
consequence of a fraudulent representation of the party obtaining
them, the owner of goods parts with the possession, he meaning to
part also with the property, it is not larceny, but a mere cheat. But
if the owner does not mean to part even with the possession, except in
a certain event which does not happen, and the prisoner causes him to
part with them by means of fraud, he, the owner, still not meaning to
part with the property, then the case is one of larceny. Here, if the
owner had himself carried the goods and parted with them as the
servant did, no doubt it would have been a case of false pretences : or
if the servant had had a general authority to act, it would have been
the same as though the master acted. But in this instance he had but
a limited authority, which he chose to exceed. I am of opinion, as at
present advised that if the prisoner intended to get possession of these
goods by giving a piece of paper, which he had no reasonable ground to
believe would be of use to anybody, and that the servant had received
positive instructions not to leave the articles without cash payment,
the charge of larceny is made out.
Chapter IV. The subject-matter of the Rigeit.
\Ii must he personal property.^
REGINA V. PINCHBECK
Central Criminal Court. 189G. Sessions Papers cxxiir. 205.
[Kent Pinchbeck was indicted, in the first four counts, for unlaw-
fully obtaining from Charles Eames a large quantity of bricks and
23—2
856 Select Cases on Criminal Law. [part ii.
other building materials, and other property from other persons, by
false pretences, -with intent to defraud. There were four further
counts, for obtaining credit by fraud.
The prosecutor's evidence was as follows. "I am a builder at
"Watford. On Sept. 28th, 1894, I received this letter with the
prisoner's signature (I have seen him write); and with the address
*York Buildings, Adelphi.'" (The letter stated that the writer was
desirous of obtaining tenders for the erection of several pairs of villas
at Northwood, and that information could be obtained at York Build-
ings.) ''Before I received that letter I had had no dealings with the
prisoner and did not know him. The prisoner, in an interview, told
me that the houses were to be erected for a client of his, Miles Atkin-
son, of Blackheath, a gentleman with a lot of money ; and that as soon
as we had pressed far enough with the work the money would be paid
by him. I believed in, and relied on, his statement about Miles
Atkinson at the time.... It was agreed that I should build a pair of
villas for £1030 to be paid by instalments. ...As the work went on, 1
made efforts from time to time to obtain payment, with the result that
I received altogether £460."
Evidence was also given that Miles Atkinson (otherwise Wells)
was a man who was employed as a collector by the Singer Machine
Company, and who gave Kent Pinchbeck as a reference when he
applied for that situation.]
Booth, for the prisoner, submitted that the first four counts of the
indictment should be withdrawn from the jury, upon the ground that
what was alleged by the indictment to be obtained by false pretences
was real property; and, as real property could not be the subject of
larceny, it could not be the subject of an indictment for obtaining it
by false pretences. The prisoner had not obtained anything in the
fonn of a chattel which he could carry away; for no property passed
to him in any of the building material until it became part of a house,
and it could not be said that the labour which was exerted for him was
either "a chattel, or money, or valuable security."
Hawkins, J., in leaving the case to the jury, directed them to
return a verdict of Not guilty upon the first four counts.
Verdict, Guilty upon the last four counts for obtaining credit by
fraud.
SECT. XII.] Regina v. Ilobinsou. ;i57
[And of sujficient value to he larcenalAc.^
REGINA V. ROBINSON.
Crown Case Reserved. 1859. P>kll 35.
The following case was reserved by the Recorder of Liverpool.
The prosecutor, who resided at Hartlepool, was the owner of two
dogs, which he advertised for sale. The prisoner, Samuel Robinson,
having seen the advertisement, made application to the prosecutor to
have the dogs sent to him at Liverpool on trial, falsely pretending that
he was a person who kept a man-servant. By this pretence the prose-
cutor was induced to send the dogs to Liverpool, and the prisoner
there obtained possession of them with intent to defraud, and sold
them for his own benefit. The dogs were pointers, useful for the
pursuit of game, and of the value of £5 each.
At the Liverpool Borough Sessions, holden in December 1858, the
prisoner was indicted, convicted, and sentenced to seven years' penal
servitude, under the statute 7 and 8 Geo. IV. c. 29, s. 53.
On behalf of the prisoner a question was reserved and is now
submitted for the consideration of the Justices of either Bench and
Barons of the Exchequer, viz., whether the said dogs were chattels
within the meaning of the said section of the statute, and whether the
prisoner was rightly convicted.
Littler, for the prisoner. A dog is not "a chattel" within the
meaning of the statute. At common law no larceny could be com-
mitted of a dog. lb is laid down (Lambard's Eirenarcha, 267) that
"it is felonie to steale any the moveable goods of any person; but
because it may in some cases bee doubted whether the things so taken
are to be numbered amongst moveable goods or no I will proceed in
particularitie" — then he says, "to take dogges of any kind, apes, parats,
singing birds or such like, though tliey be in the house, is no felonie";
and Dalton adds {Country Justice, 372): "No, not by taking a blood-
hound or mastiff; although thero is good use of them, and that a man
may be said to have a property in them so as an action of trespjiss
lieth for taking them." And by statute it is not to this day made
larceny to steal a dog. Eor, by section 31 of the very same statute
under which the prisoner has been convicted, the stealing of a dog was
made punishable by fine only, and by a three months' imprisonment in
default ; and yet, if the intention of the legislature were that section
53 should be applicable to dogs, the obtaining a dog by fabfe pretejices
•would involve, as in this case, penal servitude.
358 Select Cases on Criminal Law. [part ii.
The present Dog Stealing Act, 8 and 9 Vict. c. 47, by section 1,
repeals the provisions of 7 and 8 Geo. IV. c. 29 so far as it relates to
dog stealing; and, by section 2, enacts that to steal a dog shall be
a misdemeanor, for which the offender shall be liable, on summary
conviction, to imprisonment and hard labour not exceeding six months:
and the same statute enacts that a second offence shall be an indictable
misdemeanor. [8 and 9 Vict. c. 47 ss. 1, 2 are now reincorporated in
24 and 25 Vict. c. 96 s. 18.]
Brett, for the Crown. It cannot be disputed that for some purposes
dogs are chattels. They are chattels which pass to the executor, and
for which trover will lie; 1 Williams on Executors, Com. Dig. Action
sur Trover, Ireland v. Higgins ^, Wright v. Ramscott \ The Case of
/Swans ^; but it is said they are not chattels within this section,
because they are not the subject of larceny at common law. The
statute relating to false pretences was passed to provide a remedy in
cases of cheating. The reason which is assigned why dogs should not
be the subject of larceny at common law is, not that they were not
always considered to be chattels, but because "they are of so base
a nature that a man shall not die for them" ; but death never was the
punishment for cheating ; and, therefore, the reason why dog stealing
should not be a larceny does not apply.
Lord Campbell, C.J. It is admitted that dog-stealing is not
larceny at common law, and a specific punishment of a milder cha-
racter has been enacted by the later statute, which makes the offence
a misdemeanor. That being so, it would be monstrous to say that
obtaining a dog by false pretences comes within the statute 7 and 8
Geo. IV. c. 29 s. 53, by which the offender is liable to seven years'
penal servitude. My brother Coleridge used to say that no indictment
would lie under that section unless, if the facts justified it, the
prisoner could be indicted for larceny, and that is now my opinion.
The other four Judges concurred.
Conviction quashed.
[See The Case op Peacocks, supra, p. 250.]
1 Cro. Eliz, 125, ' Wms. Saund. 83. ' 7 Rpp. 15 6.
SECT, xiii.] Regiim v. Gruncell and Hoj^Jdnsoii. 359
SECTION XIII.
RECEIVING STOLEN GOODS.
[The goods must already have been stolen.^
REGINA V. GRUNCELL AND HOPKINSON.
Central Criminal Court. 1839. 9 Caurington and Payne 365.
The prisoner Gruncell was iudicted for stealing a quantity of hay,
the property of his master ; and the prisoner Hopkinson with receiving
it, well knowing it to have been stolen.
It appeared that the prisoner Gruncell, who was a carter and was
allowed by his master a small quantity of hay for the use of the horses
on their journey to and from London, on the day mentioned in the
indictment took from his master's stables two trusses of hay above the
quantity which was allowed for the horses ; and that the prisoner
Hopkinson, who was the ostler at a public-house where the waggon
stopped on the journey, came to the tail of the waggon, and received
the two trusses of hay from the other prisoner, and carried them from
the waggon to the stable.
Adolphus submitted that the indictment was wrongly framed as to
the prisoner Hopkinson in charging him with being a i-eceiver. Because,
if he had committed any offence at all, it was that of stealings as the
hay, being in the master's waggon, was in the master's possession in
point of law, and the act of the prisoner, in removing it from the
waggon, constituted a larceny, and not a receiving.
MiREHOUSB, Common Serjeant, thought the indictment properly
framed, but said he would consult Mr Baron Parke, who was in the
adjoining Court, He accordingly did so, and, on his return, said — " The
learned Judge has gone very carefully, with me and Mr Clark, through
the cases on the subject, and he is clearly of opinion with me, that the
indictment is properly framed ; and he is so on this ground, that, a8
the hay was not hay appropriated by the master for the horses, the
larceny was complete the moment it got into the cart animo furandi.
If it had been hay allowed for the horses, which had been stolen, it
would have been otherwise."
Yerdict, Guilty.
360 Select Cases on Criminal Law, [part ii.
\And must not have been subsequently returned to the owner.^
REGINA V. VILLENSKY.
Crown Case Reserved. 1892. L.R. [1892] 2 Q.B. 597.
Case stated by the Chairman of tlie County of London Sessions,
from which the following facts appeared : —
Jacob Yillensky and Mark Yillensky were tried on an indictment
charging them with having feloniously received two dozen night-
gowns, the goods of Carter, Paterson and Co., before then feloniously
stolen by one George Clark.
The goods in question were packed in a parcel consigned by
Messrs Mclntyre, Hogg, INIarsh and Co. of the City of London, to
Messrs Crisp and Co, of Holloway, and the parcel was delivered by
the consignors to Carter, Pateison and Co., who are common carriers,
for the conveyance of the consignees. In the ordinary course it
arrived at the Goswell Road depdt of Carter, Paterson and Co., and
there, also in the ordinary course, it was (together with many other
parcels) unloaded from the van in which it had been brought. George
Clark, who pleaded guilty, was a carman in the employ of Carter,
Paterson and Co., and took part in the unloading. His conduct in
reference to this particular parcel excited the suspicion of a fellow-
servant named Roberts, by whom he was seen to remove it from that
part of the platform appropriated to Holloway parcels, and transfer it
to the part appropriated to Spitalfields parcels. On examining the
parcel, Roberts found on it a label addressed to "Jacobs and Co.,
Hanbury Street, Spitalfields." The prisoner, Jacob Yillensky, resided
and carried on business there as a chandler with the other prisoner,
Mark Yillensky (his son), and they were known by the name of Jacobs.
Roberts reported to Mr Waters, the superintendent of Carter, Paterson
and Co., the finding of the parcel thus addressed.
The superintendent, having inspected the parcel, gave directions
that it should be replaced in the Spitalfields part of the platform where
Roberts had found it ; and that a special delivery-sheet should be made
out according to the label "Jacobs and Co., Hanbury Street, Spitalfields,"
and that the parcel should be forwarded in a van to that address ; and
by his further directions two detectives travelled in the van to
Hanbury Street. It did not appear that either Mr Waters or Roberts
knew at this time who were the consignees to whom the parcel had been
addressed, and neither the consignors nor the consignees were informed
of the substitution of the false address, nor of the consequent action
of Mr Waters, nor was Clark, the thief, informed of it. The parcel
SECT. XIII.] Rcgma v. VillensJcy. 861
was received by both the Villcnskys in Hanbury Street under circum-
stances pointing clearly to the conclusion of complicity with Claik, and
knowledge on their part that it had been stolen. Upon that point no
question arose.
At the conclusion of the evidence, the learned Chairman ofiered to
amend the indictment by substituting the names of the consignees,
Crisp and Co., as the owners of the property, for those of the bailees,
Carter, Paterson and Co. ; but the prosecution declined to ask for any
amendment. It was then objected by counsel for the defence that
there was no case to go to the jury ; inasmuch as at the time the parcel
■was received by the Villenskys it had ceased to be stolen property, the
bailees, Carter, Paterson and Co., having resumed actual possession of
it. He cited in support of his contention Heg. v. Dolan^ and Hey.
V. Schmidt^. The learned Chairman overruled the objection, and the
prisoners were convicted of felonious receiving, but were admitted to
bail pending the decision of the present case. . . .
Lord Coleridgk, C.J. There is no doubt that Clark stole these
goods and the other two prisoners intended to receive them ; but the
carriers, in whose name those responsible for the prosecution insisted
on the case going on, had in the meantime, before its receipt by the
prisoners, got hold of the property, which, by their special directions,
was sent off to the prisoners' house in a special van accompanied
by two detectives.
Pollock, B. It is, of course, frequently the case that when it is
found that a person has stolen property he is watched ; but the owner
of the property, if he wishes to catch the receiver, does not resume
possession of the stolen goods ; here the owners have done so, and the
result is that the conviction must be quashed.
*****
The other Judges concurred.
\^And must have reached prisoner's possession, actual or constructive^
REGINA V. WILEY.
Crown Case Reserved. 18.50. 2 Denison 37.
At the General Quarter Sessions for the county of Northumberland,
holden at Newcastle-upon-Tyne, on the 26th of February, a.d. 1850,
Bryan Straughan, George Williamson, and John Wiley, were jointly
i Deaisly. 436. " Law Eep. 1 C. C. 15.
S62 Select Cases on Criminal Law. [part it.
indicted under stat. 7 and 8 Geo. IV. c. 29 s. 54, for stealing and
receiving five hens and two cocks, the property of Thomas Davidson.
It was proved that, on the morning of the 28th day of January, in the
same year, about half past four, Straughan and Williamson were seen
to go into the house of John Wiley's father with a loaded sack that
was carried by Straughan. John Wiley lived with his father in the
said house, and was a higgler, attending markets with a horse and cart.
Straughan and Williamson remained in the house about ten minutes ;
and then were seen to come out of the back door, preceded by John
Wiley, with a candle, Straughan again carrying the sack on his
shoulders, and to go into a stable belonging to the same house,
situated in an enclosed yard at the back of the house, the house
and stable being on the same premises. The stable door was shut
by one of them, and on the policemen going in they found the sack on
the floor tied at the mouth, and the three men standing round it as if
they were bargaining, but no words were heard. The sack had a hole
in it, through which poultry feathers were protruding. The bag, when
opened, was found to contain six hens, two cocks, and nine live ducks.
There were none of the inhabitants up in the house but John WUey,
and on being charged with receiving the poultry, knowing it to be
stolen, " he said that he did not think he would have bought the hens."
The jury found Straughan and Williamson guilty of stealing the
poultry laid in the indictment, and John Wiley guilty of receiving the
same, knowing it to be stolen.
The Court told the jury that the taking of Straughan and Williamson
with the stolen goods as above by Wiley into the stable, over which he
had control, for the purpose of negotiating about the buying of them,
he well knowing the goods to have been stolen, was a receiving of the
goods by him within the meaning of the statute.
The question for the opinion of the Court was, whether the con-
viction of Wiley was proper
[The case was argued before live Judges, constituting the Court of
Criminal Appeal, created by 11 and 12 Vict. c. 78; but as the Court
was not unanimous, the case was re-argued before the twelve Judges.]
Otter, for the prisoner. The question is as to the meaning of the
word receiving. The statutes taken together shew that it is no longer
an offenceo merely to buy ; therefore the mere fact of admitting the
goods with a view to buying them is not a receiving There must be a
willing parting with the possession by the thief, and a willing taking
on the part of the receiver.
Lord Campbell, C.J. Can there not be a joint possession between
a receiver and a thief?...
SECT. XIII.] Regina v. Wikij. 363
Alderson, B. Suppose there was a larj^^o halo ; and A. a thief, had
hold of one end of it, and B. a receiver, had hold of the other end,
there would be actual possession in both. Here the question is only as
to the actual possession ; that may be in two persons. Reg. v. Parr
(2 M. and R. 346).
We have to decide whether the direction to the jury is right. It
is consistent with that direction that the thieves alone had actual
possession at the time of going into the stable. For all the circum-
stances set out in the case are not to be taken as incorporated into the
direction by the words "as above."
Liddell, for the Grown. The direction to tlie jury must be taken
to incorporate all the circumstances set out in the case. On the other
side the fallacy has been to confound constructive with joint actual
possession. Here the prisoner had the latter with the thieves. ...They
are all treating it as a chattel in their possession and power ; they were
only undecided as to the mode of partition.
Lord Campbell, C.J. If a man receives stolen goods for any
purpose malo animo, knowing them to be stolen, is he not a receiver!
Supposing the prisoner to have carried the sack, then he would have
been a receiver ; supposing him to have carried the candle, in order to
aid one of the thieves in carrying the sack, where is the legal difference?
The act was a joint act. It is difficult to see why the prisoner had not
joint possession of the sack as much as the other thief, who is not said
to have had the manual possession....
*****
V. Williams, J. I think the conviction right. I think the case
made out against the prisoner, if he is proved to have had possession of
the goods malo animo knowing them to be stolen. Here the knowledge
and the animus are clear. The only question is as to the possession.
I think it was only necessary for one of the party to have possession of
the goods ; the prisoner was proved to have had a common purpose
with the thieves, although he had not the manual possession. They
were all agents for each other, and the possession of the thieves was,
therefore, in law, the possession of the prisoner.
Platt, B. I think the conviction wrong. It seems to me that the
goods must have been in such a condition as to be under the domiiiioa
of the prisoner, and exclusive of that of the thief. If they all are to
be deemed in joint possession of them, the possession of the thieves
would be different in kind from that of the receiver; for in hiui ib
would be treated as a receiving, and in them as an asportation. I think
that the thieves here retained the control and possession, and never
intended to part with it until after their bargain was concluded.
364 Select Cases on Criminal Law. [part ii.
Patteson, J. I think the conviction wrong. I don't consider
a manual possession or even a touch essential to a receiving. But it
seems to me that there must be a control over the goods by the
receiver, which there was not here. How far the other circumstances
stated in this case might affect the question, I don't think we need
inquire, for, in my opinion, they are not brought before us for con-
sideration. The case as submitted to us, does not put the matter on
that ground. However, though I entertain some doubts on that point,
I am inclined to think that those additional facts would make no
difference.
♦ * * * *
Parke, B. I think the conviction wrong. We have only to
consider the precise point submitted to us in the case reserved. The
taking " as above " was said by the Chairman to amount to a receiving ;
that only incorporates so much of the transaction as relates to the
taking of the goods into the stable. We must not therefore speculate
on the question whether the three prisoners were all participating in
the wrongful act, or what would be the legal consequences to each of
their so doing. Receiving must mean a taking into possession actual
or constructive, which I do not think there was here. The prisoner
took the thieves into the stable, but he never accepted the goods in any
sense of the word except upon a contingency, which, as it happened, did
not arise. I think the possession of the receiver must be distinct from
that of the thief ; and that the mere receiving a thief with stolen goods
in his possession would not alone constitute a man a receiver.
*****
[Four of the Judges were for affirming the conviction, and seven for
quashing it. The conviction was therefore quashed.]
[And have been received by him with guilty knowledge.]
REGINA V. WOODWARD.
Crowx Case Reserved. 1862. Leigh and Cave 122.
The following case was stated by the Chairman of Quarter Sessions
for the county of Wilts.
At the Quarter Sessions of the Peace for the county of Wilts,
held at Marlborough, on the 16th day of October, 1861, before me,
SECT. XIII.] Reglna v. Woodward. 3G5
Sir John Wither Awdry, Knight, and others my fellows, Boiijiiiiiiu
Woodward, of Trowbridge, in the county of Wilts, dealer, was found
guilty of receiving stolen goods, knowing them to have been stolen,
and was thereupon sentenced to nine calendar months' imprisonment
with hard labour in the county gaol, where the prisoner now is, under-
going his sentence.
The actual delivei'y of the stolen property was made by the
principal felon to the prisoner's wife in the absence of the prisoner,
and she then paid sixpence on account ; but the amount to be paid was
not then fixed. Afterwards the prisoner and the principal met, and
agreed on the price, and prisoner jiaid the balance.
Guilty knowledge was inferred from the general circumstances of
the case.
It was objected that the guilty knowledge must exist at the time
of receiving, and that this was the time of the delivery to the wife ;
and that, when the wife received the stolen property, guilty knowledge
could not have come to the prisoner.
The Court overruled the objection ; and directed the jury that, until
the subsequent meeting, when the act of the wife was adopted by the
prisoner, and the price agreed upon, the receipt was not so complete as
to exclude the effect of guilty knowledge acquired at that meeting.
If the Court shall be of opinion that the above direction was
correct, the conviction to stand confirmed ; but if the Court should be
of a contrary opinion, then the conviction to be quashed.
This case was argued, on the 18th of January, 1862, before Erle,
C.J., Blackburn, J., Keating, J., Wilde, B. and Mellob, J.
Brodrick, for the prisoner There is no proof of a guilty know-
ledge in either the wife or the husband at the time when each
respectively received the goods. Further, there is no proof that the
wife ever gave the goods over to her husband at all. Receipt imports
a transfer of possession, and there is no proof of such transfer.
Blackburn, J. We do not require proof of transfer. That was
for the jury ; and they have found that he received the goods. The
only question for us is, whether he received them with a guilty know-
ledge.
Brodrick It is plain that in the Chairman's mind the receipt was
simultaneous with the payment of the balance. In Rey. v. Button^
Lord Denman says, " The receipt of stolen goods knowingly does not
of necessity comprise any series of acts : on the contrary, that oti'ence
is not committed at all unless the receipt and the knowledge are
1 11 Q.B. y29.
366 Select Cases on Criminal Law. [part ii.
simultaneous." It is absurd to say that payment of the balance con-
stituted a receipt, or was evidence of a receipt then taking place. If
it is anything, it is evidence of a receipt having previously taken place ;
and, if that was so, the guilty knowledge was subsequent to the
receipt. It is quite consistent with the case that the goods never came
into the prisoner's possession at all, but were disposed of by the wife
before he came into the transaction. ... Upon one of three grounds,
therefore ; either that the wife's receipt was presumably innocent, and
that a guilty receipt by the husband cannot be founded on it; or,
secondly, that there may have been no receipt by the husband, and
that the goods may never have come into his possession ; or, thirdly,
that, if they did, his receipt may well have been complete before the
guilty knowledge was acquired ; I submit that the conviction should be
quashed.
No counsel appeared for the Crown.
Erle, C.J. The argument for the prisoner has failed to convince
me that the conviction was wrong. The thief brought the goods to
the prisoner's house, and left them there, receiving sixpence on
account. That was no complete receipt. Subsequently the thief found
the husband, who then acquired a guilty knowledge, and with such
knowledge struck a bargain with the thief, and paid for the goods. If
the offer had not been satisfactory, the thief might have reclaimed the
goods.
Keating, J. The agreement for the sale of the goods was not
complete, until the husband met the thief. Then the transaction was
complete. What took place then amounted to a receipt by the
husband with a guilty knowledge. If that were not so, it would be
almost impossible to convict any receiver who was absent at the time
when the goods were actually delivered.
[The remaining three Judges also upheld the conviction.]
SECT, xiii.] Eiyhta v. JStrecter. 3G7
[The offence is now a felony whenever the original tahing was felonious
either at covimoti law or hij (he Larceny Act 1801.1
REGINA V. STKEETER.
CnowN Case Rkserveu. 1900. Editor's MS.*
At the West Sussex Quarter Sessions on June 28, 1900, William
Streetcr and Ellen Tickner were tried under an indictment ; the first
count of which charged them jointly with larceny in a dwelling house,
and the second count charged them jointly with feloniously receiving
goods and £27 in money knowing them to be stolen.
Ellen Tickner had been married for twenty-six years, and resided
with her husband at Stammerham. Streeter came to lodge with them ;
and remained there until on April 21 Mr Tickner turned hira out of the
house. On May 11, Ellen Tickner packed up two boxes, and labelled
them with Streetei-'s name, and handed them to a carrier. He delivered
them to Streeter, at Horsham. She then left her home during her
husband's absence, and joined Streeter. The husband, finding that money
and other articles of his were missing, gave information to the police.
It was found that the two defendants were living together as man
and wife, at Farnham; and in their house the missing articles were
found in the boxes which Tickner had sent to Streeter on May 1 1 ;
and in another box, which belonged to Streeter but the key of which
was in Ellen Tickner's purse, there was found a sum of £27.
The jury convicted Ellen Tickner on the count for larceny, and
Streeter on the count for receiving. Streeter's counsel objected that,
as the stealing of a husband's goods by his wife (though now made
felonious by the Married Women's Property Act) was not a felony
either at common law or under the Larceny Act 1861, the receiving
of goods so stolen did not come within that section of the Larceny
Act which renders the receiving of stolen goods, in certain cases, a
felony.
The Chairman accordingly reserved the point for the opinion of
the Judges.
Raven (with him Humphreys) for prisoner. At common law, a
wife did not commit larceny by taking her husband's goods even when
she went to join an adulterer ; and therefore the receiving of them by
the adulterer was not a receiving of stolen goods. And though the
wife's taking is now made a larceny by sees. 12 and 16 of the Married
Women's Property Act 1882, yet the adulterer's receiving is still not
felonious. For the Larceny Act 1861 (24 and 25 Vict. c. 96 s. 91)
1 A report of this case will also be found in L.R. [1900] 2 Q.13. COl.
368 Select Cases on Criminal Law. [part ii.
makes the receiving stolen goods with guilty knowledge a felony only
in cases where the original stealing " shall amount to a felony either at
common law or by virtue of this Act." And the stealing here is one
which only became felonious by a statute long subsequent to the
Larceny Act.
Matuew, J. The case of Reg. v. Smith (L.R. 1 C.C.R. 266) is in
point ; where it was decided that though stealing by a partner had
been made a felony under an Act of 1868, yet the receiving of goods so
stolen would not be within the Larceny Act.
Graham Campbell (with him llurt^t) for the Crown. The point has
hitherto been treated in the text-books as an open one; for though
Archbold thinks the adulterer cannot be indicted for a felonious
receiving, an opposite view is expressed by the latest editors of
Roscoe's " Criminal Evidence " and of Russell on Crimes. The de-
cision in Reg. v. Smith was spoken of by the late Mr Justice Stephen,
in his Digest of Criminal Law, as " instructive but most unfortunate."
[Mathew, J. Mr Justice Stephen did not mean that the decision
was an unsound construction of the statute ; but that it shewed an
unfortunate defect in the statute.]
Graham Campbell. Even if it be a valid decision, it is certainly
not one to be extended. Moreover it can be distinguished from the
present case. For the Larceny by Partners Act 1868 altered the
very definition of larceny ; the Married Women's Property Act merely
removed a technical disability peculiar to the wife, arising from her
unity of person with her husband.
Moreover, apart from the substantive offence of receiving, Streeter
was an accessory to the larceny by Mrs Tickner; and, as the Ac-
cessories Act (24 and 25 Vict. c. 94) makes it possible to indict an
accessory as if he were a principal, Streeter could be vaUdly convicted
on the present indictment. Reg. v. Caspar (9 C. and P. 289).
Wright, J. Probably that is not so ; but even if it were, such a
conviction must have been on the first count, whereas the present con-
viction is on the second.
Mathew, J. We are agreed that the case is determined by Reg.
V. Smith. Formerly there were two cases in which stealing did not
amount to larceny ; — where a partner stole from his partner, or a
wife from her husband. The legislature has now passed statutes which
correct these two defects, and make these persons criminally respon-
sible. But both statutes are subsequent to the Larceny Act. Now
section 91 of that Act is clear in its language, and it is limited to the
receiving of property the stealing whereof was a felony "either at
common law or by virtue of this Act," It was in neither way, but
SECT. xm.J lleyiua v. <Streeter. HO'J
under a statute passed long after the Larceny Act, that a wife hcciiinc
indictable for stealing her husband's goods.
WjtiGHT, J. In future cases of this kind there might, it seema, be
an indictment at common hiw for the receiving. Uut that was not the
form of the indictment here.
[Editou's Note. By common law, receivers of stolen Roods are guilty of a
misdemeanor, punishable with fine and imprisonment. The Larceny Act 18G1
(24 and 25 Vict. c. 96 s. 91) makes it a felony to receive goods which have been
feloniously stolen,]
SECTION XIV.
HIGH TREASON.
[Constructive compassiny of the King's death.']
REX V. Dr FLORENCE HENSEY.
King's Bencu. 1758. 1 Burrows 642.
[In 1758 the defendant was committed by warrant under the hand
and seal of the Earl of Holderness, one of His Majesty's principal
Secretaries of State, for high treason.
At the trial on June 12th, 1758, the evidence for tlie Crown con-
sisted chiefly of letters to and from the prisoner, which were alleged to
be a proof of overt acts of two different sorts of high treason, viz. of
compassing and imagining the death of the King, and also of adhering
to the King's enemies.]
Lord Mansfield, in summing up the evidence, said : — As to the
law, levying war is an overt act of compassing the death of the King.
Any overt act of the intention of levying war, or of bringing war upon
the kingdom, is settled to be an overt act of compassing the King's
death. Soliciting a foreign prince, even in amity with this Crown, to
invade this realm, is such an overt act ; and so was Cardinal Pole's
case. And one of these letters is such a solicitation of a forei;i;n
prince to invade the realm. Letters of advice and correspondence and
intelligence to the enemy, to enable them to annoy us or defend
themselves, written and sent in order to be delivered to tlie enemy,
are, though intercepted, overt acts of both these species of treason that
have been mentioned. And this was determined by all the Judges of
K. lil
370 Select Cases on Criminal Law. [part ii.
England in Gregg's case : where the indictment (which I have seen) is
much like the present indictment. There, the only doubt arose from
the letters of intelligence being intercepted and never delivered : but
they held that that circumstance did not alter the case.
As to the facts, in the present case, the jury are to consider
whether the letters were written by the prisoner at the bar, in order
to be delivered to the enemy, and with intent to convey to the enemy
such intelligence as might serve and assist them in carrying on war
against this Crown or in avoiding the destinations of our enterprises
and armaments against them.
[Constructive levying of war against the King."]
THE QUEEN v. DAMAREE AND PURCHASE.
Old Bailey. 1709. Foster 213; 15 Howell's State Trials 521.
The indictments charged, that the prisoners withdrawing their
allegiance &c. and conspiring and intending to disturb the peace and
public tranquillity of the kingdom, did traitorously compass, imagine,
and intend to levy and raise war, rebellion, and insurrection against
the Queen within the kingdom ; and that in order to complete and
effect these their traitorous intentions and imaginations, they on the
day of at with a multitude of people, to the number of 500,
armed and arrayed in a warlike manner &c., then and there traitorously
assembled, did traitorously ordain, prepare, and levy war against the
Queen, against the duty their allegiance &c.
It appeared upon the trial of these men, which I attended in the
students' gallery at the Old Bailey, that upon the 1 March 1709,
during Dr Sacheverell's trial, the rabble, who had attended the doctor
from Westminster to his lodgings in the Temple, continued together a
short space in the King's Bench Walks, crying, among other cries of
the day, " Down with the Presbyterians."
At length it was proposed, by whom it was not known, to pull down
the meeting-houses, and thereupon the cry became general, " Down
with the meeting-houses ! "; and some thousands immediately moved
towards a meeting-house of Mr Burges, a Protestant dissenting minister ;
SECT. XIV.] The Queen v. Dmnaree and Purchase. 37i
the defendant Damaree, a waterman in the Queen's service and in her
ivery and badge, putting himself at the head of them, and crvin^^
'Come on, boys, I'll lead you. Down with the meeting-houses ■ " Tbe^'v
soon demolished Mr Burges's; and burnt the pews, pulpit, and other
materials in Lincoln's-inn-fields. After they had finished at that place
they agreed to proceed to the rest of the meeting-houses; and hearing
that the guards were coming to disperse them, they agreed, for the
greater dispatch, to divide into several bodies, and to attack different
houses at the same time : and many were that night in part demolished
and the materials burnt in the street.
The prisoner Damaree put himself at the head of a party which
drew off from Lincoln's-inn-fields and demoHshed a meeting-house in
Drury-lane, and burnt the materials in the street; still cryin- that
they would pull them all down that night. ^
While the materials of this house were burning, the prisoner
Purchase, who had not, for aught appeared, been before concerned in
the outrages of that night, came up to the fire very drunk; and with
his drawn sword in his hand, encouraged the rabble in what they were
doing, and incited them to resist the guards, who were then just come
to the fire in order to disperse the multitude. He likewise assaulted
the commanding officer with his drawn sword, and struck several of
their horses with the same weapon ; and then, advancing towards the
guards, cried out to the rabble behind him, "Come on, boys, I'll lose my
life in the cause ; I will fight the best of them."
Upon the trial of Damaree, all the Judges present were of opinion
that the prisoner was guilty of the high treason charged upon him in th^
indictment : for here was a rising with an avowed intention to abolish all
meeting-houses in general; and this intent they carried into execution
as far as they were able. If the meeting-houses of Protestant dissenters
had been erected and supported in defiance of all law, still a rising in
order to destroy sucJi houses in general would faU under the rule laid
dmvn m Kelyng 70 with regard to the demolishing all disorderly
houses. But since the meeting-houses of Protestant dissenters are, by
the Toleration Act, taken under the protection of the law, the insur-
rection in the present case was to be considered as a public declaration
by the rabble against the Act, and an attempt to render it ineffectual
by numbers and open force.
Accordingly Damaree was found gudty, and had judgment of death
as in cases of high treason.
With regard to the case of Purchase, there was some diversity of
opinion among the Judges present at the trial; because it did not
appear upon the evidence, that he had any concern in the original
24 2
372 Select Cases on Criminal Lnw. [part ii.
rising, or was present at the pulling down any of the houses, or any
way active in the outrages of that night ; except his behaviour at the
bontire in Drury-lane, whither he came by mere accident, for aught
appeared to the contrary.
The jury therefore by the direction of the Court found a special
verdict to the effect already mentioned.
Upon this special verdict, which in substance took in the whole
transaction on the first of March, the Judges unanimously resolved that
for the reasons mentioned at Bamaree's trial, he and the others con-
cerned with him in demolishing and rifling the meeting-houses were
guilty of high treason in levying war against the Queen.
As to the case of Purchase, Chief Justice Trevor, Justice Powell
and Baron Price were of opinion that, upon the facts found, he was
not guilty of the charge in the indictment. But all the rest of the
Judges differed from them ; because the rabble was traitorously
assembled, and in the very act of levying war, when Purchase joined
them, and encouraged them to proceed, and assaulted the guards, who
were sent to suppress them. All this, being done in defence and
support of persons engaged in the very act of rebellion, involved him
in the guilt of that treason in which the others were engaged.
\What does not amount to War against the King.'\
REX V. THISTLEWOOD AND OTHERS.
Old Bailey Sessions. 1820. 33 State Trials 381.
[Arthur Thistlewood, John Thomas Brunt, and nine others were
indicted for high treason. The principal overt act assigned was the
compassing a levying of war against the King, in the " Cato Street
Conspiracy"; a plot to assassinate the King's cabinet ministers when
assembled at dinner at Lord Harrowby's house in Grosvenor Square.
Another indictment charged them with the murder of a constable, who
was shot by them in resisting their arrest at their place of assembly in
Cato Street (now Horace Street), Edgware Road.
The prisoners severed in their challenges ; and accordingly had to
be tried separately.]
SECT. XIV.] Rex V. Thistle wood ami others. .'J 7 3
On the triul of Brunt, Richauds, C.B., in suinnuiig up, said: ...It
is admitted distinctly by the learned counsel for tlie prisoner, and by
the prisoner himself — it is admitted, and it is also proved, that it was
a conspiracy formed for a most nefarious purpose. It is admitted that
it was a conspiracy founded in the diabolical intention to destroy Ilia
Majesty's Cabinet Council ;— fifteen of those persons who transacted
the principal affairs of Government, against whom there had beeti no
personal indignation on the part of any body. If, however, this
terrible purpose was the only purpose which this conspiracy embraced,
there is no high treason in it, because the object is confined to the
destruction only of those fifteen noble Lords and Gentlemen, so there
is a particular purpose only to be answered. But it is said on the other
side that this particular purpose is only intended as one of the steps to
the general purpose of subverting the constitution. . . .
The object of the prisoner and his associates was to destroy fifteen
of the King's Ministers as they sat at dinner in the unsuspecting hour
of cheerfulness, by a degree of violence, and in the prosecution of a
plan, which one cannot think of without shuddering; that is admitted.
Is that all the purpose? If that is all the purpose of these men, the
prisoner is not guilty of high treason. But you are to ask yourselves,
gentlemen, whether that could be the sole purpose ; why are the fifteen
principal Ministers of the King to be destroyed in this way 1 If you
attend to the evidence of Adams, and many of the others, there is no
question at all that there was an ulterior plan and intention ; and that
ulterior plan and intention, beyond all question, proves directly, if you
believe the evidence, the treason charged against the prisoner at the
bar. It is stated that it was an absurd project ; so absurd, that it is
not only improbable, but impossible that it should be ascribed to any
reasonable being. It has been said, very truly, that the attempt or the
project to destroy the King's Ministers is such that one knows not
how to deal with the supposition of it. But it is proved — it is true;
the prisoner has stated it, and his counsel are obliged, by the force of
evidence, to admit it. But then they contend, that it was for no other
project: you will judge whether that is the case.
Verdict, Guilty.
37-i Select Cases on Criminal Law. [part ii.
[What does not amount to War against the King.^
BEGINA V. JOHN FROST AND OTHERS.
Monmouthshire Special Commission. 1839,
4 State Trials (N.S.) 85.
[Indictment for high treason by levying war against the Queen.
The evidence showed that Frost, in command of a body of some 5000
persons, many of whom were armed, had entered Newport; and had
fired upon, and broken into, the Westgate Inn, which was occupied by
a detachment of soldiers. A conflict took place, in which several of
the rioters were killed.]
TiNDAL, C.J., in the course of his summing up, said: ...The learned
Attorney General stated the case on the part of the Crown against the
prisoner to be this — that the prisoner at the bar had brought down to
the town of Newport a very large multitude of persons, armed and
arrayed in a Avarlike manner ; and that the plan was to get possession of
the town of Newport, to break down the bridge, and stop the mail, so
that, the mail not arriving at Birmingham for some time, it would be a
signal for a general rising in Birmingham and Lancashire
On the part of the prisoner, the learned counsel who appear for him
state, and I think are justified in so stating, that they are not bound
to shew what was the object or purpose or intent of the acts that were
undoubtedly done by the prisoner at the bar. His counsel say the
ofifence charged against him must be proved by those who make the
charge ; that he stands only to hear the evidence that is given against
him, and therefore he is not bound to shew at all, or in any wa)-
whatever, what his real object or design was. Undoubtedly the
proof of the case against the prisoner must depend for its support, not
upon the absence or want of any explanation on the part of the
prisoner himself, but upon the positive affirmative evidence of his guilt
that is given by the Crown. It is not, however, an unreasonable thing,
and it daily occurs in investigations, both civil and criminal, that if
there is a certain appearance made out against a party, if he is
involved by the evidence in a state of considerable suspicion, he is
called upon for his own sake, and his own safety, to state and to bring
forward the circumstances, whatever tliey may be, which might recon-
cile such suspicious appearances with perfect innocence. And therefore
the learned counsel of the prisoner, although he entered his protest
against his being necessarily required to make such a statement, pro-
ceeds to say, that tlie case of the prisoner at the bar was one that was
SECT. XIV.] Regina v. Joint Frost mid ot/iers. 375
perfectly innocent, that is, perfectly innocent so far as regards the
crime of high treason. He stated that it was never intended by the
prisoner either to take the town, or to attack the military, which latter
act was purely accidental ; that all that was intended was, to make a
demonstration to the magistracy of Newport and the county, <jf the
strength of tliose persons who were called Chartists, for the single
purpose and design of inducing the magistrates either to procure the
liberation of one Vincent and three other persons, who had been con-
victed of some political offences and were tlien confined in Monmouth
gaol, or, at all events, to procure a mitigation in their mode of treatment
whilst under imprisonment.
Gentlemen, if that outline wliich is made by the officers of the
Crown is filled up by evidence, there is no doubt whatever that the
guilt of the party accused amounts to high treason ; and on the other
iiand, if falling short of tliat offence, it amounts to no more than the
description which has been given of it by the counsel for the prisoner,
although it would be a most grievous offence as a misdemeanor, in-
volving the security of the property, and perhaps of the lives, of many
persons in the town of Newport. Yet it would be deficient in the
main ingredient of the offence of levying war against the Queen within
her realm ; it would want the compassing and designing to put down
the authority and government of the Queen ; it would amount to no
more than a very aggravated misdemeanor ; and upon that supposition
and state of facts the prisoner would be entitled to an acquittal upon
the present indictment....
Verdict, Guilty.
[Adhering to the KiiKfs etiemies.^
REX V. VAUGHAN.
Old Bailey Sessions. 1696, 2 Salkeld 634
Tlie defendant was indicted for treason in adhering to the K ing'3
enemies cum plurimis suhditis Gallicis inimicis Domini Regis ; and that
they did navigate a certain vessel, called 7Vte Clancarty, with a design
to destroy the King's ships.
At the trial, it was held by Holt, C.J., and the other justices that
an indictment for adhering to the King's enemies generally, without
376 Select Cases on Crimmal Lav. [paut ii.
shewing particular acts or instances, is not good. For the "words of
the Statute are, "And thereof be proveably attainted by some overt
deed."...
And if it be not a good indictment without special acts, the
question is whether [when it does set out special acts] only those
that are alleged ought to be proved, and no others.
Per Holt, C.J. A distinct overt act cannot be given in evidence
unless it relate to that which is alleged, or conduce to the proof of it.
But if it conduce to prove an overt act alleged, 'tis good evidence. If
consulting to kill the King be alleged, any acting or doing in
pursuance of that consultation may be proved ; for it proves their
agreement and consent, and is a further manifestation of the act
alleged in the indictment.
It was also objected : — (1) That the seamen must appear in evidence
to be Frenchmen born, for if they were Dutch, they are not subditi
Gallici ; (2) That though he was said to adhere to the King's enemies,
it was not said to be against the King ; (3) That this was not a
sufficient act of adhering, without fighting or some act of hostility.
Per Curiam. (1) If the [Dutch] States be in alliance with us, and
the French at war Avith us, and certain Dutchmen turn rebels to the
States and fight under command of the French King, they are inimici
to us and Gallici subditi. For their French subjection makes them
French subjects, in respect of all other nations but their own. And if
such cruise be at sea, and an l*]nglishman assist them, he is a traitor ;
but not a pirate, for none are pirates that act under the command of
a sovereign prince. (2) Adhering to the King's enemies must of
necessity be against the King. Therefore, if an Englishman assist
the French, being at war with us, and fight against the King of Spain
who is an ally of the King of England, this is treason, as adhering to
the King's enemies against the King ; for the King's enemies are
thereby strengthened and encouraged. So it is within the express
words of 25 Edw. III. "adhering to the King's enemies." And it is
sufficient to allege the treason in the words of the Statute. (3) Cruising
is a sufficient overt act of adhering, comforting, and aiding ; as, if
Englishmen enlist themselves and march, this is sufficient without
cominir to battle; and there maybe a "levying war" without actual
fighting.
SECT. XIV.] Lord Preston's ditfC, '617
^What may amount to an overt act.'\
LOUD PRESTON'S CASE.
Old Bailey. 1691. 12 Howells Statr Trials 046.
[Sir Richard Grahame (Viscount Prestuii, of Scotland) was indicted,
along with others, for compassing the death of WiUiaui and Mary, King
and Queen of England. One overt act laid was the hiring a ship for
the conveyance of treasonable papers to the French Government (then
at war with England). Another was the hii-ing a hoat and boatman in
order to proceed to that ship.]
In answer t-o an objection raised by Lord Preston,
Atkyns, CB. said : — Here are instructions given to the French
King how to invade England, and carry on the war against us. These
instructions are contained in several papers, and these papers in a
packet are carried to the smack, which smack was hired to go to
France. You are found taking water at Surrey-stairs, which is in
the county of Middlesex, in order to go to the smack. You did go to
the smack ; the papers were taken in your company ; and were seen,
lying by your seals ; and the witnesses swear they believe some of them
to be your hand. You took care to desire to have them disposed of.
Now how far the jury wiU believe this matter of fact (that is thus
testified) is left to them. This seems to be the proof; and if the jury
do believe it, here is plain evidence of an overt act in the county of
Middlesex.
[See also Regina v. Davitt, i-nfra, p. 380.]
\^]Vords spoken!]
HUGH PYNE Esq.; uis case.
A Consultation a.d. 1628. Croke Car. 117.
One William Collier, attending the said Mr Pyne at his house in
the country, was demanded of him, whether he had seen the King at
Hinton, or no? whereunto Collier answered, that he had seen the
King there. Mr Pyne thereto replied, " Then hast thou seen as unwise
a King as ever was, and so governed as never King was ; for he is
378 Select Cases on Ciimiual Law. [part ii.
carried as a man would carry a child with an apple : therefore I, and
divers morej did refuse to do our duties unto him.... And Mr Pyne
said aloud, " Before God, he is no more fit to be king than Hickwriglit."
This Hickwright was an old simple fellow, who was then Mr Pyne's
shepherd.
These words being thus proved by William Collier and George
Morley, all the Judges were commanded to assemble themselves; to
consider and resolve what oflence the speaking of those words were.
Whereupon Sir Nicholas Hide, Chief Justice of the King's Bench,
Sir Thomas Richardson, Chief Justice of the Common Bench, Sir John'
Walter, Chief Baron of the Exchequer, Sir William Jones, one of the
Justices of the King's Bench, Sir Henry Yelverton, one of the Justices
of the Common Bench, Sir Thomas Trevor, and George Vernon,
Barons of the Exchequer, none other of the Judges being then in town,
met at Serjeants' Inn in Fleet Street, where tliey debated the case
amongst themselves, in the presence of Sir Robert Heath, the King's
Attorney General : and divers precedents were then produced. E.g.
...Edward Peacham' was indicted of treason, for divers treasonable
passages in a sermon, which was never preached, or intended to be
preached, but only set down in writings, and found in his study : he
was tried and found guilty, but not executed. Note, that many of
the Judijes were of opinion that it was not treason —
Upon consideration of all which precedents, and of the statutes of
treason, it was resolved by all the Judges before named, and so certified
to his Majesty, that the speaking of the words before mentioned,
though they were as wicked as might be, was not treason. For they
resolved, that unless it were by some particular statute, no words will
be treason ; for there is no treason at this day, but by the Statute of
25 Edw. III.; for imagining the death of the King, &c. And the
indictment must be framed upon one of the points in that Statute ;
and the words spoken here can be but evidence to discover the corrupt
heart of him that spake them : but of themselves they are not treason,
neither can any indictment be framed upon them.
To charge the King with a personal vice, as to say of him that he
is the greatest whoremonger or drunkard in the kingdom, is no treason,
as Yelverton said it was held by the Judges, upon debate of Peacham'a
case.
' Editob's Note. For Peacham's case, a.d. 1615, see 2 State Trials 869^
roster 199, aud liallain's Const. Hist. i. 342.
SECT. XIV.] Rex V. Chuntock. 379
\^When words spoken cnnstUute an Overt, Act.l^
REX V. CHARNOCK.
Old Bailey. 1691. 2 S.m.kkm) 033.
The question at the trial was, whether words could be an overt act
of treason in compassing the death of the King. For Hale (Pleas of
the Crown, 13) says, " Words are not an overt act of treason unless set
down in writing."
Holt, O.J. Loose words, spoken without relation to any act or
project, are not treason. But words of persuasion to kill the King are
overt acts of liigh treason. 8o is a consulting how to kill the King.
So, if two men agree together to kill the King. For the bare
imagination and compassing makes the treason ; and any external act
that is a sufficient manifestation of that compassing and imagining, is
an overt act. It was never yet doubted but that to meet and consult
how to kill tlie King, was an overt act of treason.
SECTION XV.
TREASON-FELONY.
[What is Treason-Felony. '\
THE QUEEN v. CHARLES GAVAN DUFFY.
Dublin Commission Court. 1849. 7 Statk Trials (N.S.) 950.
[This was the last of four indictments for treason-felony, against
C. G. Duffy, the publisher of the Nation newspaper (afterwards Sir
Charles Gavan Dufiy', K.C.M.G., Speaker of the Legislative Assembly
of Victoria).]
Ball, J., in summing up, thus explained to the jury the nature of
the crime: — Divested of redundant phraseology, the 11 and 12 Vict,
c. 12 s. 3 [the Treason-Felony Act, 1848] appears, so far as the
prisoner is concerned, to amount to this. If any person sliall enter-
tain the intention of deposing Her Majesty from her sovereignty in
this country, or the intention of levying war against Her Majesty for
the purpose of coercing her to change her measures and counsels, and
shall in either case manifest such intention by any printing or writing,
o80 Select Cases on Criminal Law. [part ii.
he shall be guilty of felony. It is not the act of endeavouring to
depose the Queen, and the act of levying war, that are made felonies by
this Statute. Those acts amount by law to the crime of high treason,
and do not constitute any part of the legislation of this Act. It is
the intention to do such acts, proved to exist in the mind of the
accused, that by this Statute is made a substantive felony. By the
term ' intention ' you are not to understand a mere passing thought,
but, as the word imports, a settled and deliberate purpose. It is
not the intention in the mind which alone constitutes the offence,
and which will render a man amenable to the penalties of this Statute.
He must be proved not only to have entertained the intention, but to
have expressed or manifested it by some printing or writing. Again,
gentlemen, an attempt to depose the Sovereign does not import any
intention to injure the Queen, or even to treat her with any personal
disrespect. Neither is a formal intention to deprive her of her title,
position, and dignity, necessary. The offence has been perpetrated, if
the prisoner has entertained and expressed the intention of consti-
tuting or setting up in this kingdom any body of persons who were
to exercise the functions of the Government, and virtually to supersede
the Queen's authority — still more so, if the prisoner has entertained
and expressed an intention of severing this country from the British
crown, and establishing either a republic or any otlier form of govern-
ment. With regard to the other charge of compassing to levy war,
you are further to understand that when the Statute uses the words
"levying of war," such terms are not confined, in their legal con-
struction, to the exhibition of warlike array. It is not necessary that
the prisoner should have had present in his mind the idea of any
military force or regularly-organized army. If he contemplated an
extensive insurrection, or rising of the people, for the purpose of com-
pelling Her Majesty to change her measures and counsels, the law
holds him guilty of the offence of levying war witliin the meaning of
this Act of Parliament. . . .
\_IIow a Treason-Felony may be prov.yl.'\
REGINA V. DAVITT AND WILSON.
Central Criminal Court. 1870. 11 Cox 676.
[Indictment for feloniously compassing and devising to deprive and
depose the Queen from her style and title of the Imperial Crown of
SECT. XV.] Rcfflna v. Davitt and Wilson. 381
the United Kingdom. Thirty-three overt acts were sot out ; including
a conspiracy to subvert the constitution, and a conspiracy to provide
arms and ammunition for levying war within the reahn. At the con-
clusion of the evidence the Attorney General (Sir R. CoUitir) urged
that the numerous secret consignments of arms — especially to Ireland
— all emanating from the shop of one prisoner, Wilson, and conducted
by the other prisoner, were proofs of the complicity of both of them.]
CocKBURN, C.J. Supposing the prisoner Wilson had had nothing to
do with Fenian designs, but was willing to supply men whom he knew
to be Fenians with arms, although indifferent to the purposes for which
they might be used, is it contended that he would liave "conspired"
in the felony? In such a case he would sell arms with a knowledge of
his customers, but without any intention of his own to aid in their
design. Would he be liable to be charged with complicity in the
felony?
,b'i?' R. Collier, A.G., said he apprehended that if the prisoner knew
the illegal purpose for which the arms were to be used, he would,
without any further complicity on his part than the mere sale, be
o-uilty of felony. An accessory before the fact to a treason has been
held to be a principal. In this case the prisoner had done more than
sell the arms — he had gone to Leeds to co-operate with Davitt in
using them.
CoCKBURN, C.J. It may be so'....
Afterwards, at the close of the case,
CoCKBURN, C.J., in summing up to the jury, said: — The prisoners
are indicted for what in substance is high treason ; but that is not the
crime for which they are indicted, as, under the Statute (11 and 12
Vict. c. 1 2), what would before have been high treason is now created
an offence for which, upon conviction, a lesser punishment than that of
treason is to be inflicted. The substance of the charge against the
prisoners contained in this voluminous indictment may be thus stated:^
a conspiracy to depose the Queen (a charge which would be proved by
shewing an attempt to depose her from her State as sovereign in any
part of her dominions, e.g. Ireland), and with that object to levy war
against her. And tlie overt acts relied upon in support of the con-
spiracy are the procuring and producing arms for the purpose of being
used in the intended insurrection against the royal authority in Ireland.
You will have to consider, first, whether arms were provided in this
country for the purpose of being sent to Ireland with the intention of
being used and employed in rebellion there ; next, whether they were
1 It will be seen that the Lord Chief Justice, after consideration, directed the
jury in accordance with this view of the case.
382 Select Cases on Crlmbial Law. [part ii.
sent by the prisoners, or either of them, with the intention of their
being so used and employed. We have the fact of the letter proved to
be in the handwriting of the prisoner Davitt ; and proved by a witness
for the defence to refer to the Fenian conspiracy, and to traitors to it,
and to the use of weapons against such traitors. We liave the fact of
large and repeated consignments of arms by the defendants to false
addresses and fictitious persons in Ireland and other parts of the
country; these arms coming from the workshop of one prisoner, Wilson,
and secretly consigned to false addresses written in the handwriting of
the other prisoner, Davitt.
The question naturally arises, for what purpose were all these
consignments? And why were they thus made, not openly, but secretly,
and by means of such devices and contrivances ? The fact that strikes
the mind most forcibly is that in all these cases there was concealment
and contrivance ; which must have been for some purpose. It is for
you to exercise your own judgment as to whether it was an innocent
purpose. In these consignments both prisoners take part ; and finally
one of them, Wilson, comes to London, evidently to meet the other;
with his address, under a feigned name, in his pocket, and with fifty
revolvers. And there, at Paddington, the other prisoner (Davitt)
actually is, to meet him. As regards the prisoner Davitt, there is positive
evidence (that of the informer) that he was engaged in the Fenian
conspiracy. Whether the evidence is credible and reliable, and how
far it is confirmed, it is for you to judge. There is the letter, which in
terms appears to point to this conspiracy. As to it, you have heard
explanations; which it is for you to judge of, and, if you are not
satisfied with them, then from the terms of that letter you may infer
the complicity of Davitt. But that is not the whole evidence ; and
even if you are not satisfied as to the evidence of the informer, and are
satisfied with the explanation as to the letter, there will yet remain
other evidence in the case fit for you to consider. There is the internal
evidence, afforded by the nature of the acts themselves that are laid
as overt acts of the alleged conspiracy. When you find men sending
arms to a country in which disaffection and disloyalty exist — doing it
secretly and by clandestine means, and under circumstances calculated
to excite extreme suspicion and distrust — it will not be difficult for you,
in the absence of any explanation of such conduct, to draw your own
inferences as to the purpose and motive of such conduct. iSTo doubt
it is for the Crown to make out their case. But it is often impossible
to give direct evidence of a man's motives or intentions in a particular
matter; and a jury must often look at the act itself, and judge from
the nature of the act as to the character of the motive. And when you
SECT. XV.] Reghm v. Davitt and Wihnn. 383
find these clandestine consignments of anus to Ireland, the country
where this treasonable conspiracy existed, and where it was to bo
attempted to effect its object, it is for you to form your own judf,'nient
as to the purpose of tliese consignments. And if you are satislied
either from the letter or from the other facts proved, thai the purpose
in sending these arms was the furtherance of the Fenian conspiracy,
and that the arms were intended to be used in subverting the Queen's
authority in that country, then— although you may not be satisfied that
the prisoner was at any of the Fenian meetings — you may draw your
own inferences from the facts. Considering, as well as the circumstances
under which the arms were sent, the character of the arms thein.selves
arms in a rough and unfinished state, not fitted for sale though just as
well capable of being used — and bearing in mind the absence of any
attempt at an explanation of these things — it is for you to jud.^e what
is the natural inference to be drawn. And if you believe that the
prisoners sent these arms in order that they might be used in levying
war against the Queen, then the case is established against them.
These remarks on the evidence in the case have applied more
particularly to the prisoner Davitt, who directed the transmission of
the ai-ms. With regard to the other prisoner, Wilson, there can be
no doubt the arms were made by him ; but if he did no more than
make and supply them, and merely shut his eyes to their destination,
that is not sufficient to convict him. But if you believe that in
supplying the arms, he had a knowledge that they were about to be
used for a traitorous purpose, and had the intention that they should
be so used, then he is involved with the other prisoner in a commou
guilt. If he was indeed ignorant of their destination, then it would
be otherwise ; of this you must form your own judgment. And if
knowing the object, though himself not cai-ing about it, he yet, for the
sake of sordid gain, lent himself to that object, he would be guilty.
The great questioii is, Avhether the arms were sent with the traitorous
purpose of exciting insurrection. If you are satisfied that they were
sent for that purpose, then, if both the prisoners knew of it, both are
guilty; or, if not, then such one of tlieui as knew of it. It is necessai-y
that an overt act should have been committed within the jurisdiction
of this court, and if you are satisfied that the arms were brought
by the prisoner Wilson to the Paddingtun station in pursuance of the
ti-aitorous object, then there would be such an act within the juris-
diction. Nothing has been proved to account for the arms being so
brought. If you are satisfied that they were brought to be used for
the traitorous purpose, and that one prisoner was bringing them in
concert with the other for that purpose, then they woulil both be guilty
384 Select Cases on Criminal Law. [part ii.
upon this indictment. For there would be an overt act by both of them
in furtherance of a common traitorous design. Consider, then, whether
the prisoners, or either of them, sent these arms, and sent them
secretly and clandestinely, for the purpose of aiding the treasonable
conspiracy.
Verdict, Guilty. Davitt was sentenced to fifteen years' penal
servitude, and Wilson to seven.
SECTION XVI.
RIOT AND UNLAWFUL ASSEMBLY.
[The difference between statute law and covimon law as to Eiots.]
EEX V. rURSEY.
Old Bailey. 1833. 6 Carrington and Payne 81.
[Indictment for stabbing and wounding John Brooke. Various
intents were specified in various counts ; amongst them an intent to
do grievous bodily harm, and an intent to resist arrest for rioting.]
The prosecutor, Brooke, was a sergeant of the Metropolitan police
force: and, on the 13th of May, 1833, was with a very considerable
number of the police at a vacant space of ground adjacent to the west
side of the Cold Bath Fields Prison. It appeared that there was a
meeting there, consisting of a number of persons, and that there were
four flags. The prisoner carried an American flag ; which a police
constable, named Redwood, tried to take from him, when he stabbed
both the prosecutor and Redwood with a sort of dagger with a tri-
angular blade, similar to that of a court sword. . . .
For the defence, it was stated by Mr Stallwood, who had been
a magistrate for the county of Middlesex, that a considerable number
of the police constables behaved with considerable violence, striking
everybody they met with. He also stated, that there was no order
given to the people to disperse, nor was the proclamation from the
Riot Act read. In answer to questions put by Campbell, S.G.,
]\lr Stallwood stated that he saw a paper fixed up to the wall of
Cold Bath Fields, cautioning persons "By order of the Secretary of
State " not to attend an illegal meeting.
SECT. XVI.] Rex V. Fursey. '6bo
Campbell, S.G., was proceeding to examine into tlie contents of
this caution.
C. Phillips. As this was a printed paper the manuscript from
which it was printed ought to be produced.
Campbell, S.G. We cannot bring the wall of Cold Bath Fields
here ; and there is no proof that there ever was any manuscript
Park, J. The usual way in such cases is to give a copy to the
witness, and ask if it is a copy of what he saw. I do not say that
parol evidence is inadmissible ; the paper was affixed to a wall.
...It was also proved on the cross-examination of another of the
witnesses for the defence, Mr Carpenter, that he knew of the intended
meeting before he went to the ground, as he had seen it stat(xl to be
the intention of the meeting to establish a National Convention ; that
he had seen it stated in various publications, advertisements, and
bills; and he further stated that it was notorious.
Gaselee, J. (in summing up). The question for you to consider
will be, whether there was sufficient provocation to reduce the oflence
of the prisoner below the crime of murder, if death had ensued. And
although it is not mentioned in the indictment, you are at liberty to
inquire whether the meeting was an illegal meeting or not ; for if it
was, the police would be Justified in taking away the flag ; V)ut if the
meeting was not an illegal one, then they would have no right to take
the flag away from the prisoner. Taking it that the meeting was
a legal one, this question will arise, whether the taking away of the
flag was a sufficient provocation to justify the prisoner in striking with
such a deadly weapon ; and it makes a great difference whether a man
under provocation takes up a deadly weapon on the sudden, or whether
he goes out with the weapon, intending to use it to prevent the taking
away of the flag. It will be for you to say whether the conduct of
the prisoner shewed that malignity of purpose which would, if death
had ensued, have constituted the crime of murder. If you are of
opinion, that he took this deadly weapon with an intention to resist,
under all circumstances, the taking away of the flag, I feel justified
in telling you, and I believe that my learned brother will agree with
me, that, if death had ensued, the crime of the prisoner would not
have been less than the crime of murder. However, you ought also to
consider whether there was sufficient provocation before the blow was
given, to reduce the offence, had death ensued, to the crime of
manslaughter
On the part of the prisoner a great deal of evidence has been given
to shew that the conduct of the policemen was very violent and
very outrageous. You will have, therefore, to consider whether their
K. 25
386 Select Cases on Criminal Law. [part ii.
conduct was a sufficient provocation to the prisoner to resist as he did,
or whether, from the fact of his having taken the weapon out with
him, there was that malignity of purpose which Avould have made the
otience of the prisoner amount to murder, if death had ensued.
It appears, from the evidence of Mr Stallwood, that the proclama-
tion contained in the Riot Act was not read. Now, a riot is not the
less a riot, nor an illegal meeting the less an illegal meeting, because
the proclamation of the Riot Act has not been read. The effect of
that proclamation is to make the parties guilty of a capital offence if
they do not disperse within an hour. But, if that proclamation be not
ri-ad, the common law offence remains, and it is a misdemeanor; and
all magistrates, constables, and even private individuals, are justified
in dispersing the offenders ; and, if they cannot otherwise succeed in
doing so, they may use force \ I do not lay down this as the law for
the first time; the law has been so laid down by the judges on the
special commissions'. There has also been given in evidence a pro-
clamation issued by order of one of the Secretaries of State ; and in
that proclamation it is stated that printed papers have been posted up,
advertising that a jmblic meeting would be held to adopt preparatory
measures for holding a National Convention. Now, that proclamation
is not evidence that the meeting was to be held for the purposes there
mentioned. It is, in effect, only a notice given by the Secretary of
State, and is evidence in this case in no other way. But if placards
convening the meeting were posted up, stating that the meeting was
for those purposes, then it is an illegal meeting. If it was intended
hy force to make any alterations in the laws of the country, that would
be a much more serious offence ; as it would be high treason. The
proclamation states it to be an illegal meeting, and commands all con-
stables and others to disperse it. If such a notice be given, and a party
chooses to treat it as of no etlect, he does it at his own risk.
But without any proclamation at all, if a meeting is illegal, a party
who attends it, knowing it to be so, is guilty of an offence. Tliere may
be a difficulty in saying in what way this meeting was illegal, but it
was either illegal as a misdemeanor or a higher ofifence ; and whichever
it was, it justifies the dispersion of the meeting. One of the witnesses
has stated that the purpose of the meeting was to adopt preparatory
measures for holding a National Convention ; and that that was gene-
rally known. If you think that the meeting was held for the purpose
of adopting preparatory measures for the holding of a National Con-
vention, then the police had a right to interfere and arrest the parties.
^ [Editor's Note. I.e. blows, but not shots, in the first instance.]
« I.e. at Bristol aud Nottingham, 1832, (3 St. Tr., N. S., 1.)
SECT. XVI.] Bex V. Fnrscy. :?S7
The first question will be, whether the prisoner was the person who
gave the wound to the prosecutor Brooke? The question will then
be, whether there was such provocation as would have reduced the
offence to the crime of manslaughter, if death had ensued? If you are
of opinion that the prisoner, having taken the flag in his hand, had
prepared the weapon with a view of protecting it under all circum-
stances, then I own it appears to me, that there are not those
circumstances which will so reduce the crime as that, if this person
Brooke had died, it would not have amounted to murder. If you
think that the prisoner, previous to his going out, prepared a deadly
weapon to resist any attempt to defeat the object of the meeting, or to
prevent himself from being deprived of the flag which he carried, I am
bound to tell you that I think the offence has been proved.... If the
meeting was legal, then the arrest was improper. Then the question
would become, whether the resistance to the arrest was proportioned to
the attempt made to arrest. It is not merely because a man attempts
to arrest you wrongfully, that you are to kill him,... The question
would be whether the instrument was prepared in order to resist at all
hazards any attempt to oppose them
Verdict, Not guilty.
\The difference, at common law, between a Riot and an Unlawful
Assembly.]
REX V. BIRT.
Gloucester Assizes. 1831. 5 Carrington and Paynk 154.
Indictment for a riot, with a second count for an unlawful assembly.
Each count concluded ' in terrorem populi.'
It appeared that the prisoners, and a large number of pei-sons,
assembled to cut down the fences of the inclosures of the forest of
Dean ; and that the surveyor-general of the forest, and his woodmen,
did not think themselves strong enough to resist them , and that
inclosure fences to the extent of a mile and more were destroyed.
Mr Justice Patteson. The difference between a riot and an un-
lawful assembly is this : If the parties assemble in a tumultuous
manner, and actually execute their purpose with violence, it is a riot ;
but if they merely meet upon a purpose, which, if executed, woultl
25—2
388 Select Cases on Criminal Law. [part ii.
make them rioters, and, having done nothing, they separate without
carrying their purpose into etiect, it is an unlawful assembly ^
\What renders an Assembly Unlawful.]
THE KING V. HENRY HUNT.
York Assizes. 1820. 1 State Trials (N. S.) 171.
[Henry Hunt and nine other persons were indicted for riot, un-
lawful assembly, and a conspiracy to assemble unlawfully. The
assembling took place on Aug. 16, 1819, in St Peter's Fields, at
Manchester ; when about 60,000 persons attended, many of whom
arrived marching in military order. The meeting was dispersed by
the yeomanry cavalry, at the command of the magistrates. As between
three and four hundred persons were wounded in consequence, tlie
affair came to be called the "Peterloo Massacre." (See Molesworth's
Hist. Eny. I. 16.)]
Bayley, J., in summing up, said: — ...In all cases of unlawful
assembly, you must look to the purpose for which they meet; you
must look to the manner in which they come ; you must look to the
means which they are using^. All these ai'e circumstances which you
must take into your consideration. I have no difficulty in stating to
1 In Reg. v. Williams (6 St. Tr., N. S., 779) Parke, IJ , said:— "If this was an
* unlawful assembly ' then a resistance to constables, accompanied with personal
violence against them, was an act of ' riot ' on the jmrt of those persons who were
guilty of it."
- For illustrations of 'manner' and 'means,' reference maybe made to what
•was shortly afterwards said by the same learned judge in Rex v. Dewhurst
{1 St. Tr., N. S., 598, GOl) : — " Terror may be inspired by the arms, or the staves
and sticks;. ..or by the nature of the speeches....A man has a clear right to arms
to protect himself in his house. A man has a clear right to protect liimself when
he is going singly or in a small party upon the road where he is travelling or going
for the ordinary purposes of business. But you have no right to carry arms to a
public meeting, if the number of arms which are so carried is calculated to produce
terror and alarm. If you could be at liberty to carry arms upon an expectation
that by possibility tlnre might be an attack at the place, that would be an excuse
for carrying arms in every instance when you went to a public meeting. Therefore
I have no difiQculty in saying that persons are not warranted in carrying arms to
a public meeting if they are calculated to create terror and alarm."
And again to what was said by Parke, B., in Reg. v. Williams (6 St. Tr., N.S.,
779): — " The assembling at that hour of the night — seven o'clock and continuing
until twelve o'clock — the very large number of persons — varying from 3,000
SECT. XVI.] Thi' King v. ILnnj Hunt. 3cS!)
you that it is not because a meeting consists of sixty thousand m(;n,
women, and children, a mixed multitude, that it is therefore necessarily
an unlawful assembly. That number may meet under such circum-
stances as by no means to raise public terror, or to raise fears and
jealousies in the minds of the persons in the neighViourhood where they
meet. But if in an assembly so constituted, met for perfectly legal
purposes, any men introduced themselves illegally to give to that
meeting an undue direction which would produce terror to His
Majesty's subjects, although tifty-nine thousand out of that meeting
would be perfectly innocent, there might be twelve or twenty illegally
assembled ; and those twelve or twenty would be liable to be tried
upon the ground of illegally assembling there, although the assembly
be perfectly legal as to the bulk of the people who are there. If any
persons by plan amongst themselves contrive that there shall be such
observations made to them by harangues, by placards, or by other
means, as are likely to give to that large body of persons that direction
which will be likely to endanger the public peace and strike terror into
the minds of His Majesty's subjects, those persons will be liable to
conviction of the offence of illegal conspiracy. . . .
In conspiracy it is by no means necessary to prove actual meeting
together. If the circumstances are such as imperiously call upon you
to say that they could not have occurred but in pursuance of previous
conspiracy and plan between the parties, then that implies that there
must have been such previous plans, and, therefore, will entirely
warrant the conclusion of conspiracy. For instance, in this case, if
you should be of opinion that these persons could not have come
together in that conformity of circumstances without a plan pre-
viously agreed upon between the parties — that would be evidence of
previous plan
In considering the question of unlawful assembly, you are, of
course, to take into consideration all the accompanying circumstances.
Those circumstances in this case are the banners ; appearance as if the
parties had been drilled ; thirdly, actual evidence of drilling, perhaps.
Now if the case is to be made illegal in respect of the banners, it is
not necessarily illegal on that account as to every man present at the
meeting, but would only be illegal as to that particular man or as to
those particular persons who had adopted that banner, or who, with
a full knowledge of the existence of that banner, had given their
at the commencement to 50,000 at the end — the circumstances under which the
meeting took place, and the mode in which they marched — in the night-time,
alarming the tradesmen and compelling them to shut their shops — beyond all
doubt bring it within the description of an ' unlawful assembly '."
390 Select Cases on Criminal Law. [fart ii.
co-operation and countenance to the meeting So in the case of drill-
ing. If the meeting is to be considered as illegal because the men
were drilled (drilled, I mean, for an illegal purpose), then it would only
be illegal as to those individuals who knew of the illegal drilling. For
instance, if, knowing that a body of men, who will be there, have
been previously drilled in order to overawe, intimidate, and menace,
I yet go to that meeting, and give my countenance to that meeting,
I am guilty of giving my attendance at that meeting illegally. At the
same time, if you go with me, countenancing the general objects of the
meeting, but being ignorant of the drilling, you would not be atiected
by that fact —
In considering whether it was generally criminal as to the body of
those who met, when it was legal as to the purpose but illegal as to
the manner, did it or did it not produce terror 1 Was it or was it not
calculated to produce terror ? As it seems to me, that terror ought to
be a terror to arise before the mob shall disperse.
Is there any evidence of general panic 1 There is no interruption
of business ; the circumstance of their meeting without any arms, the
circumstance of their taking with them women and children, the
circumstance of their demeanour from first to last — peaceable with
scarcely any exception — these are circumstances to enable you to form
a judgment whether either it did produce terror, or was in its nature
calculated to produce the supposition that mischief would result before
the meeting should separate '. . . .
[Editor's Note. The summing up given in this case by Mr Justice Batley was
approved by the Court of King's Bench on a motion being made for a new trial.
(See 3 Barnewall and Alderson 566.)]
1 On the other hand, an absence of women and children was thus commented
upon by the same judge a few days later in Rex v. Deiohurst (1 St. Tr., N. S.,
600) : — " If I see an immense number of persons, all men ; and I see that women
and children are cautiously excluded ; that may produce terror. Because I may
say, Why should it be confined to men alone?"
SECT. XVI.] Regina v. Vincent and others^. 3'Jl
\_Wlint renders an Assembly unlawful.]
REGINA V. VINCENT AND OTHERS.
Monmouth Assizes. 1839. 9 Carrington anu Pav.m-; 01 ;
;i St. Tu. (N.S.) 1037.
[Indictment for conspiracy, and for unlawful assembly. The de
fendants had addressed meetings in the streets and open spaces of
Newport (Men.), at which they had denounced the government of the
country, and had demanded the granting of the People's Cliarter ;
threatening that, if necessary, they would have it without the consent
of the Government ; and encouraging the people to use violence to
those who might be sent to interfere with them. The meetings at-
tracted a crowd of about 1000 persons; who were in an excited state,
loudly cheering the speeches, and groaning when any of the magis-
trates passed by.]
Alderson, B., in summing up, said : I take it to be the law of the land
that any meeting assembled under such circumstances 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. You will have to say whether, looking at all the circum-
stances, these defendants attended an unlawful assembly. For this
purpose you will take into your consideration the way in which the
meetings were held, the hour of the day at which the parties met, and
the language used by the persons assembled and by those who ad-
dressed them. Every one has a right to act in such cases as he may
judge right, provided it be not injurious to another; but no man or
number of men has a right to cause alarm to the body of persons who
are called the public. You will consider how far these meetings
partook of that character ; and whether firm and rational men, having
their families and property there, would have reasonable ground to fear
a breach of the peace. For I quite agree with the learned counsel for
the defendant, that 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. The indictment also con-
tains charges of conspiracy ; which is a crime which consists either in
a combination and agreement by persons to do some illegal act, or
a combination and agreement to efi'ect a legal purpose by illegal means.
The purpose which the defendants had in view as stated by the
prosecutors was to excite disaffection and discontent ; but the defend-
ants say that their purpose was by reasonable argument and proper
petitions to obtain the five points mentioned by their learned counsel.
39 2 Select Cases on Criminal Law. [part ii.
If that were so, I think it is by no means illegal to petition on those
points. The duration of parliaments and the extent of the elective
franchise have undergone more than one change by the authority of
Parliament itself; and with respect to the voting by ballot, persons
whose opinions are entitled to the highest respect are found to differ.
There can also be no illegality in petitioning that members of Parlia-
ment should be paid for their services by their constituents ; indeed,
they were so paid in ancient times. They were not required to liave
a property qualification till the reign of Queen Anne ; and are now not
required to have it in order to represent any part of Scotland or the
English universities.
If, however, the defendants say that they will effect these changes
by physical force, that is an offence against the law of the country.
No civilized society can exist if changes are to be effected in the law
by physical force.
You will say whether you are satisfied that the defendants con-
spired to excite disaffection ; if you are so, you will find the defendants
guilty of the conspiracy. You will also say whether you think that
the nature of the meetings was such as would excite alarm in the
minds of rational and constant men ; for, if so, I am of opinion that
they were illegal meetings, and then you ought to find the defendants
guilty on the counts for attending unlawful assemblies.
The jury found all the defendants Not guilty of conspiracy, but
Guilty of attending unlawful assemblies.
BEATTY AND OTHERS v. GILLBANKS.
Queen's Bench Division. 1882. L.R. 9 Q.B.D. 308.
[This was an appeal from an order made by the justices at a Petty
Sessions held at Weston-super-Mare, whereby the appellants were
severally bound over to keep the peace, upon an information for having
on March the 26th unlawfully and tumultuously assembled with divers
otlier persons in the public thoroughfares, to the disturbance of the
public peace. The appellants were leading members of the Salvation
Army ; who were in the habit of parading the streets of Weston-super-
j\Iare with flags and banners and a band, and thereby creating much
noise and collecting a mob of persons. Another organised body of
persons, antagonistic to the Salvation Army, called the "Skeleton
SECT. XVI.] Beatty and others v. G'dUmnkH. 393
Army," similarly paraded the streets and disputed the passing of the
Salvation Army. The two bodies frequently came into collision ; and
on March 23rd, the Salvation Army as they paraded the streets were
accompanied by a mob of over 2000 persons, and in the midst of the
mob there was lighting, stone-throwing and noise. The police ultimately
dispersed the crowd. These matters caused great terror in the minds
of the inhabitants of the town. A public notice was then issued by
two Justices of the Peace, stating that there were reasonable grounds
for apprehending a rejietition of these tumults and directing all persona
to abstain from assembling to the disturbance of the public peace in
the public streets. The apjjellauts disregarded the notice, and as-
sembled and marched as usual on the following Sunday morning
(March 26th), with a crowd accompanying them. The Serjeant of the
police met them and required Beatty to desist from leading the pro-
cession. On his refusing to comply, he was arrested. The other
appellants then took command of the procession, whereupon they also
were arrested. The question for the opinion of the Court was, whether
the facts constituted an unlawful assembly.]
A. R. Poole, for the respondent. Any meeting assembled under
such circumstances as, according to rational and firm men, are likely to
produce danger to the tranquillity and peace of the neighbourhood, is
an unlawful assembly. The justices were entitled to look to what had
taken place on previous occasions. The object of the apj.ellants was to
collect a mob of persons, although they must have known that if they
did so a disturbance would arise ; and under these circumstances,
whatever their ultimate object, the assembly was unlawful
Field, J. The appellants have, with others, formed themselves
into an association for religious exercises among themselves, and for
a religious revival, if 1 may use that word, which they desire to further
among certain classes of the community. No one imputes to this
association any other object; and so far from wishing to carry that out
with violence, their opinions seem to be opposed to such a course, and,
at all events, in the present case, they made no opposition to the
authorities. That being their lawful object, they assembled as they
had done before and marched through the streets of Weston-super-
Mare. No one can say that such an assembly is in itself an unlawful
one. The appellants complain that in consequence of this assembly
they have been found guilty of a crime of which there is no reasonable
evidence that they have been guilty. The charge against them is, that
they unlawfully and tumultuously assembled, with others, to the dis-
turbance of the public peace and against the peace of the Queen.
Before they can be convicted it must be shewn that this otlence has
894 Select Cases on Criminal Law, [part ii.
been committed. There is no doubt that tliey, and with them others,
assembled together in great numbers ; but such an assembly to be
unlawful must be tumultuous and against the peace. As far as theso
appellants are concerned, there was nothing in their conduct when they
were assembled together which was either tumultuous or against the
peace. But it is said that the conduct pursued by them on this
occasion was such as, on several previous occasions, had produced riots
and disturbance of the peace and terror to the inhabitants ; and that
the appellants, knowing when they assembled together that such con-
sequences would again arise, are liable to this charge.
Now I entirely concede that every one must be taken to intend the
natural consequences of his own acts, and it is clear to me that if this
disturbance of the peace was the natural consequence of acts of the
appellants they would be liable, and the justices would have been right
in binding them over. But the evidence set forth in the case does nob
support this contention; on the contrary, it shews that the disturbances
were caused by other people antagonistic to the appellants, and that no
acts of violence were committed by them. . . .
What has happened here is that an unlawful organization has
assumed to itself the right to prevent the appellants and others from
lawfully assembling together ; and the finding of the justices amounts
to this, that a man may be convicted for doing a lawful act, if he knows
that his doing it may cause another to do an unlawful act. There
is no authority for such a proposition. The question of the justices
whether the facts stated in the case constituted the offence charged in
the information must therefore be answered in the negative.
Judgment for the appellants.
[Editor's Note. With this case the stn^^ent may contraFt the later one of
Wise V. Dunning (L. R., 1902, 1 K. B. 167), which, however, should be read in the
light of Piof. Dicer's comments. See his Law of llie Constitulion, 7th cd., p. 272.]
[Magistrate's power of suppressing unlawful assemblies.^
REGINA V. NEALE.
Warwick Assizes. 1839. 9 Carrington and Payne 431.
[The defendants were indicted for a riot at Birmingham, which took
place on July 4th, 1839. It appeared that previously to July 4th
meetings had taken place at Birmingham which caused such alarm that
SECT. XVI.] Regina v. Neale. 395
some of the shops were closed ; as the police forct; at iiirmiiiglwun
amounted to only 28 persons, and some of these were decrepit old
men.
On July 4th a large and tumultuous meeting was held in the
Bull-ring. Dr Booth, a magistrate, having obtained the attendance
of 60 London policemen, proceeded to tlie Bull-ring and desired the
mob to disperse. On a refusal, he directed the police to disperse the
assembly and apprehend the leaders. A conflict took place, in wliich
several of the police were wounded ; and it was found necessary to read
the Riot Act and send for the military.]
Miller, for the defence It is not because large nunibfi-s are
assembled that a meeting is illegal... .Not a single inhabitant has
been called to state that this meeting was conducting itself in a
manner calculated to produce the slightest alarm ; and what right has
any magistrate to tell people in a public area in a town to di><perse?
And unless he has a right to do so, if he let loose a body of constables
upon them, and the people resist in consequence of being assailed, they
are justified by law ; and the rioters are the men who are set upon
them, and not those who are assailed. If the police or the magis-
trates had no authority to assail the people, and a riot ensued after-
wards, the people were justified in repelling the assault, and wei'e not
guilty of any ottence.
LiTTLEDALE, J., in summing uji, said : — ...There was an assembly of
persons ; but up to the time that Dr Booth went in among them, I do
not find that any riot had taken place on that day. It is, however,
another question whether there had been an unlawful assembly ; be-
cause if there was a meeting attended with circumstances calculated
to excite alarm, that is an unlawful assembly. And whether there
be an unlawful assembly, may also depend on the resistance made
to the attempts to disperse it and prevent the persons remaining
together. And it is not only in the power of magistrates, it is not
only lawful for magistrates, to disperse any such meeting, but if they
do not, 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. The first question in the present case is, whether this
meeting, constituted as it was before Dr Booth and the police made
their appearance, was an unlawful assembly; if it was, then tho
magistrates had a right to disperse it. The modes of dispersing an
unlawful assembly may be very different, according to the circum-
stances attending it. It might be an unlawful assembly in a very
slight degree, parties might have got just within the pale of what is
unlawful, and the appearance of one magistrate and two or three
396 Select Cases on Cnmincd Law. [part ii.
constables might disperse them. If this assembly were of that de-
scription, there was no pretence for a magistrate's going with a great
police force to disperse the persons assembled. But all these cases
admit of a variety of shades ; because an assembly may be such that
though, up to the time the magistrate goes to it, there may be no
breach of the peace, yet it may be so far verging towards a riot, that
it may be the bounden duty of the magistrates to take immediate
steps to disperse the assembly. If it was a slight matter, a magistrate
going with two or three constables would oblige the people to go away
at once. But if he were to go to a large and tumultuous meeting with
only two or three constables, it would be absurd, and he would only be
laughed at; and there may be cases where a magistrate would be
bound to use force to disperse the assembly. All these different cases
must depend on their own circumstances ; and you would have to say
in each whether, under the particular circumstances, the magistrates
were justified in resorting to the means they did. If the meeting
about which we are now inquiring was an unlawful assembly, it was
the duty of the magistrate to disperse it ; and you will then have to
consider whether the magistrates used more violent means than were
necessary to disperse the assembly. They are to use all lawful means,
and you must say whether or not they did more.
The jury found all the defendants guilty^
\Magistrate^ s duty of suppressing them.^
KEX V. KENNETT.
King's Bench. 1781. 5 Carrington and Payne 283.
[This was an information filed by the Attorney General against Mr
Brackley Kennett for having, when Lord Mayor of London, wilfully
omitted to suppress a riot. The riot in question was Lord George
Gordon's "No Popery" riot of 1780; which lasted five days, and
^ " A person who is accidentally present as an idle spectator is not necessarily
indictable for the offence of unlawful assembly...; but he cannot complain of any
act of force which is necessarily and properly used by the constables for the purpose
of dispersing that assembly. For by his own voluntarj' act he put himself into a
position of being mistaken for men who are guilty of a breach of law; and he
must take the consequences." (Per Pabke, B., in Reg. v. Williams, 6 St. Tr.,
N. S., 780.)
SECT. XVI.] Rex V. Keuuett. 397
involved the destruction of .£180,000 worth of property. Uickeus
describes it vividly in Barnahy Rudge. In tlie ultimate suppression,
210 rioters were killed.]
Lord Mansfield, G.J., in suuuuing up to the jury, said : — The
common law and several statutes have invested Justices of the Peace
with great powers to quell riots, because, if not suppressed, they tend
to endanger the constitution of the country. And, as they may assemble
all the King's subjects, it is clear they may call in the soldiers, who
are subjects, and may act :is such ; but this should be done with great
caution. It is well understood that magistrates may call in the
military. It would be a strange doctrine, if, in an insurrection rising
to rebellion, every subject had not a power to act, when he possesses
the power in a case of a mere breach of the peace. By the Act of the
1st George tlie First, a particular direction is given to every Justice for
his conduct ; he is required to read the Act, and tlie consequences are
explained. It is a step in terrorem, and of gentleness ; and is not
made a necessary step, as he may instantly repel force by force. If the
insurgents are not doing any act, the reading of the proclamation
operates as notice. There never was a riot without by-standers, who go
off on reading the Act
...This information does not charge any intent ol" favouring or con-
niving at the riots, but only a neglect of dut}- ; and every neglect of
duty depends upon circumstances. In this case the chaige is proved.
In law, to say, "I was afraid," is not an excuse for a magistrate ; it
must be a fear arising from danger, which is reduced to a maxim in
law to be such danger as would affect a firm man. In this case the
neglect, at first view, is proved. The witnesses have sworn that the
defendant used none of the authorities vested in him by law ; he did
not read the proclamation, or restrain or apprehend the rioters, or give
orders to fire, or make any use of the military under his direction. But
this does not exclude a defence. The defence here relied on is —
'"Tis true, I did not restrain or apprehend any rioters, nor use the
military ; but, under all the circumstances, this was not a neglect."
It is prima facie the duty of a magistrate to read the Act ; but this
duty depends on circumstances ; he might be alone, and not able to do
it. If he did what a firm and constant man would have done, he must
be acquitted. If, rather than apprehend the rioters, his sole care was
for himself, this is neglect. The sole question is, under all the circum-
stances of the case — Has the defendant laid before you the justification
of a man of ordinary firmness ?
Verdict, Guilty.
S9b Select Cases on Criminal Law. [part ii,
SECTION XVII.
CONSPIRACY.
[^fere agreement constitutes the offence.']
THE KING V. GILL AND HENRY.
KiNT/s Bench. 1818. 2 Barnewall and Alderson 205.
Tlie defendants were found guilty upon an indictment which
charged that they unlawfully did conspire and combine together, by
divers false pretences and subtle means and devices, to obtain and
acquire to theu)selves, of and from P. D. and G. D., divers large sums
of money of the respective moneys of the said P. D. and G. D., and to
cheat and defraud them respectively thereof, to the great damage, &c.
And, being now brought up for judgment,
Gurney moved in arrest of judgment, on the ground that the indict-
ment was framed too generally; that the words, "by divers false
pretences and subtle means and devices," gave no information to the
defendants of the specific charge against which they were to defend
themselves ; that the overt acts of conspiracy should be stated, or at
least so much of them as to shew the corpus delicti or transaction to
which the charge was meant to be applied; and that in no instance
hitherto had so general a count been supported.
Abbott, C.J. The indictment appears to me sufficient. The gist
of the offence is the conspiracy; and although the nature of every
offence must be laid with reasonable certainty, so as to apprise the
defendant of the charge, yet I think that it is sufficiently done by
the present indictment. It is objected that the particular means and
devices are not stated. It is, however, possible to conceive that persons
might meet together, and might determine and resolve that they would,
by some trick and device, cheat and defraud another, without having
at that time fixed and settled what the particular means and devices
should be. Such a meeting and resolution would nevertheless con-
stitute an offence.
HoLROYD, J. I am of the same opinion. The present case differs
materially from the case of obtaining money under false pretences.
There the false pretences constitute the offence ; but liere the con-
spiracy is the offence, and it is quite sufficient to state only the act of
SECT. XVI.] The Kiu(j v. Gill and Ilenrt/. 'M[)
conspiring and the object of the conspiracy in the iridictinent Hero
it is stated that the parties did conspire, and that the object was to
obtain, by false pretences, money from a particular person. Now, a
conspiracy to do that would be indictable, even where the parties had
not settled the means to be employed. I therefore think that there is
no ground for arresting the judgment.
Rule refused.
[See also Rex v. Starling, infra, p. 403.]
[This agreement may he to commit a substantive crime.]
[See Regina v. Davitt and Wilson, supra, p. 380.]
[Or this mere agreement to do an act may he criminal, although the
act itself be not criminal or even actionable.]
THE KING V. DE BERENGER AND OTHERS.
King's Bench. 1814. 3 Maule and Selwvn 67.
[De Berenger and seven others, amongst them Lord Cochrane, the
celebrated naval commander, were tried before Lord El lenbo rough, C.J.
upon an indictment for a conspiracy. The jury found them guilty
upon counts alleging that, during the war then existing with France,
they had conspired to make and propagate divers false reports and
rumours that Napoleon Bonaparte was killed, and that thus a peace
would soon be made between the king and his subjects and the people
of France, and that the defendants would by such false reports and
rumours, as far as in them lay, occasion an increase and rise in the
prices of the public government funds and other government securities,
with a wicked intention thereby to injure and aggrieve all the subjects
of the king who should, on the 21st of February, purchase or buy any
400 Select Cases on Criminal Law. [part ii.
part or parts, share or shares of and in the said public government
funds, and other government securities.]
Best, Serjt, moved in arrest of judgment. ...No adjudged case of
conspiracy has gone so far as this ; the crime alleged is a conspiracy
to raise the price of the government funds of this country; but if it be
not a crime in itself to raise the price of the government funds of this
country, a conspiracy to do so will not carry it farther, unless some
collateral object be stated to give it a criminal character. Generally
speaking, the higlier the price of the public funds, the better for the
country ; because the higher the state of public credit.
Lord Ellenborough, CJ. I am perfectly clear that there is not
any ground for the motion in arrest of judgment. A public mischief is
stated as the object of this conspiracy; the conspiracy is by false
rumours to raise the price of the public funds and securities. The
crime lies in the act of conspiracy and combination to effect that
purpose ; and would have been complete although it had not been
pursued to its consequences, or the parties had not been able to
carry it into effect. The purpose itself is mischievous ; it strikes at
the price of a vendible commodity in the market, and if it gives it
a fictitious price by means of false rumours, it is a fraud levelled
against all the public ; for it is against all such as may possibly have
anything to do with the funds on that particidar day. It seems to me
also not to be necessary to specify the persons, who became purchasers
of stock, as the persons to be affected by the conspiracy; for the defend-
ants could not, except by a spirit of prophecy, divine who would be the
purchasers on a subsequent day. The excuse is, that it was impossible
they should have known ; and if it were possible, the multitude would
be an excuse in point of law. But the statement is wholly unnecessary,
the conspiracy being complete independently of any persons being
purchasers.
Le Blaxc, J. ...It may be admitted therefore that the raising or
lowering the price of the public funds is not per se a crime. A man
may have occasion to sell out a large sum, which may have the effect of
depressing the price of stocks, or may buy in a large sum, and thereby
raise the price on a particular day, and yet he will be guilty of no
offence. But if a number of persons conspire by false rumours to raise
the funds on a particular day, that is an offence ; and the oflence is,
not in raising the funds simply, but in conspiring by false rumours to
raise them on that particular day.
Dampier, J. I own I cannot raise a doubt but that this is a
complete crime of conspiracy according to any definition of it. The
SECT. XVII.] The King v. De Bereiiger arid others. 401
means used are wrong, they were false ruiuours; the object is wron", it
was to give a false value to a commodity in the public market, which
was injurious to those who had to purchase. That disposes of the first
objection. The second objection is, that the persons injured ought
to have been named. To which one answer is, that the criminality is
complete when the concert to bring about a mischievous object by
illegal means is complete ; it is not necessary that the object should be
attained. Therefore there was no need to set out the name of any
person, because no person need be injured. That is the first answer ;
and the next is, that it was impossible the defendants could know who
those persons would be.
[Editok's Note. See the very similar case of Scott v. Brown (L.R. [1892]
2 Q. B. 724), where the conspiracy was to raise the price of the shares in the Steam
Loop Company Limited by making sham sales and purchases of them at a high
price.]
[Agreement merely to break a contract, if under circumstances
injurious to the public J\
VERTUE V. LORD CLIVR
King's Bench. 1779. 4 Burrows 2473.
[This was an action brought by an ofiicer in the military service of
the East India Company against the defendant, who was commander-
in-chief of the Company's forces in India, for an assault and false
imprisonment committed in India. The transaction arose in the
East Indies upon a dispute about a perquisite called Batta ; which had
been received by former military officers there, but which Lord Clive
thought proper to lessen considerably. The officers were exceedingly
dissatisfied with this reduction of their pay or perquisite ; and resented
it so highly that 175 of them threw up their commissions and quitted
the service. Of these, Lieutenant Vertue was one. His colonel
refused to accept his resignation, and commanded him to stay iu the
camp. He disobeyed ; and quitted the camp in the sight of the officers
and men. He was arrested and tried by a court-martial ; whose
sentence was approved by Lord Clive.
K. 26
402 Select Cases on Criminal Law. [part ii.
At the trial, the question was whether the plaintiff was still subject
to military law at the time of holding the court-martial. The jury
found for the defendant. A motion was made for a new trial.]
Dunning, for plaintiff. Lieut. A'^ertue was not in a military
character, or in a capacity to commit a military offence, at the time
when this military jurisdiction was exercised upon him by the de-
fendant. The commission which Mr Vertue had received contained no
engagement or obligation upon the East India Company to keep him in
their service a moment longer than they liked ; nor upon him, to
continue in their service longer than he liked. Either party was at
liberty to put an end to the contract, under proper circumstances and in
a proper situation. The reduction of the batta took away from the
officers what induced them to enter into the Company's service ; and
the enemy [the ]Mahrattas] had been defeated before the plaintiff
resigned his commission....
Lord Mansfield, C.J. . . . The officers of each brigade combined
together to throw up their commissions ; and all of them (about
200 in number) to resign at the same time. The plaintiff was one
of those who thus combined... to throw up their commissions, in order
to force the Company into allowing them the double batta. The very
measure shews that it was meant to terrify and intimidate the
Company into the allowance. And the danger of such a combination,
and of all these officers quitting the service at once, is too obvious to
be denied or doubted. There must, at the least, have been great
danger of an insurrection amongst the sepoys and common soldiers j
though there might not have been any from the Mahrattas
Yates, J. This combination being a criminal act, it could not be
a legal determination of the service.
New trial refused.
\_Agreements to pervert the course of justice are indictable as
Conspiracies. ^
[See Rex v. Macdaniel, supra, p. 98.]
SECT. XVII.] The King v. Starliny. 403
\Conspiracy so to carry on trade as to tlhninish the revenue.]
THE KING V. STARLING.
King's Bench. 1663. 1 Siderfin 174; 1 Lkvinz 125.
An information was preferred against Sir Samuel Starling, an
Alderman of the City, and fifteen other London brewers, for having con-
federated and conspired to brew no 'gallon beer' — which is that small-
beer with which the poorer people are supplied — with intent to move
the common people to puU down the Excise House. The information
further charged that, whereas the farm-rents of the Excise (then
.£118,000 a year) were settled upon the King by Act of Parliament
and formed part of his revenue, the defendants had endeavoured by
combination and confederacy to impoverish the farmers of the Excise.
[Starling had failed in his attempt to become one of the farmers, and
was consequently envious of their prosperity.] The trial was at bar.
The jury acquitted the defendants, except on the conspiracy to
impoverish the farmers of the Excise.
*****
A motion was made to quash the information on the ground that
the only charge found by the verdict was not a criminal oiience. It is
no offence punishable by our laws to impoverish another for the pur-
pose of enriching myself, as for instance by selling commodities at
cheaper rates than his ; 29 Lib. Ass. 45.
But after several discussions the Court adjudged that this is a
good verdict, on which judgment may be given for the King. For the
verdict refers to the information, and the information sets out that the
Excise is parcel of the revenue of the King ; and to impoverish the
farmers of it may make them incapable of paying the King his revenue
Starling was fined 500 marks and the other defendants 100 marks
each.
Hyde, Twisden, and EIeeling, JJ., held also that the bare con-
spiracy to diminish the King's revenue is punishable, though no overt
act was done; 27 Ass. 44, 43 Ass. 26.
26-
404 Select Cases on CHminal Law. [part ii.
[At common law^, even an agreement iu restraint of trade
ittiyht ainvunt iu a Conspiracy. \
THE KING V. THE JOURNEYMEN TAILORS
OF CAMBRIDGE.
King's Bench. 1721. 8 Modern U.
One Wise and several other journeymen tailors, of or in the town of
Cambridge, were indicted for a conspiracy amongst themselves to raise
their wages ; and were found guilty. Motion was maue iu arrest of
judgment, upon several errors iu the record.
* * * -x- *
Thirdly, because no crime appears upon the face of this indictment;
for it only charges them with a conspiracy in a refusal to work at so
much per diem ; whereas, they are not obliged at aU to work by tlie
day, but by the year, by 5 Ehz. c. 4.
The Court.... It is not for the refusing to work, but for con-
spiring, that they are indicted. And a conspiracy of any kind is
illegal, although the matter about which they conspired might have
been lawful for them, or any of them, to do if they had not conspired
to do it.
Fourthly, that this fact is laid in the town of Cambridge, but
it doth not appear by the record in what county Cambridge is ; which
it ought to do, because there are other towns of that name in England,
e.g. in Gloucestershire. And so it is a mis-trial, for there is no more
reason... [to summon the jury from] Cambridgeshire than any other
county. . . .
The Couet. . . . Cambridge being mentioned in several Acts of ParUa-
raent, the Court must take notice of such Acts, and wiU intend that
Cambridge is in the county of Caiubi'idge.
Fiftlily. This indictment ought to conclude contra jonnamn statuti,
for by the late statute, 7 Geo. I. c. 13, journeymen tailors [in London]
are prohibited to enter into any contract for advancing their wages
It was answered that the omission... is not material, because this
indictment is for a conspiracy; which is an offence at common law.
It is true that the indictment sets fortli that the defendants refused to
work under rates which were more than is enjoined [in London] by the
statute, for that is only two shillings a day. But... it is not for this
^ I.e. as the common law was understood until modern times. But it is now
held {Mogul Steamship Go. v. McGregor, L. R. [1892] A. C. at pp. 46, 57, 58) that
contracts in restraint of trade, though so unlawful as to be unenforceable, are not
indictable as Crimes.
SECT. XVII.] The King v. TJie Journeymen Taihn'n. 4U5
denial to work... but for a conspiracy to raise tlieir waj;i's, that these
defendants are indicted. It is true it does not appear by the record
that the wages demanded were excessive ; but that is not material,
because it may be given in evidence.
The Court. This indictment need not conclude contra for mam
statuti; because it is for a conspiracy, which is an offence at common
law.
So the judgment was confirmed by tlie whole Court.
[Editor's Note. See also the case of Rex v. Hammond, infra, p. 411. But the mloB,
(based partly on the common law doctrine of Conspiracy and partly upon (Jtatutea),
by which it was made criminal for associations of workmen to attempt to nfTect the
rate of wages and the course of the labour-market, have been bronpht to an end by
a. 3 of the Conspiracy and Protection of Property Act, 1875 (38 and 39 Vict. c. 86).
This provides that an agreement to do, or procure to be done, any act in con-
templation or furtherance of a trade dispute between employora and workmen shall
not be indictable as a conspiracy, if such act committed by one person would not
be a crime puni^shable with imprisonment. See also the extension of this principle
to civil proceedings by the Trade Disputes Act 1906, s. l.J
[What injv/rious agreements may not he indictable as Cortspiracieit!]
THE KING V. SEWARD AND OTHERS.
King's Bench. 1834. 1 ADOLrnus and Ellis 706.
This was an indictment for conspiracy, found at the General
Sessions of Oyer and Terminer and Gaol Delivery in and for the Isle
of Ely, holden at Ely. [The conspiracy alleged was a combination by
certain parishioners of Chatteris to give a poor man, who wa,s legally
settled in the parish of St Ives, a sum of three pounds to marry a
female pauper then legally settled in, and actually chargeable to, the
parish of Chatteris; and thereby throw her maintenance upon the parish
of St Ives. The marriage had taken place, and the wife had been
removed to St Ives, and had there received poor-law relief. The de-
fendants having been convicted, a motion was made for a rule to shew
cause why the judgment should not be arrested, because the indictment
did not shew that the marriage had been procured by any violence,
threat, contrivance, or other sinister means.]
406 Select Oases on Crimhud Law. [part ii.
Edly. The objection here taken is founded on au erroneous view
of the otFence. The charge is, in substance, not a conspiracy to procure
a maiTiage, but a conspiracy unlawfully to exonerate one parish from
the maintenance of a pauper and throw it upon another. A con-
spiracy merely to procure a marriage would not be indictable ; but it
becomes an offence if the thing is to be done for an unlawful end or
by unlawful means. Here an unlawful end is stated, viz. to transfer
a burden wrongfully from one parish to another ; hence if no means
were stated, or no overt acts alleged, the indictment would still be
good.
Lord Denman, C.J. I am of opinion that this rule must be
absolute. An indictment for conspiracy ought to shew that it was
either for an unlawful purpose, or to effect a lawful purpose by un-
lawful means : that is not done here. To say that meeting together
and combining to exonerate one parisli from the burden of a poor
person and throw it on another, amounts to an indictable conspiracy,
is extravagant. If such a proposition could be maintained, it would
apply to parishioners hiring out a poor boy from their own parish
into another. Then when it is said that such a proceeding is a con-
spiracy, because it is to be carried into effect by unlawful means, we
must see in the means stated something which amounts to an offence.
*****
Taunton, J. I am of the same opinion. Merely persuading an
unmarried man and woman in poor circumstances to contract matri-
mony, is not an offence. If, indeed, it were done by unfair and undue
means, it might be unlawful; but that is not stated. There is no
averment that the parties were unwilling, or that the marriage was
brought about by any fraud, stratagem, or concealment, or by duress
or threat. No unlawful means are stated, and the thing in itself is
not an offence: to call this a conspiracy, is giving a colour to the case
which the facts do not admit of. As stated, it is nothing more than
the case where the officers of a parish agree, after consultation, to
apprentice out children from their own parish into another. No doubt,
when tliat is done, the one parish may be exonerated and the other
subjected to a charge ; but no offence is committed.
SECT. XVII.] The King and Queen v. Thorp and otiiers. 4U7
\_A Conspiracy requires more than one conspiralur.l
THE KING AND QUEEN v. THORP AND OTHERS.
King's Bench. IGOfi. 5 Modeun 221; Combkrbacmc 458.
Information against Thorp and others, setting forth that they
and each of them, being persons of ill fame, did, on the tenth of
October in the fifth year of William and Mary, and at divers other
times as well before as after, wickedly, unlawfully, and deceitfully,
conspire, at Winchester, to take one Edward Mitchell, being under
the age of eighteen years, the only son and heir of Robei-t Mitchell,
Esq., and to carry him out of the custody, counsel, and government
of his said father, without his notice and against Iiis will, and to
marry him to Cornelia Holton, a person of ill name and of no fortune;
that the defendants did unlawfully assemble themselves together to
accomplish the said conspiracy and wicked intentions ; that they, and
every one of them, by divers false, malicious, and deceitful insinua-
tions, did falsely, unjustly, maliciously, and deceitfuUy persuade the
said Edward Mitchell to hate his father, and to leave Winchester
School where he was placed by his father for his learning, and to
frequent the house of the defendant Thorp at Winton, and did persuade
the said Edward Mitchell, and by divers false allurements did compel
him, to be drunk with strong waters and other liquors ; and that they
introduced Cornelia Holton into his company, and did unlawfully and
deceitfully, by false speeches, persuade and solicit him to be married to
her; that in further prosecution of their intentions the defendants,
and every of them, on the sixteenth of October in the fifth of William
and Mary, did, by divers false assurances and promises, solicit, invite,
and procure the said Edward Mitchell to leave the said school, against
the will and without the notice or consent of his father, and did
receive, maintain, and keep him, with an intent to persuade hiui to
marry the said Cornelia Holton ; that the said Cornelia Holton did
contract matrimony with the said Edward Mitchell, on the twentieth
day of October, in the fifth year aforesaid, at Watlington, in the
county of Oxford, by the abetting and false means of the said defend-
ants, to the damage of the said father, (fee.
Upon not guilty pleaded, this information was tried at the Assizes
at Winchester, and all the defendants were found not guUty, e.xcept
Thorp ; and he was acquitted of compelling the said Mitchell to be
drunk, and found guilty of all the rest in the information.
It was moved in arrest of judgment : — Firstly, that this information
does not contain any matter of misdemeanor. As it is no crime in
408 Select Cases on Criminal Law. [part ii.
liini to marry, it is no crime to persuade him to marry. Secondly, it is
laid by way of a conspiracy ; and the defendant Thorp being alone found
guilty, there can be no judgment against him. Because one cannot
conspire.
*****
Holt, C.J. It is a great crime and worthy to be punished; and so
it shall be, if we can any way come at it.
[But no judgment was ever given.]
[Editors Note. As to when conspiracies to bring about a marriage are
criminal, see the cases of Wade v. Broughton, 3 Ves. & B. 173, aud Rex v. Edward
Gibbon WakefieU, 2 Lewin 1.]
\How a Gonsinracy is proved.]
THE KING V. PARSONS AND ANOTHER.
King's Bench. 1762. 1 Wm Blackstone 391.
The defendants were convicted on an information for a conspiracy
to take away the character of one Kempe, and accuse him of murder,
by pretended conversations and communications ^vith a ghost, that
conversed by knocking and scratching in a place called Cock-lane'.
When they were brought up for judgment, Lord Mansfield, who tried
the information, declared, that he had directed the jury that there was
no occasion to prove the actual fact of conspiring, but that it miglit be
collected from collateral circumstances'; and he should be glad to know
the opinion of his brethren, whether he was right in such direction.
Quod nemo negavit.
[See also Rex v. Hunt aupra, p. 388.]
* [In Smithfield. Parsons' daughter, a child of eleven, effected the deceptions.
For details, see Boswell's Life of Dr Johnson, under June 1763.]
2 So where the defendants severally had bribed the prosecutor's apprentices to
put grease into his cards (he being a card -maker), their being all of one family, and
concerned in card-making, was held evidence of a conspiracy; Rex v. Cope, 1 Stra.
144 ; infra, p. 410.
SECT. XYLL] Rex V. Pywell and others. 4U'J
\What circumstances are insullicient proof.^
REX V. PYWELL AND OTIli:i;S.
Westminster Nisi Prius Sittings. 181G. 1 Starkt!- 102.
This was an indictment against the defendants for a conspiracy
to cheat and defraud General Maclean, by selling him an unsound
horse.
It appeared that the defendant Pywell had advertised the sale
of horses, undertaking to warrant their soundness. Upon an appli-
cation by General Maclean at Pywell's stables, Budgery, another of
the defendants, stated to him that he had lived with the owner of
a horse which was shewn to him, and that he knew the horse to be
perfectly sound, and, as the agent of Pywell, lie warranted him to be
sound.
It was discovered, very soon after the sale, that the animal was
nearly worthless.
Lord Ellenborough intimated that the case did not assume the
shape of a conspiracy ; the evidence would not warrant any proceeding
beyond that of an action, on the warranty, for the breach of a civil
contract. If this (he said) were to be considered to be an indictable
offence, then instead of all the actions which had been brought on
warranties, the defendants ought to have been indicted as cheats.
And no indictment in a case like this could be maintained without
evidence of concert between the parties to effectuate a fraud.
The defendants were accordingly acquitted.
\Wide range of admissible evidence.'^
REX V. ROBERTS AND OTHERS.
Westminster Nisi Prius Sittings. 1808. 1 Campbell 399.
This was an indictment against the defendants, which charged that,
being persons of evil fame and in low and indigent circumstances, they
conspired together to cause themselves to be reputed persons of con-
siderable property, and in opulent circumstances, for the purpose of
defrauding one A. B., &c.
410 Select Cases on Crhninal Law, [part ii.
Evidence being given of their having hired a house in a fashionable
street, and represented themselves to one tradesman employed to
furnish it as people of large fortune, a witness was called to prove
that, at a different time, they had made a similar representation to
another tradesman.
Marryat objected that it was not competent to the prosecutor to
give evidence of various acts of this sort ; and that he was bound to
select and confine himself to one. It was impossible for a man to come
prepared to explain all the transactions of his life; and if this mode
of fixing a crime were allowed, no one could be secure.
Lord Ellenborough. This is an indictment for a conspiracy to
carry on the business of common cheats ; and cumulative instances are
necessary to prove the offence. The same sort of evidence is allowed
in an indictment for barratry. In a prosecution for high treason
itself, the gravest of all offences, if the indictment lays that the
prisoner imagined the death of the King, and in pursuance of such
imagination wrote divers letters to the enemies of our Lord the King,
or held divers consults upon that subject, evidence may be given of the
prisoner's having written any treasonable letter, or attended any meet-
ing held for treasonable purposes. The objection is unfounded.
The defendants were all found guilty.
[n'io?e range of admissible evidence.^
REX V. COPE AND OTHERS.
Middlesex N.P. Sittings. 1718. 1 Strange 144.
The husband and wife and servants were indicted for a conspiracy
to ruin the trade of the prosecutor, who was the king's card-maker.
The evidence against them was, that they had at several times given
money to the prosecutor's apprentices to put grease into the paste,
which had spoiled the cards. But there was no account given that
more than one at a time ever were present, though it was proved they
had all given money in their turns.
It was objected that this could not be a conspiracy ; for two men
might do the same thing without having any previous communication
with one another.
But Pratt, C.J. ruled that, all the defendants being of a family,
and concerned in making of cards, it would amount to evidence of a
i.-onspiracy ; and directed the jury accordingly.
SECT. XVII.] Hex V. Hammond and W'ihb. 4H
[H'u/e range of admisiiible evidimc.]
REX V. HAMMOND AND WJOr.B.
King's Bench. 1799. 2 Espinas.sr 718.
This was an indictmeiit againsfc the defendants, who were journey-
men shoemakers, for a conspiracy to raise their wages. [See note at
p. 405, supra.] It was stated, on the part of the prosecution, that a plan
for a combination amongst journeymen shoe-makers had been formed
and printed in the year 1792; regulating their meetings, the sulv
scriptions for their mutual support, and other matters for their mutual
government in forwarding their designs. The prosecutor's counsel
were going into evidence of this, when the defendants' counsel objected
to its being admitted until it had been brought home to the defendants,
and they had been pi-oved parties to the combination stated.
Lord Kenyon. If a general conspiracy exists, you may go into
general evidence of its nature and the conduct of its members, so as to
implicate men who stand charged with acting upon the terms of it
years after those terms have been established ; and who may reside at
a great distance from the place where the general plan is carried on.
So it was done in the State Trials in the year 1745; where, from the
nature of the charge it was necessary to go into evidence of what was
going on at Manchester, in France, in Scotland, and in Ireland, at the
same time.
His Lordship therefore permitted a person, who was a member of
this society, to prove the printed regulations and rules of the society,
and that he and others acted under them in execution of the conspiracy
charged upon the defendants Hammond and Webb, as evidence intro-
ductory to the proof that they were members of this society, and
equally concerned. But he added that it would not be evidence to
affect the defendants, until they were shewn to be parties to the same
conspiracy.
In the course of the evidence, it was sUted that the demands of the
journeymen had been occasioned by some of the masters giving wages
beyond what were the usual ones in the trade.
Lord Kenyon said that masters should be cautious of conducting
themselves in that way, as they wei-e as liable for a conspiracy as the
journeymen. There was a case where a master, from shewing too groat
indulgence to his men, had become himself the object of a prosecution.
The defendants were found guilty.
412 Select Cases on Criminal Law. [part ii.
[The nature, and the evidence, of Conspiracy. "^
REGINA V. PARNELL AND OTHERS.
Irish Queen's Bench Division. 1881. 14 Cox 505.
Information by Her Majesty's Attorney General for Ireland against
Charles Stewart Parnell, M.P., John Dillon, M.P., Joseph Gillis Biggar,
M.P., Timothy Daniel Sullivan, M.P., Thomas Sexton, M.P., Patrick
Egan, P. J. Sheridan, and others.
The first count of the information charged that "The traversers,
intending, with others, to impoverish and injure owners of farms in
Ireland let to tenants in consideration of the payment of rent, did
conspire combine and confederate to solicit large numbers of tenants,
in breach of their contracts of tenancy, to refuse to pay, and not to pay,
to the owners of farms the rents which they the said tenants were and
might become lawfully bound to pay; and which the said owners
might become lawfully entitled to be paid under the said contracts of
tenancy; to the great damage of the said owners, and to the evil
example of others in the like case oifending."
* * * -t- *
[The case came on for trial at the bar of the Queen's Bench Division,
before Pitzgerald, J., and Barry, J.]
Fitzgerald, J A conspiracy consists in the agreement of two or
more to do an unlawful act, or to do a lawful act by unlawful means.
By the terms 'illegal' and 'unlawful' it is not intended to confine the
definition to an act that would in itself be a crime or an ofience. They
extend to and may embrace many cases in which the purpose of a
conspiracy, if effected by one person only, would not be a criminal act;
as, for instance, if several persons combined to violate a private right,
the violation of which, if done by one, would be wrongful but not
in itself criminal. If, for instance, a tenant withholds his rent, tliat is
a violation of the right of his landlord to receive it, but would not be a
criminal act in the tenant, though it would be the violation of a right.
But if two or more incite him to do that act, their agreement so to incite
him is by the law of the laud an offence. Conspiracy has been aptly
described as divisible under three heads : — where the end to be attained
is in itself a crime; where the object is to do injury to a third party or
to a class, though if that injury were effected by a single individual
it would be a civil wrong but not a crime; and where the object is
lawful, but the means to be resorted to are unlawful. The first defini-
tion, that is, where the end to be obtained is criminal, speaks for itself.
One of the charges against the defendants is that they conspired to
SECT, xvir.] Ttegiua v. Parnell and othn-s. II ;;
advise that to be done which in itself wus a crime ; namely, forcil>ly to
retake possession of the land which the law had awarded to the land-
lord. Of the tliird, the illustration commonly given is where a man has
a right to real property, and two or three agree to support him in that
right ; (so far their action is proper, to support him in the right which
he really has;) but they agree to give him that support by unlawful
means, e.g., by the procuring of some fabricated evidence. The agree-
ment to do this by unlawful means makes it an oflence. As to the
intermediate definition, it is not inaptly illustrated by liey. v. Draitt
(10 Cox C. C. 592). In that case Baron Bramwell says, "The public have
an interest in the way in which a man disposes of his industry and his
capital; and if two or more persons conspire by threats, intimidation,
or molestation, to deter or influence him in the way he should employ
his talents or his capital, they become guilty of an indictable offence."
And he adds emphatically, "that is the common law of the land." In
such cases, the agreement by two or more persons to effect an injury
or wrong to another is constituted an offence, because a wron" to be
effected by a combination assumes a formidable character. When
done by one alone, it is but a civil injury; but it assumes a formidable
or aggravated character when it is to be effected by the powers of a
combination. And it is justly so; because, though you may assert your
rights against one individual, how can you defend your rights against
a number of persons combined together to inflict a wrong on youl...
A great deal has been said as to conspiracies to effect objects
which would not be criminal in themselves ; and you were, above all,
referred to the action of Trades Unions. But the action of Trades
Unions, which is now regulated by Statute [supra, p. 405], is totally
different from the charge which is here made against the defendants.
Workmen may agree in common not to work unless they arc paid
certain prices. The same in the case of the employers of labour. They
may agree not to take men into their employment unless at certain
rates. They are fi'ee to do that. But see how difierent the circum-
stances are. A man or a body of men may say, " We won't give our
labour unless we are paid in a certain way"; or a body of employers
may say, "We cannot give employment, profitably to ourselves, unless
you work at a certain rate." How different to the case before us !
For the combination alleged here is an agreement to incite farmers,
who have agreed to pay certain rents, not to pay them ; and not only
not to pay the rents which they have contracted to pay, but to keep
the farms by force and against the law of the country. There is no
analogy between the two cases.
Some observations have been addressed to you in the course of this
414 iSekct Cases on Criminal Law. [part u.
case, and have been often repeated, to the effect that there has been
no proof given that the defendants ever met, or entered into or became
parties to any agreement or confederacy or conspiracy. ... But I have
now to inform you, as part of the law of conspiracy, that there is no
necessity that there should be express proof of a conspiracy ; such as
proof that the parties actually met and laid their heads together, and
then and there actually agreed to carry out a common purpose. Nor
is such proof usually attempted. In Mulcahy's case (L. R. 3 H. of
L. 306), a great judge (Mr Justice Willes) says, " So far as proof goes,
conspiracy, as Grose, J., says in Rex v. Brissac (4 East 171), is
genei'ally a matter of inference, deduced from certain criminal acts of
the parties accused, done in pursuance of an apparent criminal purpose
in common between them." It may be that the alleged conspirators
have never seen each other, and have never corresponded ; one may
have never heard the name of the other ; and yet by the law they may
be parties to the same common criminal agreement. Thus, in some of
the Fenian cases tried in this country, it frequently happened that one
of the conspirators was in America, the other in this country; that
they had never seen each other ; but that there were acts on both
sides which led the jury to draw the inference that they Avere engaged
in accomplishing the same common object. And when the jury had
arrived at this conclusion, the acts of one conspirator became evidence
against the other ; as in a remarkable case at Cork (as singular and
remarkable a case as I ever met with). It was a case in which two
persons had been connected with the American service in the late war.
One was a captain of cavalry on the Southern side, and the other
was a captain on the Northern side. The one was a native of this
country, the other a native of America. They had been opposed to
each other during the war ; they had never seen each other ; and
amongst the documents found upon them when arrested was a letter in
which one complained of violence and murder committed by the
commander on the other side. These two men had never seen each
other. When they arrived at Queenstown they were arrested. The
one had come to take command of a brigade of Fenian ca\alry, and
liad brought with liim as his whole equipment a saddle, a pair of spurs,
and two long pistols. The other was returning to Ireland ; and was
alleged to be a party to the Fenian conspiracy. They were put upon
trial in the same dock, upon the same indictment ; and the lirst time
they saw each other was when they thus stood face to face in the dock.
I mention this case as illustrating that a charge of conspiracy may be
well founded, even though the parties never saw each other....
Again, it has been suggested that secrecy is to some extent an
SECT. XVII.] Regina v. Parnell and others. 41 .=;
essential of conspiracy; and your attention has buuii repeatedly called
to the fact that all the proceedings of the defendants were above
board, that they were unconcealed, that they were not carried on in
the dark ; and it was urged that there could V)e no guilty conspiracy,
because all was done openly and above board. But I have to inform
you in point of law that, though secrecy is frequently a characteristic
of conspiracy, it forms no essential element of the crime. The crime of
conspiracy may be complete though all the proceedings of the con-
federates have been open and above board and unconcealed. In
point of law, secrecy or darkness forms no element in the crime of
conspiracy.
This law of conspiracy is not an invention of modern times. It
is part of our common law; it has existed from time immemorial.
It is necessary, to redress certain classes of injuries which at times
would be intolerable, and which, but for it, would go unpunished. If
the defendants have bioken the law in the manner alleged in the
information, there is no law of this land by which they could be
reached but by the law of conspiracy. It has been said that in England
this law has become entirely disused. But that is untrue ; it is a law
repeatedly put in force. It is seldom resorted to in political trials.
But in a political trial such as the present, if the defendants have
broken the law, their offence can only be reached by the common law
indictment for conspiracy.
SECTION XVIII.
PERJURY.
[Perjury declared to he criminal.']
REX V. ROWLAND AP ELIZA.
Star Chamber. 1613. Coke's Third Institute 164.
The King's attorney preferred an information in the Exclu'ijuer
against Hugh Nanny, Esq., the father, and Hugh Nanny, the son, and
others, for intrusion and cutting down a great number of trees, ifec, in
Penrose, in the county of Merioneth. The defendant pleaded not guilty,
and the trial being at the bar, Rowl. Ap Eliza was a witness produced
for the King, who deposed upon his oath to the jury, that Hugh, the
+16 Select Cases on Criminal Law. [part ii.
father, and Hugh, the son, joined in sale of tlie said trees, and commanded
the vendees to cut them down. Upon which testimony the jury found for
the King, and assessed great damages, and thereupon judgment and
execution was had. Hugh Nanny, the father, exhibited his bill in the
Star Chamber at the common law, and charged Rowland ap Eliza with
perjury, and assigned the perjury in that he, the said Hugh, the father,
never joined in sale, nor commanded the vendees to cut down the trees,
Ac. And it was resolved, first, that perjury in a witness was punish-
able by the common law. Secondly, that perjury in a witness for the
King was punisha,ble by the common law, either upon an indictment, or
in an information.... And the said Rowland Ap Eliza was by the
sentence of the Court convicted of wilful and corrupt perjury.
[Editor's Note. Mr Justice Stephen pronounces this decision to have been
"one of the boldest, and, it must be added, one of the most reasonable, acts of
judicial legislation on record" (Digest Cr. L., Ist ed., p. 345).]
[Pe7'ju7y can only he commitled in a judicial proceeding.^
THE KEEPERS OF THE LIBERTIES OF ENGLAND v.
HOWELL GWINN.
Upper Bench. 1652. Style 336.
Howell Gwinn was indicted of perjury for taking of a false oath in
an affidavit made before a Master of the Chancery, and was found
guilty'. It was moved in arrest of judgment (i) that it doth not
appear by the record that the oath made was anything material to the
suit depending in that Court; and so it is but an extra-judicial oath,
and is not perjury either by the common law or by statute ; (ii) it doth
not appear that the party took a false oath ; for it appears not whether
the Master of the Chancery had any power to take this oath.
RoLLE, C.J. Perjury at the common law is intended to be in
some Court, and in legal proceedings. For a false oath, made before
^ p. 363. " Memorandum. Howell Gwinn cut off a dead man's hand, and put
a pen and a seal in it; and so signed and sealed and delivered with the dead hand;
and swore that he saw the deed sealed and delivered."
SECT. XVIII.] Keepers of the Liberties of Emjlaiid \. a irin n. 417
us, not touching a matter in question between parties, an indictment of
perjury lies not. ...A false outh is one thing, and perjury is another;
for one is judicial, and the other is extra-judicial. And the law inllicta
greater punishment for a false oath made in a Court of justice than if
it be made elsewhere; because of the preservation of justice.
TnE Court held the indictment ill; and gave judgment against the
Custodes.
[Editor's Note. Following this rule, the Perjury Act 1911 (1 and 2 Geo. V. c. 6,
8. 1), limits the definition of Perjury to wilful material falsehoods told "in a
judicial proceeding." But it extends Perjury to cases where the witness has
affirmed or declared, and iwt taken a religious oath.]
\_But taking a false oath in a matter which, though extra-judicial,
concerns the public, is indictable; although not as Perjury.]
REX V. FOSTER.
Crown Case Reserved. 1821. Russell and Ryan 459,
The defendant was convicted before Mr Justice Bayley, on an
indictment for perjury, in falsely swearing before a surrogate (in order
to obtain a marriage licence) that his intended wife had been residing
in the parish of Sunderland.
The learned Judge, not being aware of any instance in which
a false oath before a surrogate had been made the foundation of such
an indictment, thought it right to reserve the case.
In Easter term, 1821, the Judges met and were unanimously
of opinion that perjury could not be charged upon an oath taken
before a suri-ogate. The Judges were also of opinion that, as the
indictment in this case did not charge that the defendant took the
oath to procure a licence, or that he did procure one, no punishment
could be inflicted. The Judges directed a pardon to be applied for.
[Editor's Note. The Perjury Act 1911 (s. 2) now makes it not only a mis-
demeanor, but even one as severely punishable as Perjury itself, for any person,
who (otherwise than in a judicial proceeding) is "authorised by law to make any
statement on oath (or on affirmation or declaration) for any purpose," to make that
statement with wilful and material falsity.]
27
418 Select Cases on Criminal Law. [part ii.
[The falsp statement must he material to the proceeding sK"^
REGINA V. HOLDEN.
Lancaster Assizes. 1872. 12 Cox 167.
The prisoner was indicted for perjury committed by liira at the
hearing, before the Justices at Petty Sessions, of a summons taken out
by him against the present prosecutor for using language calculated to
incite him (Holden) to commit a breach of the peace....
The prisoner, who was a saddler at Colne, was removing his goods
from his shop ; and, as he was standing on the top of the cart, arranging
the goods, the horse moved slightly. This so enraged him that he
jumped off the cart and kicked the horse and struck it on the head.
The prosecutor, seeing the prisoner thus act, shouted to him, " That is
nice conduct for a religious man ! If there was a Society here for the
prevention of cruelty to animals, I would summon you." Whereupon
the prisoner replied, " If you don't go into your own house, I will do
the same to you." The prosecutor then retorted in these words : —
" Thou can't ; thou art a squinting, lying devil." Next day the prisoner
laid an information ^ against the prosecutor for using language calcu-
lated to incite him to commit a breach of the peace. The Justices
heard the charge, and eventually dismissed it. During the case, several
witnesses proved that they saw the prisoner kick and strike the horse.
But the prisoner in cross-examination swore distinctly that he had not
done anything of the kind. The magistrates thereupon committed the
prisoner to the Assizes for having committed perjury.
Mellor, J., said he doubted whether perjury could be assigned on
the statement made by the prisoner that he had never kicked or struck
the horse ; as he did not think the words were material to the issue.
Hawthorne, for the Crown, said that as it went to the credit of the
witness, it was material
Mellor, J. . . .My brother Lush and I have considered this case. We
are of opinion that there can be no assignment of perjury. The words
used were merely collateral to the issue then before the Court.
Not guilty
» [Editor's Note.] To the judicial "proceedings," in the case of Terjuiy ; to
the "purpose" for which the Ktatement is made, in extra-judicial cases. See the
Perjury Act, 1911, ss. 1 (2), 2 (1). Cf. Keepers v. JIoivcll Givimi, mpra, p. 416.
2 [Editor's Note.] As the spoken words were not a crime (though in a London
6treet they would be, under 2 and 3 Vict. c. 47, s. 54, sub-s. 13) the information
\i&B probably only in order to have the utterer bound over to keep the peace.
SECT, xviii.] Tlie Queen v. Ba/cer. 4jy
[What may he material.]
THE QUEEN v. BAKER.
Crowx Case Ricskkvkd. 1895. L.R. [1895] 1 Q.B. 797.
Case stated by His Honour Judge Chalmers, sitting as Commissioner
of Assize.
The defendant Baker was tried on February 9, 189"), at the
Ghimorganshire Assizes, on a charge of wilful and corrupt perjury.
The substance of the indictment was that, on December 18, 1894
at the Petty Sessions held at Cardiff before the stipendiary magistrate,
he, Baker, was charged with the odence of selling beer witliout a licence;
and, having been duly sworn, deposed that he had never authorized the
plea of guilty to be put in to a previous charge of selling beer without a
licence, contrary to section 3 of the Licensing Act, 1872^, on Noveuiber
6, 1894, and that he had not authorized his solicitor to put in the plea
of guilty to the charge, even by an indirect authority, and that he had
no knowledge that his solicitor was going to plead guilty on his behalf,
and that it was against his wish and will that the plea of guilty was
put in.
Evidence was called on behalf of the Crown to shew that the
defendant, after full explanation of the matter, had authorized his
solicitor. Belcher, to plead guilty on his behalf ; and that when he was
informed of what had been done he expressed himself as perfectly satis-
fied with the result.
At the conclusion of the case for the Crown, counsel for the de-
fendant took the objection that, even if the statements made by Baker
were knowingly false, they could not amount to perjury, because they
were not material to the issues then pending before the stipendiary
magistrate.
The commissioner held that Baker, having tendered himself as a
witness under 35 and 36 Vict. c. 94, s. 51, sub-s. 4, was properly
examined at that stage of the proceedings concerning the circumstances
of his previous conviction; and that his answers were material, inasmuch
as, in the event of a conviction, the facts deposed to would be taken
into consideration by the magistrate in the ultimate determination of
the case. But he said he would state a case on the objections raised.
The jury found the defendant guilty.
The question for the opinion of the Court was, whether the above
statements of the defendant were material to the issues then depending
before the stipendiai-y magistrate.
* bo aud iJG Vict. o. 94.
27 2
420 Select Cases on driminal Law. [part ii.
Lord Russell of Killowen, C.J. The sole point for our considera-
tion in this case is, whether the statements made by the defendant,
which the jury have found to have been made falsely and wilfully, were
material to the case which was before the stipendiary magistrate when
the defendant was charged for the second time with the ofience of
selling beer without a licence. I will take the grounds relied on fur
the defendant in the order in which they are stated in the case. The
first ground taken is that, as the defendant had admitted his preWous
conviction, and had not appealed therefrom, it was immaterial to the
then pending inquiry whether the previous plea of guilty had been put
in by the defendant's consent or not. The answer to that contention is
that the defendant's answers would affect his credit as a witness, and
all false statements, wilfully and corruptly made, as to matters winch
affect his credit, are material. The magistrate may be influenced, in
arriving at his decision, by the circumstances of the previous conviction,
and, if the defendant's solicitor had pleaded guilty on his behalf with-
out his knowledge or consent, that circumstance might have been
taken into consideration as affecting the amount of punishment. The
second ground taken is that the previous conviction could only become
material when the magistrate decided to convict in the then pending
proceeding ; and that, as a fact, the proceedings had been adjourned to
await the result of the prosecution for perjury. I do not see the
relevance of that argument. The magistrate must consider the case on
the evidence given before him, and the circumstances may have an
influence on the punishment. If on the previous occasion the defendant
had, as he alleged, been convicted per incuriam, the magistrate might
have given him the benefit of that fact, and might have treated the
subsequent charge as if it had been a charge of a first offence. The
third ground taken is^ that a previous conviction only affected the
amount of punishment to be awarded by a magistrate, and not any
issue to be determined by him, and further that the magistrate could
only take cognizance of the fact of the previous conviction, and not of
the circumstances under which it took place. But it is wrong to
suggest that the magistrate could only take cognizance of the fact of
the previous conviction. For these reasons I am of opinion that the
words stated in the case were material. I will deal shortly with the
authorities. In Reg. v. Overton " the date of a receipt which had been
given for the price was held material ; on the ground that every question
on cross-examination of a witness which goes to his credit is material.
1 [Editor's Note.] Consider lieg. v. Tate (12 Cox 7). But is not this ground
now set aside by the wide words of the Perjury Act, 1911, s. 1 (1)— "material
in that proceeding"^ " Car. and Marsh. 655.
SECT. xviH.] The Queen \. Baker. 421
The case afterwards came before a Court consisting of eleven judj,M's,
who supported the view adopted by I'arke, B., and Patteson, J. In
Jieg. V. Lavey\ where a plaintill" in a county court had falsely sworn
that she had never been tried at the Old Bailey, and had never betin in
custody at the Thames Police Station, the evidence was held to Ijo
material. This, again, was on the ground that it affected her credit.
In Reg. v. Gibbon'^ it was held by eleven judges (Martin, B., and
Crompton, J., doubting), that perjury might be assigned on evidence
going to the credit of a material witness in a cause, although such
evidence, being legally inadmissible, ought not to liave been received.
That is a very strong authority — much stronger than is needed to
support the conviction in the present case. I am of opinion that the
evidence was material ; and the conviction was right, and ought to be
aflBrmed.
Tlie other four Judges concurred.
Conviction aflSrmed.
\_Mens rea is necessary.^
[Self-contradiction is not sufficient evidence for conviction.']
REX V. MARY JACKSON.
York Assizes. 1823. 1 Lewin 270.
Prisoner was indicted for perjury. It appeared that she had made
two statements on oath, one of wliich was directly at variance with the
other.
HoLROYD, J., to the jury : — Although you may believe that, on one
or other occasion, she swore that which was not true, it is not a
necessary consequence that she committed perjury*. For there are
cases in which a person might very honestly and conscientiously swear
to a particular fact from the best of his recollection and belief, and,
from other circumstances at a subsequent time, be convinced that lie
was wrong, and swear to the reverse ; without meaning to swear falsely
either time. Again, if a person swears one thing at one time, and
another at another, you cannot convict if it is not possible to tell which
was the true and which was the false.
1 3 C. and K. 2G; and see 21 L. J. E. (M.C.) 10. '■' L. and C. 109.
3 [Editok's Note.] And, on the other liand, a person may have committed
perjury, although the fact which he swore to leas true. For "where a man swears
to a particular fact without knowing at tlie time whether the fact be true or false,
it is as much Perjury as if he knew the fact to be false; and is equally indictable;"
(6 T. R. (537). This rule is preserved by the Perjury Act, 1911, ss. 1 and 2.
422 Select Cases on Criminal Law. [part ii.
[ What evidence is sufficient for conviction.^
REGINA V. HOOK.
Crown Case Reserved. 1858. Dearsly and Bell 606.
[The prisoner had been convicted, at Chester Assizes, of a perjury.
On the hearing of an information, at Petty Sessions, against a pubHcan
for keeping his liouse open during proliibited hours. Hook had sworn
"I did not see any person leave the pubHc-house that night after
11 p.m." To prove the falsehood of this statement, evidence was given
(1) by three witnesses, that, to each of them separately, Hook had
stated that he had seen one Williamson and three other men leave after
eleven on the night in question, and by other witnesses (2) that the
four men did so leave the house, and (3) that Hook asked the publican
to give him a bribe to perjure himself. The question was reserved,
whether this evidence was sufficient to support a conviction for
perjury.]
M'lntyre, for the prisoner. It is clearly established that to support
a conviction for perjury the falsity of the oath must be proved directly
by two witnesses at least ; or there must be one witness and strong
corroborative evidence to confirm him. One witness is not sufficient,
because there would be only one oath against anotlier. Although it
was proved that persons did leave the house after eleven, there is no
evidence beyond the prisoner's own statement, when he was not upon
his oath, that he saw any person leave, or that the statement he made
when upon oath was false. Not only is there no oath that he did see,
but none that he was there and could have seen. Here, there is the
prisoner's statement not upon oath against his statement on oath ; and
the facts proved against him are consistent with his evidence on oath
being true, and his statements not on oath being false.
♦ « * * ♦
Byles, J. The rule requiring two ^ witnesses to prove perjury
reposes on two reasons ; first, that it would be unsatisfactory to convict
when there is but the oath of one man against the oath of another:
secondly, that all witnesses, even the most honest, would be exposed
to the peril of indictments for pcijury, if the single oath of another
man, without any confirmatory evidence, might suffice to convict.
But the letter and spirit of the rule, and both the reasons for it,
appear to me to be satisfied where, of two distinct admissions of the
1 [Editor's Note.] By s. 13 of the Perjury Act, 1911, no person can be con-
victed of any oflenro against it "fiolely on the evidence of one witness to t\xG falsity
of any statement alleged to be false."
SECT, xviii.] Reg'ina v. Hooh. 42:^
defendant inconsistent with his innocence, one is proved hy one witness,
and one by another.
It has been already held that the testimony of one witness di'ixjsing
to the defendant's admission on oath, if there is corroboration, is
enough ; Regina v. Wheatland^. But if a single witness deposing to an
admission of the defendant be one witness within the rule, then another
witness, deposing to another admission, must surely be a second witness
within the same rule —
Conviction affirmed.
SECTION XIX.
BIGAMY.
[^Tay he committed although the second marriage was invalid on other
grounds as well as that of the higamy.^
THE QUEEN v. ALLEN.
Crown Case Reserved. 1872. L.R. 1 C.C.C.R. 367.
*****
CocKBURN, C. J., delivered the judgment of the Court : — ^This case
came before us on a point reserved by Martin, B., at the last Assizes for
the county of Hants. The prisoner was indicted for having married
one Harriet Crouch, his first wife being still alive. The indictment was
framed upon the statute 24 and 25 Vict. c. 100, s. 57, which enacts
that " whosoever being married shall marry any other person, during
the life of the former husband or wife, shall be guilty of felony." The
facts of the case were clear. The prisoner had first married one Sarah
Cunningham, and on her death he had married his present wife, Ann
Pearson Gutteridge. The second wife being still living, he, on the
2nd of December, 1871, married one Harriet Crouch. So far the case
would appear to be clearly one of bigamy within the statute ; but, it
appearing that Harriet Crouch was a niece of the prisoner's first wifo,
it was objected, on his behalf, that since the passing of 5 and
6 Wm. IV. c. 54, s. 2, such a marriage was in itself void, and that
to constitute an offence, within 24 and 25 Vict. c. 100, s. 57, the second
marriage must be one which, independently of its bigamous character,
1 8 C. and P. 238.
424 Select Cases on Criminal Law. [part ii.
would be valid, and, consequently, that the indictment could not be
sustained. For the proposition that, to support an indictment for
bigamy, the second marriage must be one which would have been other-
wise valid, the case of Beg. v. Fanning'^, decided in the Court of Criminal
Appeal in Ireland, was cited; and, in deference to the authority of the
majority of the Judges in that Court, Martin, B., has stated this case
for our decision
The facts in Reg. v. Fanning were shortly these. The prisoner,
being a Protestant and having witliin twelve months been a professing
Protestant, was married, having a wife then living, to another woman,
who was a Roman Catholic, the marriage being solemnized by a Roman
Catholic priest.
Independently of the second marriage being bad as bigamous, it
would have been void under the unrepealed statute of the 19 Geo. II.
c. 13, w-hich prohibits the solemnization of marriage b}-^ a Roman
Catholic priest where either of the parties is a Protestant, and declares
a marriage so solemnized null and void to all intents and purposes.
On an indictment against the prisoner for bigamy, the invalidity of
the second marriage was insisted on as fatal to the prosecution. The
point having been reserved, seven Judges against four in the Court of
Criminal Appeal held the objection to be fatal, and quashed the con-
viction. After giving our best consideration to the reasoning of the
learned Judges who constituted the majority of that Court, we find
ourselves unable to concur with them, being unanimously of opinion
that the view taken by the four dissentient Judges was the right one...
The ground on which such a marriage is very properly made penal
is, that it involves an outrage on public decency and morals and
creates a public scandal by the prostitution of a solemn ceremony,
which the law allows to be applied only to a legitimate union, to
a marriage at best but colourable and fictitious, and which may be
made, and too often is made, the means of the most cruel and wicked
deception. It is obvious that the outrage and scandal involved in such
a proceeding will not be less, because the parties to the second marriage
may be under some special incapacity to contract marriage. JJ^ow the
words "shall marry another person" may well be taken to mean "shall
go through the form and ceremony of marriage with another person."
The words are fully capable of being so construed, without being forced
or strained ; and as a narrower construction would have the effect of
leaving a portion of the mischief untouched, which it must have been
the intention of the legislature to provide against, and thereby, as is
fully admitted by those who contend for it, of bringing a grave reproach
1 17 Ir. C. L. -iii'J ; 10 Cox, Cr. C. 411.
SECT. XTX.] The Queen v. Allen. 425
on the law, we think we are warranted in inferring that the words were
used in the sense we have referred to, and that we shall best give effect
to the legislative intention by holding such a case as the present to be
within their meaning. To assume that tlie words must have such
a construction as would exclude it, because the second marriage must
be one which, but for the bigamy, would have been as binding as the
first, appears to us to be begging the entire question, and to be running
directly counter to the wholesome canon of construction which pre-
scribes that, where the language will admit of it, a statutory enactment
shall be so construed as to make the remedy co-extensive with the
mischief it is intended to prevent.
In thus holding, it is not at all necessary to say that forms of
marriage unknown to the law, as was the case in Burt v. Burt^, would
suffice to bring a case within the operation of the statute. We must
not be understood to mean that every fantastic form of marriage to
which parties might think proper to resort, or that a marriage ceremony
performed by an unauthorized person or in an unauthorized place,
would be a marrying within the meaning of the 57th section of 24 and
25 Vict. c. 100. It will be time enough to deal with a case of this
description when it arises. It is sufficient for the present purpose to
hold, as we do, that where a person already bound by an existing
marriage goes through a form of marriage known to and recognized by
the law as capable of producing a valid marriage, for the purpose of
a pretended and fictitious marriage, the case is not the less within the
statute by reason of any special circumstances which, independently of
the bigamous character of the marriage, may constitute a legal disability
in the particular parties, or make the form of marriage resorted to
specially inapplicable to their individual case.
[^Mistaken belief that first spouse was dead.]
[See Regina v. Tolson, sujiva, p. 15.]
' 2 Sw. and Tr. 88; 29 L. J. R. (P. M. and A.) 133.
i'-Q Select Cases on Cnminal Law. [part il
[2'he evidence and the Burden of Froqf.]
THE QUEEN v. CURGERWEN.
Cnovrs Case Reserved. 1865. L.R. 1 C.C.R. 1.
The following case was stated by Willes, J. : —
The accused was tried before me at the last Cornwall Assizes for
bigamy; when the question arose whether, when a husband and wife
have lived apart for seven years, and he marries again, there being no
evidence to shew his knowledge of the existence of his first wife (so to
speak), he is liable to be convicted of bigamy unless he can prove that,
at the time of the second marriage, he did not know of his first wife
being alive ; in other words, whether the burden of proof of absence of
such knowledge rests upon the prisoner ; a question left undecided in
Beg. V, Briggs\
The prisoner was a man-of-war's man. The first marriage was to
one Charlotte Curgerwen, on the 1st day of September, 1852, at)
Buryan, in Cornwall. After the marriage the couple went to Ireland,
where the prisoner was then in the Coast Guard service ; and they lived
together until June, 1853, when, in consequence of some disagreement,
she left him, and returned to her father's house at Buryan. In
January, 1854, the prisoner went to Portsmouth to join a ship of war
which was proceeding to the Baltic, and was afterwards engaged in the
Russian war. Upon that occasion tlie first wife went to Portsmouth
to see the prisoner ofi"; and, after doing so, she, in or about March,
1854, returned to her father's house, where she remained without seeing
or corresponding with her husband, or, so far as the evidence went,
knowing whether he was dead or alive, until shortly before the prosecu-
tion. There was no evidence that he had in the mean time ever been
near where she lived, or had seen or heard of her or any member of her
family, or known whether she was dead or alive. After the war, bub
at what precise time did not appear, the prisoner returned to England,
and was again employed in the Coast Guard. On the 9th of July, 18(32,
the prisoner, being then at a Coast Guard station at a small place upon
the coast of Devon, contracted the second marriage with one Eliza
Hardy ; and they lived together as man and wife undisturljed until
this prosecution. A short time before the prosecution he was pro-
moted, and sent to a station in Cornwall about twenty miles from
where his first wife was living. This led to the proceedings. It
appears, therefore, that the prisoner and iiis first wife had been living
» Dearsly and Bell, C. C. 98; 2G L. J. R. (M. C.) 7.
SECT. XIX.] The Queen v. t'urgerweu. 4i:7
apart for more than eight years at the time of tlie second marriage; and
under circumstances in which it was at the least equally probable thnt
he did not know, as that he did know, of his first wife being alive, if
not, indeed, as I inclined to think, more probable that he did not know.
A statement of the prisoner before the magistrates was put in ; but,
fairly construed, it amounted only to an admission of having been
married twice, and of his then — that is, when before the magistrates —
knowing that his first wife was alive. Prideaux, for the prisoner,
contended that there was no evidence upon which a conviction could
properly take place, and that the burden of proving absence of know-
ledge was not upon the prisoner.
Knowing that the question of burden of proof in these cases wais
unsettled, I determined, in the event of a conviction, to reserve these
objections ; and I directed the jury, in substance, that the fact of the
second marriage whilst the first wife was alive made a prima facie case,
and that the burden was upon the prisoner to bring himself within the
exception in the statute ; and, it being clear that the living apart for
seven years was proved, they ought to acquit him if they were satisfied
that he did not know of his wife being alive within the seven years,
and convict if the evidence did not so satisfy them.
The jury found the prisoner guilty; and I let him out on l)ail. until
the opinion of the Court for Crown Cases Reserved was taken upon the
propriety of the conviction.
The case was considered on the 11th of November, 186.5, by
Pollock, C.B., Willes, J., Pigott, B., and Shek and Montague
Smith, JJ.
No counsel was instructed to argue on either side ; but
Prideaux, amicus curice, referred the Court to Jieg. v. IIeat(m\
where it was held by Wightman, J., tliat the burden of proof that
a, prisoner charged with bigamy has not been continually absent from
his wife for seven years, and that she was known by him to be living
within that time, is on the prosecution ; on the ground that the prisoner
cannot prove the negative. He also called the attention of the Court
to Peg. V. FUiti\ in which Willes, J., said that, where the husband had
been living apart from his wife for seven years, under such circum-
stances as to raise a probability that he supposed that she was dead
when he re-married, it might be necessary on the part of the prosecu-
tion to offer evidence to shew that he knew that his first wife was
alive.
Pollock, C.B. This question has arisen more than once before ;
and we are now asked to settle the law on the subject. Tlie term
1 3 Fost. and Fin. 819. ^ 1 I'ost. and Tin. 309.
428 Select Cases on Criminal Law, [part ii.
" burden of proof " is an inconvenient one, except when a person is
called upon to prove an atHrmative. Our attention has been called to
a note by the editor of Russell on Crimes', known as a gentleman of
great learning, ability, and research, who appears to have adopted the
view that the burden of proof lies on the prisoner. We think, however,
that it is contrary to the general spirit of the English law that the
prisoner should be called on to prove a negative ; and that it is better,
and more in agreement with the general doctrine and principles of our
criminal law, to adopt the rule laid down by Wightman, J., in Reg. v.
Heaton',
Conviction quashed.
[When the Burden of Proof is shifted to the prisoner. '\
THE QUEEN v. JONES.
Crown Case Reserved. 1883. L.R. 11 Q.B.D. 118.
The following case was stated by Stephen, J., for the opinion of the
Court.
Thomas Jones was convicted before me at the last Stafford Assizes
on a charge of bigamy.
It was proved that he was married to Winifred Dodds, on the
13th of March, 1865; and that he went through the ceremony of
marriage with Phoebe Jones, on the 11th of September, 1882, Dodds
being then alive. One witness said that the prisoner and his wife had
lived together after marriage, but how long she did not know. There
was no evidence at all as to their having ever separated ; or as to when,
if separated, they last saw each other.
In Reg. v. Curgerwen^, it was proved that the prisoner and his
wife had lived apart for many years before the second marriage, and it
was held that in that state of facts the prosecution were bound to prove
that the prisoner had known that his wife was alive within seven years
of the second marriage. As there was no proof tiiat Jones and liis wife
had ever separated, I thought that Reg. v. Curgerwen^ did not apply,
and directed the jury to convict the prisoner if they believed he had
married a second time in his wife's lifetime.
* Russell on Crimes and Misdemeanors, 4th edition, by Greaves, vol. i. p. 270,
note (Z).
" 3 Fost. and Fin. 819. » Law Rep. 1 C. C. R. 1 ; mpra, p. 426.
SECT. XIX.] The Queen v. Joxrs. vi^
He was found guilty; and I sentenced him to two inonLlis'
imprisonment and hard labour, but suspended the execution of the
sentence, and committed him, in default of bail, till this case slnjuld be
determined.
The question for the Court is, whether in these circumstances, 1
ought to have directed an acquittaU
No counsel appeared.
Lord Coleridge, C.J. We are opinion that this conviction must
be affirmed. There is nothing to shew that the parties ever separated
so as to bring the facts within the case cited of Reg. v. Curyerwen.
There is proof of the existence of a state of things, and no evidence of
the cessation of that state of tilings, consequently, the jiresumption is
that the existing state continued. That presumption could only have
been displaced by evidence, and no evidence displacing it was f(jrth-
coming.
Conviction athimed.
\ConJlict of Presuviptions.^
REGINA V, WILLSHIRE.
Crown Case Reserved. 1881. L.R. 6 Q.B.D. 366.
Case stated by Sir W. T. Charley, Q.C., the Common Serjeant of
the City of London. The prisoner was tried before me at the Session
of the Central Criminal Court, held on the 31st of January last. The
indictment charged that he married Charlotte Georgina Lavers on the
7th of September, 1879 ; and that he feloniously married Edith Maria
Miller on the 23rd of September, 1880, his wife Charlotte Georgina
being then alive. The indictment also charged that the prisoner had
been previously convicted of felony at the Central Criminal Court in
the month of June, 1868. A marriage between the prisoner and
Charlotte Georgina Lavers on the 7th of September, 1879, and a subset
quent marriage between the prisoner and Edith Maria Miller on the
23rd of September, 1880, were clearly proved. It was also proved that
at the time of the prisoner's marriage to Edith Maria Miller his alleged
wife Charlotte Georgina was alive. When the case for the pro.secution
was concluded, the prisoner's counsel asked the counsel for the prosecu-
430 Select Cases on Criminal Law. [part il
tion to call a witness whose name appeared on the indictment, but the
counsel for the prosecution declined to call him. The prisoner's counsel
then himself called the witness, who produced a certificate of the
previous conviction of the prisoner for felony in June, 1868. The
indictment for this felony and caption were also produced in Court by
the proper othcer at the instance of the prisoner's counsel. The indict-
ment was for bigamy, and alleged that the prisoner married Ellen Earle
on the 31st of March, 1864, and feloniously married Ada Mary Susan
Leslie on the 22nd of April, 1868, his wife Ellen Earle being then
alive. The prisoner's counsel contended that he had proved that the
prisoner had a wife living in June, 1868; and that, in order to convict
the prisoner on the present indictment, it was incumbent on the prose-
cution to shew that this wife was dead on the 7th of September, 1879,
when the prisoner married Charlotte Georgina Lavers. Counsel for the
prosecution contended that there being no presumption of law that
Ellen Earle was alive on the 7th of September, 1879, when the prisoner
married Charlotte Georgina Lavers (the presumption, if any, after
seven years, being, indeed, the other way), and a prima facie case of
bigamy having been clearly proved by the prosecution on the present
indictment, the onus was thrown upon the prisoner of shewing that
Ellen Earle was alive on the 7th of September, 1879, when the prisoner
married Charlotte Georgina Lavers. I held that the burden of proof
was on the prisoner. No evidence was offered by the prisoner's counsel
that Ellen Earle was alive on the 7th of September, 1879. There was
no evidence that the alleged marriage of the prisoner with Ellen Earle
was declared void or dissolved by any Court of competent jurisdiction.
The prisoner was found guilty. He was then arraigned on that part of
the indictment which charged the previous conviction of felony in June,
1868, and pleaded guilty. I respited judgment. The prisoner remains
in gaol. The question which I reserve for the opinion of the Court for
the consideration of Crown Cases Reserved is: "Whether the prisoner
has been properly convicted of feloniously marrying Edith Maria Miller,
his wife Charlotte Georgina being then alive."
Polanrf, ior the Crown. There was a clear prima facie case made
out Viy the prosecution. The prisoner described himself, when he
married Charlotte Lavers, as a "bachelor," and by his act furnished
evidence against himself that he was then free to marry. A prinia
facie case thus being made, it was for the prisoner to displace it by evi-
dence. The prisoner only shewed that in 1868 his first wife Ellen Earle
was living, a fact which is equally consistent with her being alive or
dead in 1879. Indeed the statute as to bigamy (24 and 25 Vict. c. 100,
SECT. XIX.] Regina v. Wlllshlrc. 4;n
s. 57) sanctions a presumption tluit a person not heard of for seven
years is dead'.
The marriage with Charlotte La vers cannot be held invahd merely
because eleven years before the time of such marriage tlie piisoner had
a wife alive.
[Lord Coleridge, C.J. The learned Common Serjeant did not
leave the question to the jury as to whether Ellen Earle was alive or
dead at the time of the marriage with Charlotte Lavers.
Hawkins, J. Ougtit not the direction to the jury to have been
that it was proved that Ellen Earle was alive in 1868, and that there
was no further evidence upon the point except that the prisoner had in
1879 presented himself to be married as one free to marry, which was,
in effect, a representation by him that he was legally free so to do ; and
would it not then have been for the jur}' to find whether Ellen Earle
had died before the marriage with Charlotte Lavers ?]
It is submitted that, in substance, that was the course adopted.
The facts were all left to the jury, with a direction that under the
circumstances the burden of proving that Ellen Earle was alive in 1879
was on her husband, the prisoner.
Lord Coleridge, C.J. I am of opinion that this conviction cannot
be sustained. The facts are short and are clearly stated in the case.
There was a marriage, admitted to be valid, contracted by the prisoner
in 1864; there was evidence that the woman then married to the
prisoner was alive in 1868. In 1879, the prisoner went through the
ceremony of marriage with another woman. It is said, and I think
rightly, that there is a presumption in favour of the validity of this
latter marriage, but the prisoner shewed that there was a valid marriage
in 1864, and that the woman he then married was alive in 1868. He
thus set up the existence of a life in 1868, which, in the ab.sence of any
evidence to the contrary will be presumed to have continued to 1879.
It is urged, in effect, that the presumption in favour of innocence,
a presumption which goes to establish the validity of the marriage of
1879, rebuts the presumption in favour of the duration of life. It is
sufficient to raise a question of fact for the jury to determine. It was
for the jury to decide whether the man told and acted a falsehood for
the purpose of marrying in 1879, or whether his real wife was then
dead. The Common Serjeant did not leave the question to the jury;
but, on these conflicting presumptions, held that the burden of proof
was on the prisoner, who was bound to adduce other or further evidence
of the existence of his wife in 1879; thus withdrawing from the jury
the determination of the fact from these conflicting presumptions. I
1 Reg. V. Lumh'ij, Law Kep. 1 C. C. E. 196, 199.
432 Select Cases on Criminal Law. [part il
am clearly of opinion that in this the learned Common Serjeant went
beyond the rules of law. The prisoner was only bound to set up the
life ; it was for the prosecution to prove his guilt.
The four other Judges concurred.
Conviction quashed.
SECTION XX.
LIBEL.
[TVte nature of the offence.^
THE QUEEN v. MUNSLOW.
Crown Case Reserved. 1895. L.R. [1895] 1 Q.B. 758.
Case stated for the opinion of the Court by Cave, J.
The defendant was tried at the Warwick Assizes upon an indict-
ment for libel under 6 and 7 Vict. c. 96, s. 5. The indictment contained
three counts, each setting out a separate libel ; the language of each
count, so far as it affected the question of law raised, was identical, and
for the purpose of the case it was only necessary to set out the material
words of the first count, which were as follows : " The jurors for our
lady the Queen upon their oath present that George Munslow un-
lawfully did write and publish a certain defamatory Ubel of and
concerning Henry Truslove, according to the tenor and effect following,
that is to say " (here followed the specific words of the libel complained
of). The prisoner pleaded not guilty ; whereupon his counsel applied
to quash the indictment, on the ground that it did not contain any
averment that he published the libels or any of them ' maliciously,' and
therefore did not sufficiently disclose any offence under the section.
The application was refused, and the case proceeded, and, the defendant
having been convicted on all the counts, his counsel again raised the
same point by way of arrest of judgment. The learned Judge post-
poned sentence, and admitted the defendant to bail pending the hearing
of this case. The question for the opinion of the Court was whether
judgment ought to be arrested on the ground taken by the defendant's
counsel.
Stanger, for the defendant.... Malice must be found by the jury
before they can convict the accused ; and as it is necessary to be proved,
SECT. XX.] The Queen v. Munslow. 433
it must be alleged in the indictment. It Ls true; that it may be proved
by inference from the fact of publication, which affords prin)a, facie
evidence of malice that must be disproved by the accused. But that is
la question of evidence, and does not affect the description of tlie oiience
in the indictment.
* * * * Hr
Lord Russell of Killowen, C.J....The Libel Act, 1843, provides
by section 5 that if any person maliciously publishes a defamatory
libel, he shall, being convicted thereof, be liable to fine or imprisonment
or both, such imprisonment not to exceed one year. The section does
not create a new offence, nor does it purport to give a definition of an
existing offence; it provides for the application, to that which was
already an offence at common law, of the appropriate punishment. The
word " maliciously " was introduced into the section in order to prevent
the section working great injustice. Any one who publishes defamatory
matter of another, tending to damage his reputation or expose him to
contempt and ridicule, is guilty of publishing a defamatory libel ; and
the word " maliciously " was introduced in order to shew that, though
the accused might be prima facie guilty of publishing a defamatory
libel, yet if he could rebut the presumption of malice attached to such
publication he would meet the charge. For example, upon the produc-
tion of the alleged libel, it is for the judge to determine whether it is
capable of being regarded as a libel by the jury ; his function is then
ended, and if the jury determine it to be a libel, then, in the absence of
evidence of the motive for publication, the law attaches to the fact of
publication the inference that the publication was malicious. But the
accused may be able to shew that, though the matter is defamatory, it
was published on a privileged occasion, or he may be able to avail him-
self of the statutory defence that the matter complained of was true,
and that its publication was for the public benefit ; and those classes of
cases were meant to be excluded from the purview of the section by the
use of the word "maliciously."
Here the case went to the jury after the objection was taken ; and
we must assume that the language was capable of bearing the innuendoes
placed on it and was capable of being a libel, that the jury found that
it was in fact a libel, and that there was no lawful excuse, such as
privilege, for its publication. In that state of facts, is the prisoner to
be absolved from the consequences of the verdict, and is the conviction
to be quashed, merely because the word " maliciously " has been omitted
from the indictment ?. . ,
In Rex V. Harvey (2 B. and C. 257) the defendants were indicted
for a libel imputing mental insanity to George the Fourth. The jury
K. 28
434 Select Cases on Criminal Laiv. [part ii.
Ut the trial required to know from the Lord Chief Justice whether
it was necessary that there should be a malicious intention in order to
constitute a libel ; and the answer given was, " The man who publishes
slanderous matter, in its nature calculated to defame and vilify another,*
must be presumed to have intended to do that which the publication is
calculated to bring about, unless he can shew the contrary."... Upon
the motion for a new trial, Holroyd, J., said : "It is not necessary to
aver in such an indictment any direct malice, because the doing of such
an act without any excuse is indictable."
Wills, J It is clear to me that this is a good indictment at
common law. The use of the word "unlawfully" excludes all such
cases as publication on a privileged occasion; and the words "libel"
and "publish" exclude what is called an accidental publication.
(Indeed, as I imderstand the judgment of Lord Esher, MR., in
Emmens v. Pottle, L.R. 6 Q.B.D, 354, an accidental publication is no
publication at all.)... It seems therefore that every case is excluded in
which the law would not attach the epithet " malicious " to the publica-
tion. If that is so, the averment of malice cannot be the less effectively
made because it is made inferentially, if the inference is inevitable.
*****
The other three Judges concurred.
\There may he a libel without the use of words.]
MONSON V. TUSSAUDS LIMITED.
Queen's Bench Division. 1894. L.R. [1894] 1 Q.B. ti71.
Application for an interim injunction to restrain the defendants
from publishing or exhibiting a portrait model of the plaintiff until
the trial of the action, or until further order.... The plaintiff had been
tried in Scotland upon a charge of having murdered a young man
named Hambrough by shooting him with a gun, at a place called
Ardlamont. The defence to the charge was that Hambrough was
killed by the accidental discharge of his own gun. The jury returned
a verdict of " Not proven," Shortly after the trial the defendants in
the first action, who were the proprietors of an exhibition in London,
consisting mainly of wax figures of celebrated and notorious personages,
placed in their exhibition a portrait model of the plaintiff, bearing his
SECT. XX.] Monsori v. Tussauds Limited. 435
name, with a gnu in close proximity thereto described aa his gun. This
figure was exhibited in a room called the Napoleon lloom, No. w, within
a turnstile, at which an extra sixpence was charged for admiss^ion. in
this room there were four other figures. Of these one was a recumbcMit
figure of the Emperor Napoleon I., another that of a Mrs Maybrick,
who had been convicted of murder, another that of one Pigott, a witness
before the Parnell Commission, who had committed suicide to avoid
arrest, and another that of a man named Scott, who was charged with
having been concerned in the alleged murder with which the plaintiff
was charged, but who could not be found. There were some other
objects of interest in the room ; for instance, relics of the Emperor
Napoleon and the Duke of Wellington. From this room access could
be obtained by descending some stairs, without further payment, to
a room known as the " Chamber of Horrors " ; in which were exhibited
figures, the bulk of which represented murderers and malefactors, and
also relics connected with, and models of the scenes of, notorious
murders. In this room there was a representation of the place where
Hambrough's body was found ; described by the words " Ardlamont
Mystery : Scene of the Tragedy."
*****
Collins, J, The law is clearly settled that a person may be
defamed as well by a picture or efiigy as by written or spoken words.
I do not wish to express any opinion on the question whether a private
person can restrain the publication of a portrait or efiigy of himself
which has been obtained without his authority. That is quite a different
question. Applying the standard of a libel action to this application
to restrain the exhibition of an effigy of the plaintiff^, we have to
consider first whether the libel is established, and, secondly, whether it
is such as to call for and justify the interference of the Coui't by an
interim injunction. When the matter comes to be analysed it falls
into a very small compass, and we are relieved in the present case from
difficulties which often exist. The counsel for both the defendants
have told us that the real question is v.'hether the public exhibition of
an effigy of the plaintiff" for money amounts to an injurious imputation
upon him. They both absolutely disclaim any intention to justify any
innuendo or imputation upon the plaintiff", and their case is that no
imputation of any kind is intended by such exhibition. We have to
consider the object for which the figure is exhibited and the manner in
which that object is carried out. The exhibitions are exhibitions for
money of the effigies of famous or infamous people, as the catalogue and
advertisements shew. No effigies of private persons are found there
unless such persons have obtained notoriety or fame. Why, then, is
28—2
436 Select Cases on Criminal Law. [part ii.
the effigy of Monsou placed there, and why is public attention invited
to it ? Is it because he was present at Ardlamont as a casual spectator
when through an unfortunate accident Lieutenant Hambrough was
shoti Can it be suggested that every person who was present at
a grouse drive, for instance, when some member of the party was acci-
dentally shot, would acquire a title to have his effigy placed in these
exhibitions? Is the mere presence of the plaintiff at the tragedy
a ground for the inclusion of his effigy 1 It is clear that it is not. The
only ground for the exhibition of his effigy must be, therefore, that
what happened at Ardlamont was not an accident but a crime, and
that he was in some way or another mixed up with that crime.... Under
these circumstances it seems to me that the inference which any reason-
able jury would draw is inevitable, i.e., that an imputation is made on
the plaintifl; and that the exhibition of the effigy is a Hbel upon him....
Application granted.
[The Court of Appeal concurred in the reasoning of Collins, J.;
but, in consequence of the production of fresh evidence, refused the
injunction.]
[Oral defamation is not a crime.']
THE KING V. BURFORD.
King's Bench. 1669. 1 Ventkis 16; 2 Keble 494.
He was indicted for that he scandalously and contemptuously
uttered and published the following w^ords, viz., "None of the justices
of peace do understand the statutes for the Excise— unless Mr Hunt,
and he understands but Httle of them. No, nor many Parhament-men
do not understand them upon the leading of them."
And it was moved to quash the indictment, for that a man could
not be indicted for speaking such words.
And THE Court was of that opinion. But they said he might have
been bound to his good behaviour.
SECT. XX.] The Queen v. Langley. 437
[Or;il flefamation is not (i crhne.'\
THE QUEEN v. LANGLEY.
Queen's Bench. 1704. 6 Modern 125.
Langley was indicted for these words spoken to the Mayor of
Salisbury, "...You, Mr Mayor, are a rogue and a rascal."...
The Court... agreed that whatever is a breach of the peace is
indictable, as sending a challenge ; but that these words were not
a breach of the peace, but only occasional and tending towards it.
And after great deliberation they adjudged the words were not indict-
able : for it is not as much as said that he was in the exercise of his
office, or a justice of the peace. If indeed they were put in ivritiny,
they would be a libel, punishable either by indictment or action. But
they are but loose unmannerly words ; like those spoke of an Alderman
of HuU — " When he puts on his go^v^l, Satan enters into it " — which
were adjudged not indictable in Kelynge's time (1 Mod. 35). "You
are a forsworn mayor, and have broken your oath," is not indictable
(Style 251). And binding him to his good behaviour is sufficient to
secure the authority of mayors ; [and even it\ must be done instantly
(8 Coke 116, 118).
Holt, C.J., said that words that directly tend to a breach of the
peace may be indictable'. But otherwise to encourage indictments for
words would make them as uncertain as actions for words are.
\^Puhlication to the person libelled suffices in Criminal Law.'\
BARROW V. LEWELLIN.
Star Chamber. 1615. Hobart 62.
Paul Barrow preferred a bill in the Star Chamber against Maurice
Lewellin for writing unto him a despiteful and reproachful letter, which
(for ought that appeared to the Court) was sealed, and delivered to his
own hands and never otherwise published. And it was resolved that
though the plaintiff in this case could not have an action of the case,
because it was not published and therefore could not be to his defama-
tion without his own fault of divulging it,... yet the Star Chamber for
1 [Editor's Note. See Rex v. Phillips (6 East 464). The cases previously cited,
from 1 Mod. and from Style, scarcely went so far as the Court alleges.]
438 8e1ect Cases on Criminal Lan: [part ii
the King doth take knowledge of such cases and punish them.
Whereof the reason is that such quarrellous letters tend to the breach
of the peace and to the stirring of challenges and quarrels. And
therefore the means of such e^'ils, as well as the end, are to be
prevented.
[Publication merely to the person libelled.^
CLUTTERBUCK v. CHAFFERS.
Guildhall N.P. Sittings. 1816. 1 Starkie 471.
This was an action for the publication of a libel.
The witness who was called to prove the publication of the libel
(which was contained in a letter written by the defendant to the
plaintiff) stated, on cross-examination, that the letter had been
delivered to him, folded up, but unsealed ; and that, without reading
it, or allowing any other person to read it, he had delivered it to the
plaintiff himself, as he had been directed.
Lord Ellenborough held, that this did not amount to a publi-
cation which would support an action ; although it would have sustained
an indictment, since a publication to the party himself tends to a
breach of the peace.
Verdict for tlie defendant.
\In Criminal Lcm the truth of the libel is not always a defence.']
THE QUEEN v. JOHN HENRY NEWMAN, D.D.
Queen's Bench. 1853. 1 Ellis and Blackburn 26S, 558.
[This was a criminal information charging the defendant (the late
Cardinal Newman) with composing and publishing a libel upon
Giovanni Giacinto Achilli. The libel contained imputations of seduc-
tion, adultery and other offences, and that Dr Achilli had been
])roliibited from preaching and hearing confessions. The defendant
pleaded (i) jiot guilty, (ii) the truth of the several imputations. The
SECT. XX,] The Queen v. John Henry Neionian, D.D. 439
jury found that only one of the twenty-three criminatory matters
charged in the libel had been proved to their satisfaction. A motion
was made for a new trial on the ground that the verdict was against
the weight of evidence.]
Lord Campbeij., C.J Before the recent statute (6 and 7 Vict.
c. 96, s. 6) the truth of the charges contained in a libel was no defence'
to an indictment or criminal information for publishing it. The truth
could not be given in evidence under a plea of Not guilty; and no
special justification on the ground of truth could be pleaded. It was
even said that " the greater the truth the greater the libel." The
legislature, thinking that such a maxim misapplied brought discredit
on the administration of justice, and that, under certain guards and
modifications, the truth of the charges might advantageously be
inquired into and might be permitted to constitute a complete defence,
passed the statute referred to. But this statute provides that "to
entitle the defendant to give evidence of the truth of such matters
charged as a defence to such indictment or information, it shall be
necessary for the defendant, in pleading to the said indictment or
information, to allege the truth of the said matters charged," "and
further to allege that it was for the public benefit that the said matters
charged should be published"; "to which plea the prosecutor shall be
at liberty to reply generally, denying the whole thereof." Thus it is
quite clear that, when the prosecutor has replied, to such a plea, that
the defendant wrongfully published the libel without the cause alleged,
and issue has been joined upon this replication, the prosecutor is
entitled to a verdict unless the defendant proves, to the satisfaction of
the jury, the truth of all the material allegations in the plea. The only
function allotted to the jury is to say whether the whole plea is proved
or not. If they find that it is, the defendant is acquitted. If they
think that it is not, they are to declare that the defendant wrongfully
published the libel without the cause alleged ; and he is convicted.
The jury are then functi ofiicio; and the legislature did not con-
template that any question would be put to them as to how much of
the plea was proved, if the whole was not proved ; for, without proof
of the whole, a conviction must take place, to be followed by a
sentence. Nevertheless, the legislature wisely thought that, although
under such cir"cumstances sentence must be passed, the just measure of
punishment may materially depend upon the unsuccessful plea of
justification and the evidence given under it. In some cases, the
defendant may maliciously plead such a plea, when he has no sub-
stantial evidence to support it ; or he may try to support it by false
1 [Editor's Note. See the Case de Libellis famosis (5 Coke 125).]
440 Select Cases on Criminal Lair. [part ii.
evidence. On the other hand, he may have had reasonable ground for
believing that he could prove the whole of it ; and he may have
adduced sincere witnesses to substantiate a part of it, while without
default of his own a material part of it is not substantiated by legal
proof. Where there has been a conviction after a plea of justification,
what course is to be followed, so that justice may be done, and a due
measure of punishment meted out according to the real guilt of the
defendant 1 It is quite clear that the legislature refers everything to
the Court alone, after the finding of the jury upon the question
whether the whole plea is proved ; for it has enacted that " if after
such plea the defendant shall be convicted on such indictment or
information it shall be competent to the Court, in pronouncing sentence,
to consider whether the guilt of the defendant is aggravated or miti-
gated by the said plea, and by the evidence given to prove or disprove
the same "
*■***«-
Erle, J In a civil action for libel a plea of "justification"
aflfords a ground for enhancing the damages. So here the plea,
if pleaded without reasonable ground, would have the effect of
aggravation.
*****
The defendant was sentenced to pay a fine of £100, and to be
imprisoned among the misdemeanants of the first class until the fine
should be paid.
[Publiradon in Parliament is priviZegrec? absolutely.^
THE KING V. LORD ABINGDON.
Westminster N.P. Sittings. 1794. 1 Espinasse 225.
This was an information for a libel. The libel was a paragraph
in the public newspapers, stated to be part of a speech delivered by
Lord Abingdon in the House of Lords In giving notice of his
intention to bring in a Bill to regulate the practice of attorneys, he, in
the course of his speech, mentioned his having employed a Mr Sermon
as his attorney; and, after much invective, he charged him with
improper conduct in his profession and pettifogging practices. This
speech his Lordship read in the House from a written paper; which
SECT, XX.] The King v. Lord Abingdon. 441
paper he, at his own expense, sent aud liad printed in several of the
public papers. This trial exhibited the novel spectacle in Westminster
Hall of a peer, unassisted by counsel or attorney, appearing to plead
his own cause.
7K yfz -'^ ^- -:^
Lord Kenyon, C.J., said that had the words in question beeu
spoken in the House of Lords only, and confined to its walls, the
Court would have had no jurisdiction to call his Lordsliip before it to
answer for them as an offence. But in the present case the offence
was the subsequent publication, under his authority and sanction, and
at his expense. A member of Parliament certainly has a right to
publish his speech, but that speech should not be made the vehicle of
slander against any individual.
*****
Guilty. To be imprisoned for three months and fined £100.
[Qualified^ privilege for Fair Comments on any matter of public
concern.]
[See Parmiter v. Coupland, infra p. 444.]
[Qualified privilege where persons hy ivhom and to ivhom the defamation
is ^jublished have a common interest.]
[Publication invited by the person libelled is not criminal.']
THE KING V. HAPvT.
King's Bench. 1762. 1 Wsi. Blackstone 386.
Motion for a new trial. It appeared that Mary Jerom, the prose-
cutrix,, was a quaker; but, being less rigid than the rest of her sect,
the brethren, according to their usual discipline, first admonished her
1 It is now established that this privilege is only Qualified. See McQuiie v.
Western Morning Neivs Co., L.R. [L903] 2 K. B. 100.
442 Select Cases on Criminal Law. [part ii.
for fi-equenting balls and concerts; then sent deputies to her; and
lastly expelled her ; and entered as a reason in their books, " For not
practising the duty of self-denial." This was signed by the defendant,
their clerk. The prosecuti'ix sent her maid for a copy of the entry ;
which was delivered to her by the defendant, and was the only act of
publication proved. She thereupon moved the Court for an information
for a libel, which was denied : whereupon she preferred an indictment,
which was found at Nottingham Sessions, and removed into B. R. by
certiorari, and tried at last Nottingham Assizes before INIr Justice Clive,
who left it to the jury, and they brought in the defendant guilty. It
was argued to be irregular to leave it at all to the jury, upon such an
evidence only of publication; 5 Mod. 167. But as the Judge was dis-
satisfied with the verdict, the whole transaction being merely a piece of
discipline, (in which the Court strongly concurred), they for that reason
granted the new trial in the first instance, without any rule to shew
cause; Serjeant Hewit having attended to watch the motion on the
part of the prosecutrix, and confessed the dissatisfaction of Mr Justice
Clive at the verdict.
^Qualified privilege for reports of judicial proceedings.]
USILL V. HALES.
Common Pleas Division. 1878. L.R. 3 CRD. 319.
Action for libel published in the Daily News. The publication
complained of consisted of a report of an application, made in public to
a pohce-magistrate in London, for a summons against the plaintiff
under the following circumstances : — The persons by whom the applica-
tion to the magistrate was made were respectively ciAdl engineers or
surveyors who had been employed under the plaintiff, a civil engineer,
in making surveys, ifec, for a projected railway in Ireland. The appli-
cants having heard that the plaintiff had been paid by the promoters
for his services, and conceiving that he had impropei'ly withheld from
them the money which was due to them for theirs, made an ex parte
application under the Employers and Workmen Act (38 and 39 Vict.
c. 90). The magistrate, after hearing the statement of the parties, came
to the conclusion that he had no jurisdiction to entertain the matter,
and declined to grant the summonses. A report of the proceeding
SECT. XX.] JJsill Y. Hales. 443
appeared in the newspaper in question on the following morning, and
it was in these terms, —
"Three gentlemen, civil engineers, were among the applicants to the
magistrate yesterday, and they applied for criminal process against
Mr Usill, a civil engineer, of Great Queen Street, Westminster. The
spokesman stated that they had been engaged in the survey of an Irish
railway by Mr Usill, and had not been paid what they had earned in
their various capacities, although from time to time they had received
small sums on account ; and, as the person complained of had been
paid, they considered that he had been guilty of a criminal offence in
withholding their money. Mr Woolrych said it was a matter of con-
tract between the parties ; and, although, on the face of the application,
they had been badly treated, he must refer them to the county court."
The cause was tried before Cockburn, C.J., at Westminster, on the
15th of November, 1877. The learned Judge told the jury that the
only question for their consideration was whether or not the publication
complained of was a fair and impartial report of what took place before
the magistrate ; and that, if they found that it was so, the publication
was privileged.
The jury found that it was a fair report of what occurred, and
accordingly returned a verdict for the defendant.
Ballantine, Serjt, moved for a new trial, contending that the publi-
cation being a report of an ex parte application made to a functionary
who had no jurisdiction to entertain it, and made against one who had
no means of answering the charges made against him, the privileges
usually accorded to the publication of proceedings in a Court of justice
did not attach to it.
******
Lopes, J. In this case three men who believed themselves aggrieved
by the conduct of the plaintiff in respect of the payment of their wages,
applied to a magistrate in open Court for a summons under the Em-
ployers and Workmen Act. The magistrate refused the application,
considering it a matter for a civil, and not for a criminal. Court. The
defendant afterwards published a rei^ort, which the jury have found was
a fair repoi't of what occurred.
On principles of public convenience, the ordinary rule is that no
action can be maintained in respect of a fair and impartial report of
a judicial proceeding, though the report contain matter of a defamatory
kind and injurious to individuals.
It was urged that the matter in respect of which the application
was made was not within the jurisdiction of the magistrate. But the
cases are clear to shew that want of jurisdiction will not take away the
444 Select Cases on Criminal Law. [part ii.
privilege, if it is maintainable on other grounds. Nor do I think the
privilege is contined to the superior Courts : it is not the tribunal, but
the nature of the alleged judicial proceeding, which must be looked at.
The point mainly relied on by the plaintiff was, that the application
to the magistrate was ex parte, and as such could not be privileged.
Had the matter before the magistrate been in the nature of a pre-
liminary inquiry, and if the ultimate judicial determination was to
remain in abeyance until a further investigation, I should have thought
there was authority at any rate for the plaintiff's contention ; though
how far those authorities might be followed in the present day I think
doubtful'. But the matter of the application v7-a% finally disposed of by
the magistrate ; and I can find no case where a fair report of a judicial
proceeding ^na^Z?/ dealing with the matter in open Court has been held
libellous. There are authorities which, until they are carefully examined,
would seem to support the contention that an ex parte proceeding in
Court is not privileged. So far as I can ascertain, these are all cases
where the proceeding was preliminary, and where there was no final
determination at the time of the alleged libellous report.
Rule discharged.
[Respective functions of jury and Judge.]
PARMITER V. COUPLAND AND ANOTHER.
Exchequer. 1840. 6 Meeson and Welsby 105.
This was an action on the case for a series of libels published of the
plaintiff, the late mayor of the borough of Winchester, in the Hamp-
shire Advertiser new.spaper, between the 17th of November, 1838, and
the 2nd of March, 1839, imputing to him partial and corrupt conduct
and ignorance of his duties, as mayor and justice of the peace for the
borough. The defendants pleaded not guilty. At the trial before
Coleridge, J., at the last Winchester Assizes, the learned Judge, in the
course of his summing up, stated to the jury that there was a difference
with regard to censures on public and on private persons ; that the
character of persons acting in a j)ublic cajiacity was to a certain extent
^ [Editor's Notk.] They are ovenuled by Kimber \. Press Association, L. R.
[1893] 1 Q. B. 65, where privilege was conceded to the report of an ex parte aiophca-
tion (for a summons for perjury) though the appUcation had not been disposed of
but only adjourned.
SECT. XX.] Parmiter v. Coupland and Another. 445
public property, and tlieir conduct might be more freely commented on
than that of other persons : and having told the jury what, in point of
law, constituted a libel, he left it to them to say whether the publica-
tions in question were calculated to be injurious to the character of the
plaintiff. The jury having found a verdict for the defendants, a motion
was made for a new trial.
* * * * *
Parke, B. I think there was no misdirection on the part of the
learned Judge. One of the grounds upon which this rule was obtained
was, that the learned Judge ought to have told the jury that the terms
of these papers were libellous, and not to have left that as a question
of fact for them to determine. But it has been the course for a long
time for a judge, in cases of libel, as in other cases of a criminal nature,
first to give a legal definition of the ofience, and then to leave it to the
jury to say whether the facts necessary to constitute that ofience are
proved to their satisfaction ; and that, whether the libel is the subject
of a criminal prosecution, or civil action. A publication, without justifi-
cation or lawful excuse, which is calculated to injure the reputation of
another, by exposing him to hatred, contempt, or ridicule, is a libel.
Whether the particular publication, the subject of inquiry, is of that
character, and would be likely to produce that effect, is a question upon
which a jury are to exercise their judgment, and pronounce an opinion,
as a question of fact. The Judge, as a matter of advice to them in
deciding that question, might have given his own opinion as to the
nature of the publication ; but was not bound to do so as a matter of
law. Mr Fox's Libel Bill was a declaratory Act, and put prosecutions
for libel on the same footing as other criminal cases (32 Geo. III.
c. 60).
I also think that there was no misdirection in the other part of the
learned Judge's summing up, to which an objection was raised. There
is a difference between publications relating to public and private indi-
viduals. Every subject has a right to comment on those acts of public
men which concern him as a subject of the realm, if he do not make his
commentary a cloak for malice and slander. But any imputation of
wicked or corrupt motives is unquestionably libellous ; and such appears
to be the nature of the publications here. I do not find that the
learned Judge stated otherwise : we cannot therefore grant a new trial
as for a misdirection.
PAET III.
MODES OF LEGAL PROOF.
SECTION I.
PRESUMPTIONS.
[(A) There is so strong a presumption against the commission of any
Crime, that it must he proved beyond reasonable douht.^
REGINA V. FREDERICK GEORGE MANNING AND
MARIA MANNING.
Central Criminal Court. 1849. "The Times" for Oct. 27, 1849.
[The two prisoners were indicted, before Pollock, L.C.B., Maule, J.,
and Cresswell, J., for the murder of Patrick J. O'Connor, a Customs
Officer, who was the paramour of the female prisoner. The husband
was charged as principal in the first degree, and the wife as aider
and abettor. The crime was one of such cold-blooded treachery as
to be, as the Lord Chief Baron said, "perhaps one of the most un-
exampled ever recorded in the history of this country." On this
account, and partly also because Mrs Manning (the Mademoiselle
Hortense of Dickens' Bleak House) had been a lady's maid in the
Duke of Sutherland's family, the case aroused extraordinary interest.
At the prisoner's house, where O'Connor had gone to dine as a guest,
he was killed by many blows and his body was buried under the
kitchen floor. Both the prisoners then fled from London.
Wilkins, Serjt., for the male prisoner, urged that the wife had
alone committed the murder; her object being robbery.
Ballantine, for the female prisoner, urged that the crime had been
committed by the male prisoner alone, in a paroxysm of jealousy.]
Pollock, L.C.B., in the course of summing up to the jury, said: —
There can be no doubt that Patrick O'Connor was murdered. It has
not been suggested by either of the learned counsel for the prisoners
that anybody out of the house in which the body was found could
SECT. I.] Regina v. F. G. and Maria Mannhuf. 447
have committed the murder and brought the body and deposited it in
the kitchen. There can be no doubt, then, that very grave suspicion
must exist against the persons living in the house. The two prisoners
appear by different counsel ; and each attempts to throw the blame of
this dreadful crime upon the other. You, however, must come to a
conclusion as to where the guilt rests, and whether it belongs to one
or the other or to both.
If you think that one is guilty, and the other innocent of partici-
pation in the mui'der, but cannot possibly decide which is the guilty
party, you may be reduced to the alternative of returning a verdict of
*Not guilty' as regards both.
Yet, if you consider that one of them was guilty, it will be for you
to consider whether, seeing that the murder was committed in the
house where both the prisoners lived, it could possibly have been
undertaken by the one without the knowledge of the other Witli
respect to any question of doubt, your duty is, calmly and gravely to
investigate the case, and to see what is the conclusion impressed upon
your minds as men of the world, as men of sense, as men of solid
justice. If the conclusion to which you are conducted be that there is
that degree of certainty in the case that you would act upon in your
own grave and important concerns, that is the degree of certainty
which the law requires, and which will justify you in returning a
verdict of guilty against one or both of the prisoners. It is not neces-
sary that a crime should be established beyond the possibility of doubt.
There are crimes committed in darkness and secrecy, that can only be
traced and brought to light by a comparison of circumstances, which
press upon the mind more and more as they are increased in number.
There are doubts involved, more or less, in every human transaction.
We are frequently mistaken as to what we suppose we have seen —
still oftener as to what we suppose we have heard. In all the trans-
actions of life there is a certain degree of doubt mixed up. But these
are not the doubts upon which you act in deciding upon a case so
important as this ; important for the public, on the one hand, and for
the prisoners on the other. I doubt not that you will discharge your
duty. You will consider that you have on the one hand a duty to the
public — namely, to take care that the guilty shall not escape; and that,
on the other, you have a duty to the prisoners — to take care that they
shall not be convicted upon any mere surmises or suspicion, upon
rash or light grounds, but only on grave and solid reasons presenting
themselves to your understandings and leading you to a satisfactory
conclusion that one, or that both, must be guilty of the crime.
[Both prisoners were convicted and executed.]
448 Select Cases on CHminal Law. [part iil
[Hence the Crown must not only prove the crime, but also identify
the criininalj]
THE KING V. RICHARDSON AND ANOTHER.
Old Bailey Sessions. 1785. Leach 387.
At the Old Bailey, in June Session 1785, Daniel Richardson and
Samuel Grenow were indicted before Mr Justice Bdlleb for a highway
robbery on John Billings.
It appeared in evidence that the two prisoners accosted the prose-
cutor as he was walking along the street, by asking him, in a peremptory
manner, what money he had in his pocket 1 Upon his replying that he
had only two-pence half-penny, one of the prisoners immediately said
to the other, " If he really has no more do not take that," and turned
as if with an intention to go away; but the other prisoner stopped the
prosecutor, and robbed him of the two-pence half-penny, which was all
the money he had about him. But the prosecutor could not ascertain
which of them it was that had used this expression, nor which of them
had taken the half -pence from his pocket.
The Court. The point of law goes to the acquittal of both the
prisoners. For if two men assault another with intent to rob him, and
one of them, before any demand of money or offer to take it be made,
repent of what he is doing, and desist from the prosecution of such
intent, he cannot be involved in the guilt of his companion who after-
wards takes the money; for he changed his evil intention before the
act, which completes the offence, was committed. That prisoner there-
fore, whichever of the two it was who thus desisted, cannot be guilty
of the present charge ; and the prosecutor cannot ascertain who it was
that took the property. One of them is certainly guilt}^, but which of
them personally does not appear. It is like the Ipswich case, where
live men were indicted for murder ; and it appeared, on a .sj)ecial
verdict, that it was murder in one, but not in the other four ; but it
did not appear which of the five had given the blow Avhich caused the
death. And the Court thereupon said that, as the man could not be
clearly and positively ascertained, all of them must be discharged.
The two prisoners were accordingly acquitted.
[See also Reo. v. Manning, p. 446 *«p-a.]
SECT. I.] Anonymous. 449
\^Hence in so grav. a crime as Mv.rder, mere circumstantial
evidence is ttsually insufficient to prove the fact of Death.]
ANONYMOUS.
Stafford Assizes. 16 — . Hale's Pleas of the Crown cap. xxxix.
I would never convict any person of murder or manslaughter unless
the fact were proved to be done, or at the least the body found dead;
for the sake of two cases. One is mentioned by my Lord Coke. [Infra,
p. 449.] In the other, that happened in my remembrance, in Stafford-
shire, A. was long missing; and upon strong presumptions B. was
supposed to have murdered him, and to have consumed him to ashes in
an oven, that he should not be found. Thereupon B. was indicted of
murder, and convicted and executed. And within one year after, A.
returned ; having indeed been sent beyond sea by B. against his will.
So, though B. justly deser^'ed death, yet he was really not guilty of
that offence for which he suffered '.
ANONYMOUS.
"Warwick Assizes. 1610. Coke's Third Institute cap. 104.
In the county of Warwick there were two brethren. The one,
having issue a daughter, and being seised of lands in fee, devised the
government of his daughter and his lands, until she came to her age of
sixteen years, to his brother ; and died. The uncle brought up his niece
very well, both at her book and needle, Ac, and she was about eight or
nine years of age. Her uncle for some offence correcting her, she was
heard to say, " Oh, good uncle, kill me not." After which time the
child, after much inquiry, could not be heard of. Whereupon the uncle,
being suspected of the murder of her, the rather for that he was lier
next heir, was upon examination (anno 8 Jac. regis) committed to the
gaol for suspicion of murder, and was adnionislied by the Justices of
Assize to find out the child, and thereupon bailed until the next
Assizes, Against which time, for that he could not find her, and feared
1 [Editor's Note. Sir Matthew Hale proceeds to add that, in his opinion,
witchcraft is one of the two crimes that give the greatest ditlieulty in point of
evidence, inasmuch as "many times persons are really guilty of it, yet sucli an
evidence as is satisfactory to prove it can hardly be found."]
K. 29
450 Select Cases on Criminal Laiv. [part hi.
what would fall out against him, he took another child as like to her
both in person and years as he could find, and apparelled her like unto
the true child, and brought her to the next Assizes. . But, upon view and
examination, she was found not to be the true child ; and upon these
presumptions he was indicted and found guilty, had judgment, and was
hant^ed. But the truth of the case was, that the child, being beaten
over night, the next morning when she should go to school, ran away
into the next county : and, being well educated, was received and enter-
tained of a stranger. And when she was sixteen years old, at what time
she should come to her land, she came to demand it, and was directly
proved to be the true child.
[ What is not sufficient evidence to rebut this presumption of innocence.^
BEGIN A V. WALKER AND MORROD.
Crown Case Reserved. 1854. Dearsly 280.
The prisoners were indicted at the East Riding of Yorkshire
Sessions, held at Beverley on tlie 3rd of January, 1854. for stealing six
pounds weight of brass from Mr Crosskill ; with a count in the indict-
ment for receiving.
It was proved at the trial that Walker had worked for Mr Crosskill
and borne a good character for five or six years. That on the 9th of
November he left Mr Crosskill 's employment. That on the 9th of
November,^ Morrod, who was brother to Walker's wife, offered for sale
in Beverley six pounds weight of brass (being that charged in the
indictment as being stolen from Mr Crosskill's) and a quantity of white
metal similar to block tin. That the brass (wliich was of a peculiar
kind, and was in ingots cast in moulds belonging to Mr Crosskill) was
usually left in a shop the door of which opened on to the road leading
into Mr Crosskill's works; to which workmen on the premises might
have access, the door not being kept locked. That block tin and white
metal were only kept in the brass foundry within this outer shop, with
a door between them. That Thomas Morrod was employed for one
^\■eek on Mr Crosskill's premises in September last as a bricklayer's
labourer, and that in such employment he would have to pass along the
i-oad into Mr Crosskill's woiks, and might have access to the outer shop
(where the metal called brass was kept), but had never been seen there ;
that he never had been seen in the brass foundry, and could not have
gone in there without some of the workmen seeing him. That Walker
SECT. I.] Regina v. WaVcer and Morrod. 45]
was employed as an iron moulder at works on the other side of
Mr Crosskill's yard. That he fre(|uently went into the brass foundry to
borrow tools, and had at. times borrowed white metal, saying tliat he
wanted it for purposes of casting. Walker was apprehended in
November, at "Wakefield. Morrod, when he sold the brass on the
9th of November, stated to the person to whom he sold it that Walker's
wife had given it to him to sell, and that Walker had that day left her
and gone into the West Riding ; which he also stated to the jury in his
defence, telling them that he did not know but that it was honestly
obtained. It was proved that he had given his name and address to
the person to whom he sold the brass, and immediately he heard that
it had been stolen from Mr Crosskill had gone to see him about it.
The Chairman told the jury they were not to take what Morrod
said as to the way he obtained the brass as evidence against Walker,
drawing their attention to the fact that it was easy for a man who had
himself stolen it to invent such a story, and that it was therefore not
fair to take such into account as evidence against the other prisoner.
The jury believing that Walker had stolen the metal, and that
Morrod had received it not knowing it to have been stolon, found
Walker guilty of stealing, and acquitted Morrod.
Mr Dearsly, on behalf of Walker, objected that there was no
evidence whatever to go to a jury of Walker having stolen the brass,
and requested the Chairman to reserve a case for the consideration of
the Court of Criminal Appeal, and the case was therefore reserved
upon this point. The jury were probably partly influenced in their
finding by the facts Avhich it was omitted to prove distinctly by the
prosecution, but which were nevertheless apparent in the case, that
Walker and his wife and her brother Morrod lived in one house together,
and that Walker had left Beverley on the 9th of November, and also by
the general demeanour of the prisoners. It is also impossible that they
should not give some weight to what Morrod had said at diflereTit
times as against Walker, believing as they did that he had sold the
metal innocently, and was speaking the truth for himself.
C. W. Strickland,
Chairman.
This case was argued on the 28th of January, 1854, before Jehvis,
C.J., Maule, J., WiGHTMAN, J., WiLLiAMS, J., and Platt, B.
Dearsly for the prisoner. This conviction is wrong. There was not
a particle of evidence to be left to the jury.
Maule, J. Not a scintilla.
Jeevis, C.J. This conviction must be quashed.
Conviction quashed.
29—2
452 Select Cases on Criminal Laiv. [part iiu
[Not sufficient evidence to rebut tJiis presumption^]
REGINA V. SLINGSBY.
Kent Assizes. 1864. 4 Foster and Finlason G1.
The prisoner was indicted for that she, on the 7th of January, 1864,
a certain cheque, drawn by one Langley for the sum of £18, feloniously
did steal. She was also indicted for that she, on the 7th of January,
feloniously forged and altered an indorsement upon the cheque with
intent to defraud Langley. But she was first arraigned on the indict-
ment for larceny ; and pleaded not guilty.
The prisoner lived as a general servant with a lady named Carley.
On the 5th of January, 1864, Langley, who owed the mistress money,
sent her his cheque for £18, enclosed in a letter and drawn to her
order. The lady was then unwell On the 7th of January the cheque
was cashed by the prisoner, with an indorsement on it of her mistress's
name, which her mistress's relatives believed not to be hers. On the
9th her mistress rather suddenly died. Being then asked if she had
received any letters for her mistress during her illness, she said she had
not. It turned out that she had, after cashing the cheque, paid £14 to
a tradesman, to whom her mistress owed that sum for a bill, payment
of which he had pressed for and been promised. The prisoner being
taxed with this, as proof that she must have received the cheque, still
denied it, and had retained and never accounted for the surplus. But
there was no count for stealing the £4. Nor was there opened any
evidence of the forgery, and none was given beyond the belief above
mentioned.
Pollock, C.B. (to the jury). You cannot properly convict the
prisoner of stealing the cheque. Indeed, considering how short the
interval which elapsed between the cashing of it and her mistress's
death, it is doubtful whether you could convict her of stealing the £4,
the surplus of the proceeds ; but there is no count for that. -Neither is
there any evidence of the forgery of the. indorsement ; and the cheque
eould not have been paid without an indorsement which appears upon
it, and wliich, for anything that has been proved, may have been
genuine. Perhap.s, in the absence of any proof of a forgery, the
prisoner is entitled to have it presumed that it is genuine. At all
events it cannot be taken that it is not so ; and if it were so, then that,
coupled with the undoubted fact that the prisoner applied almost all
the proceeds to the payment of her mistress's debt, would negative any
felony as to the cheque. And, on the other hand, the appropriation of
the proceeds to what must be deemed to have been a puipuse of the
SECT, i] Regina v. Slimjshy. 453
mistress, and may fairly be presumed to have been directed by her,
tends strongly to show that the cheque was entrusted to the prisoner
and not feloniously taken.
Not guilty.
\But the evidence given by Crown may suffice to reverse the presumption
and throw 0)i prisoner the necessity of an explanation.!
[See Regina v. Frost, supra p. 374.]
[Wliat is sufficient evidence to rebut the presumption of innocence.]
REGINA V. HOBSON.
Crown Case Reserved. 1854. Dearsly 400.
The prisoner, George Hobson, was tried at the West Riding Quarter
Sessions, held at Rotherham, on the 30th of June, 1854, upon a charge
of feloniously receiving from William Levick, one watch, one hat, and
one shilling, the property of James Birkenshaw, and was found guilty
atid sentenced to be imprisoned and kept to hard labour in the House
of Correction at Wakefield for twelve calendar months. William
Levick had previously at the same Sessions pleaded guilty to the theft.
Upon the trial William Laughton, a policeman, proved that on the 8th
day of June, 1854, he went to the prisoner's house in consequence of
something he had heard from William Levick, the party charged in the
indictment as the thief — that Levick took witness there — that witness
asked the prisoner, who was in bed, if Levick had brought a hat there
— that the prisoner said "Yes " — that the prisoner then got out of bed
and took the hat out of a box in a corner of the room, and gave the hat
to witness — that witness asked the prisoner if he knew anything about
the watch — that the prisoner said he did not — that witness went the
next day to the prisoner's house and took him into custody — that
witness told the prisoner that he (witness) would most likely trace the
454 Select Cases on Crlmiwd Law. [part hi.
watch and who had it — that when witness and the prisoner got outside
the house, the prisoner said he did not like to say anything about tlie
watch before the folks in tlie house, but he knew where it was, that it
was planted, that it was at Mr Wastenholmes' — that witness and the
prisoner went to ]Mr Wastenholmes', but could not find a watch there —
that the prisoner then called for a boy and asked him to get the watch
— that the watch was afterwards brought by the boy to the prisoner,
who gave it to witness. On cross-examination, the witness said that
the house where the prisoner lived was a lodging-house — that witness
did not know whether the thief (Levick) lived there or not, or whether
or not the prisoner had exclusive possession of the room where the hat
was found — that witness did not notice how many beds were in the
room where the hat was found — that when the prisoner said he knew
nothing about the watch, there were several people in the house stand-
ing round him. It was objected by the prisoner's counsel that there
was no evidence to go to the jury 3 first, as to the hat, because there
was not sufficient evidence of the prisoner's possession of it, the house
where the hat was found being a lodging-house, and the prisoner
having no exclusive possession of the room ; secondly, as to the watch,
because the pi'isoner was not shewn to have had possession of it — all
the evidence was, that the prisoner knew where the watch was. The
Court overruled the objection, being of opinion that there was sufficient
evidence to go to the jury, but granted a case for the opinion of the
Judges.
This case was considered on the 11th of November, 1854-, by Jebvis,
C.J., Alderson, B., Coleridge, J., Martin, B., and Chowder, J.
No counsel appeared either for the Crown or for the prisoner.
Jervis, C.J. We all think that in this case there was evidence to
go to the jury.
Conviction affirmed.
\B\it in some statutory offences, the burden of disproving the
Mens Rea is thrown on the accused.]
[E.g., exceptional cases of a master's being prima facie liable for a
servant's criminal acts even thouyk unauthorizedA
COPPEN V. MOORE.
Queen's Bench Division. 1898. L.R. [1898.] 2 Q.B.D. 306.
Case stated by justices of Richmond, in the county of Surrey, for
the opinion of a Divisional Court.
SECT. I.] Goppen v. Moore. 45.3
Lord Russell of Killowen, C.J. This is a case stated by justices,
who summarily convicted the appellant of an offence against the
Merchandise Marks Act, 1887 (50 and 51 Vict. c. 28) \
The appellant was charged under s. 2, sub-s. 2, with having sold
goods to which a "false trade description" was applied. The facts
were as follows : —
On September 4, 1897, the respondent, at the London Supply
Stores, 42, George Street, Richmond (one of several places of business
of the appellant), asked the salesman at the door of the shop for a
small English ham. The salesman pointed to a number of hams on
a shelf, and said they were Scotch hams. In fact they were long-cut
American hams. The salesman stated the price, %\d. per lb., and
the respondent said he would take one, which was then produced.
The salesman then passed the ham selected through the open window
to a shop assistant inside, saying, " Weigh up Scotch ham, 8ic?." The
respondent, before paying, asked the assistant to make him out an
account and put on it " Scotch ham," as he had bought it as such.
The assistant at first handed the respondent an invoice without the
word " Scotch " on it. The respondent did not accept it so written,
but told the assistant to put the word "Scotch," "as he had bought it
as such." The assistant then did so, and handed the invoice to the
respondent, who then paid the price, 5s. ^\d. Upon this being done,
the respondent asked the assistant whether he still said it was a Scotch
ham whereupon the assistant admitted it was not, but was an American
ham. The salesman, in like manner, was asked, and he at once ad-
mitted it was an American ham.
On the part of the appellant evidence was given that he had
* By s. 2, sub-s. 2, of the Act, " Every person who sells, or exposes for, or has
in his possession for, sale, or any purpose of trade or manufacture, any goods or
things to which any forged trade-mark or false trade description is applied, or to
which any trade-mark or mark so nearly resembling a trade-mark as to be
calculated to deceive is falsely applied, as the case may be, shall, unless he
proves —
(a) That having taken all reasonable precautions against committing an offence
against this Act, he had at the time of the commission of the alleged offence no
reason to suspect the genuineness of the trade-mark, mark, or trade description ;
and
(6) That on demand made by or on behalf of the prosecutor he pave all the
information in his power with respect to the persons from whom he obtained such
goods or things ; or
(c) That otherwise he had acted innocently;
be guilty of an offence against this Act. "
456 Select Cases on Criminal Law. [part hi.
sent out a notice to all liis branch places of business, including that in
question, in the following terms : —
"February 25th, 1897.
"Most important.
"Please instruct your assistants most explicitly that the hams
described in list as breakfast hams must not be sold under any specific
name of place or origin. That is to say, they must not be described as
'Bristol,' 'Bath,' 'Wiltshire,' or any such title, but simply as breakfast
hams. Please sign and return.
" H. W. Coppen."
The ham in question would come within the category of breakfast
hams. Evidence was given that the terms of this notice were communi-
cated to the manager and assistants, and the appellant stated that he had
no reason to believe that his instructions were not being carried out....
It was admitted that the description " Scotch ham " was a trade
description, and it is found that it was applied to the ham sold by the
appellant's employees, and it was admittedly false. It was not con-
tended that it was not material. In these circumstances it is clear
that an ofience against the Act was committed by the salesman and
by the assistant of the appellant. But the question which the Court
is now called upon to decide is whether the appellant also is not
personally liable to be convicted. This was the question argued.
The appellant's contention was that the charge here preferred
was a criminal charge, and that the general principle of law applied,
"Nemo reus est nisi mens sit rea." There is no doubt that this is the
general rule, but it is subject to exceptions, and the question here is
whether the present case falls within the rule or within the exception.
Apart from statute, exceptions have been engrafted upon the rule :
for example, in the case of Reg. v. Stephens^ the defendant was held
liable on an indictment for obstructing navigation by throwing rubbish
into a river from a quarry owned by him but managed by his son,
although it was proved that the men employed at the quarry had been
by order prohibited from doing the acts complained of. No doubt in
that case the fact that the proceedings were only in form criminal was
adverted to by the judges who decided it, but the fact remains that
the defendant was criminally indicted. But by far the greater number
of exceptions engrafted upon the general rule are cases in which it has
been decided that by various statutes criminal responsibility has been
put upon masters for the acts of their servants. Amongst such cases
is MuUins v. Collins ", where a licensed victualler was convicted of an
1 L. K. 1 (j. U. 702. 2 X,. K. >j ^j. ]3. 292.
SECT. 1.] Coppeti V. Moore. -ioT
offence under s. 16 of the Licensing Act, 1872, for supplying liquor to
a constable on duty, although this was done by his servant without the
knowledge of the master. Again, in Bond v, Evans ', a licensed
victualler was convicted of an offence against s. 1 7 of the same Act, •
where gaming had been allowed in the licensed premises by the servant
in charge of the premises although without the knowledge of his
master. The decisions in these and in other like cases were based
upon the construction of the statute in question. The Court in fact
came to the conclusion that, having regard to the language, scope, and
objects of those Aces, the legislature intended to fix criminal responsi-
bility upon the master for acts done by his servant in the course of his
employment, although such acts were not authorized by the master,
and might even have been expressly prohibited by him.
The question, then, in this case, comes to be narrowed to the
simple point, whether upon the true construction of the statute here
in question the master was intended to be made criminally responsible
for acts done by his servants in contravention of the Act, where such
acts wei'e done, as in this case, within the scope or in the course of
their employment. In our ju-dgnient it was clearly the intention of
the legislature to make the master criminally liable for such acts,
unless he was able to rebut the prima facie presumption of guilt by
one or other of the methods pointed out in the Act. Take tlie facts
here, and apply the Act to them. To begin with, it cannot be doubted
that the appellant sold the ham in question, although the transaction
was carried out by his servants. In other words, he was the seller,
although not the actual salesman. It is clear also, as already stated,
that the ham was sold with a "false trade description," which was
material. If so, there is evidence establishing a prima facie case of an
offence against the Act having been committed by the appellant. But
it is only a prima facie case. The burden of proof is shifted upon tlie
appellant —
In the present case there was ample evidence to justify the con-
clusion of the magistrates that the appellant was prima facie guilty of
the offence charged, and that prima facie case has not been met in
the manner required by the Act
In answer, then, to the question which alone is put to us, namely,
whether upon the facts stated the decision of the magistrates convict-
ing the appellant was in point of law correct, our answer is tliat in our
judgment it was. When the scope and object of the Act are borne in
mind, any other conclusion would to a large extent render the Act
ineffective for its avowed purposes. The circumstances of tlie present
i 21 Q. B. D. 249.
458 Select Cases on Crhninal L<(tc. [vxrt in.
case afford a convenient illustration of this. The appellant, under tlia
style of the "London Supply Stores," carries on an extensive business
as grocer and provision dealer, having, it appears, six shops, or branch
establishments, and having also a wholesale warehouse. It is obvious
that, if sales with false trade descriptions c<_'uld be carried out in these
establishments with impunity so far as the principal is concerned, the
Act would to a large extent be nugatory. We conceive the effect of
the Act to be to make the master or principal liable criminally (as he
is already, by law, civilly) for the acts of his agents and servants in all
cases within the sections with which we are dealing where the conduct
constituting the offence was pursued by such servants and agents
within the scope or in the course of their employment, subject to this :
that the master or principal may be relieved from criminal responsi-
bility where he can prove that he had acted in good faith and had
done all that it was reasonably possible to do to prevent the com-
mission by his agents and servants of oti'ences against the Act. The
result, therefore, is that the conviction will be affirmed, and with costs.
We wish to add that the form in which this case is stated is not
satisfactory. It does not throughout clearly distinguish between what
was merely evidence and what was proved to the satisfaction of the
magistrates. It is important that it should be borne in mind that
when a case is submitted to the Court it ought to state clearly what
the facts proved were, and not merely what tlie evidence was.
[Sir F. H. Jeune, p., Chitty, L.J., Wright, Darling, and
CuANNELL, JJ., concurred.]
Conviction affirmed.
[(B) There is a presumption against tlie commission of an
immoral act.]
[Hence cohabitation is evidence of marriage^
DOE dem. FLEMING v. FLEMING.
Common Pleas. 1827. 4 Bingham 266.
The lessor of the plaintiff claimed the premises sought to be re-
covered in this ejectment as heir at law to his brother, the person last
seised.
His father was still alive, and the only evidence of the lessor of the
plaintiffs having been bom in lawful wedlock was the reputation of
his parents having Lived together as husband and wife.
SECT. I.] Doe dem. Flcining v. Fleming. 459
A verdict having been found for the plaiiitili' at the trial before
13est, C.J., at Middlesex sittings after last term,
Wilde, Serjt., moved for a new trial, on the ground tliat though
reputation was evidence of marriage in ordinary cases, yet where the
plaintiff was to recover as heir at law, where his being such was the
sole question to be tried, and his father was still alive, direct evidence
of the marriage ought to have been furnished.
Park, J, The general rule is, that reputation is .sudicient evidence
of marriage, and a party who seeks to impugn a principle so well
established, ought, at least, to furnish cases in support of his position ;
as we have heard none, I see no reason for disturbing the verdict.
Best, C.J. The rule has never been doubted. It appeared on the
trial that the mother of the lessor of the plaintiff was received into
society as a respectable woman, and under such circumstances improper
■conduct ought not to be presumed.
Rule refused.
[But this presumption ac/ainst moral wrong-doing is counterbalanced
by the stronger presumption against criminal wrong -doing. '^
MORRIS V. MILLER.
King's Bench. 1767. 1 W. Blackstoxe 632.
Action for criminal conversation with the plaintiff''s wife. The
only proof of the marriage was by reputation and cohabitation of the
parties.
Per Lord Mansfield, C.J., and tot. Cur. In these actions there
must be proof of a marriage in fact ; as contrasted to cohabitation and
reputation of marriage arising from thence. Perhaps there need not
be strict proof from the register, or by a person present, but strong
evidence must be had of the fact: as by a person present at the wedding
dinner, if the register be burnt and the parson and clerk be dead.
This action is by way of punishment : therefore the Court never inter-
fere as to the quantum of damages. No proof in such a case shall
arise from the parties' own act of cohabitation. The case of bigamy is
stronger than this : and on an indictment for that offence, Dennison, J.,
on the Norfolk Circuit, ruled, that though a lawful canonical marriage
need not be proved, yet a marriage in fact (whether regular or not),
must be shewn. Except in these two cases, I know of none where
reputation is not a good proof of marriage.
Plaintiff" nonsuited.
460 Select Cases on Criminal Law. [part hi.
[(C) Omnia praesumuntur rite ac solenniter esse acta.]
[See Warren v. Greenville, iii/ra.)
[E.g., a due Licence pres7imed.]
THE QUEEN v. CRESSWELL.
Crown Case Reserved. 1876. L.R. 1 Q.B.D. 446.
Case stated by Kelly, C.B.
The prisoner was tried at the last Summer Assizes at Chelmsford for
bigamy and convicted. It was proved that he married one Sarah Hill
in 1868, and that she was still alive ; and that he married his present
wife, the prosecutrix, in October, 1874, at St Mary, Islington. It was,
however, objected for the prisoner that the first marriage was void, on
the ground that it was solemnised not in a church, but in a chamber
at South Weald Hall, in Essex, which was situate some yards from the
parish church, and that the marriage took place while the church was
under repair. Divine service had been -several times performed in the
building in question, from which it was for the Court to consider
whether the presumption might be raised which would give validity
to the marriage. The statutes 4 Geo. IV. c. 76, ss. 21, 22, and
6 Wm. rV. c. 85, were quoted. The learned Judge reserved the point ;
and the question for the opinion of the Court was, whether upon the
above facts this was a valid marriage. If not, the conviction was to
bb set aside ; otherwise affirmed.
No counsel appeared for the prisoner.
C. E. Jones, for the prosecution, was not called upon.
Lord Coleridge, C.J. This conviction must be affirmed. The
case states that divine service had been several times celebrated in the
place where the marriage in question was solemnised. This is sufficient,
in accordance with the maxim omnia presumuntur rite esse acta, to
give rise to the presumption that the building was licensed. The
presumption is the stronger because the clergyman who celebrated the
marriage might, by 6 and 7 Wm. IV. c. 85, s. 3, have been indicted for
felony if he knowingly did so, in an unlicensed place.
[Mellor. Lush, and Grove, JJ. and Amphlett, B., concurred.]
Conviction affirmed.
SECT. I.] Rex V. Borrett. 4G1
[E.g., a due jippointment of an oj/icinl presumed.^
REX V. BORRETT.
Old Bailey Sessions. 1833. 6 CARniNOTON and Payne 124.
The prisoner was indicted upon stat. 2 Will. IV. c. 4, as a '• person
employed in the public service of his Majesty," for embezzling the over-
charge of a letter which came to his hands as a letter-carrier. The
letter was charged as a treble letter, but was, in fact, only a double one.
It was directed to Mr Collins ; but Mrs Collins had taken it in,
and paid the postage of it, and she alone had made any demand upon
the prisoner for repayment of the overcharge.
No evidence was offered of the px-isoner's appointment as a letter-
carrier ; but one of the witnesses proved incidentally that he acted as
such.
Stammers, for the prisoner, contended (1) that the prisoner's appoint-
ment ought to have been proved ; and (2) that the letter being directed
to Mr Collins, he was the only person authorized to receive the over-
cliarge, and that, consequently, as there had been no refusal to account
to him, the embezzlement was not proved.
Adolphus, contended that it was not necessary to prove the pri-
soner's appointment ; that he had been proved to have been acting as
a letter-carrier, and was therefore within the terms 'of the statute.
With regard to the second objection, Mrs Collins was the person who
paid the postage of the letter, and, therefore, she was authorized to
receive the rebate.
The Judges present (Ltttledale, J., Bolland, B., and Bosanquet,
J.) were of this opinion. The case went to the jury; and the prisoner
was convicted.
[E.g., due fulfilment of a statntor]/ condition presumed.']
BENNETT v. CLOUGH AND ANOTHER.
King's Bench. 1818, 1 Barnewall and Alderson 461.
Action by plaintiff, a sub-distributor of stamps at Chorley in
Lancashire, against the defendants, who were proprietors of a coach
running from Manchester through Chorley and Preston to Carlisle, for
£140 being the value of a parcel which had been sent by that con-
462 Select Cases on Criminal Lau\ [part hi.
vcyance and whicli had been lost by the way. The parcel was directed
to Samuel Staniforth, Esq., Liverpool (the stamp distributor there),
and contained two Bank post bills of £50 each, £40 in Bank of
England notes, and some stamps. In the cross-examination of Mr
Henry Bennett, the plaintilT's son, who proved the value and contents
of the parcel, it furtlier appeared tliat there was contained in the
parcel a letter sealed and directed to Mr Staniforth, but of the con-
tents of which he could give no account, not having ever seen them.
Bayley, J., who tried the cause at the last Assizes for the county of
Lancaster, thought that this did not prevent the plaintiff from recover-
ing for the value of the parcel, but gave the defendant leave to move
to enter a nonsuit if the Court should be of a difffront opinion. And
now
Scarhtt moved to enter a nonsuit. The question depends on
42 G. III. c. 81, by the fifth section of which it is enacted, "that no one
shall send any letter or letters, packet or packets of letters otherwise
than by the post, or by and with the authority of the Post-Master
General, on pain of forfeiting £5." It was therefore illegal to send
this packet, being within the expi-ess prohibition of the Act ; and the
plaintifi' cannot recover for its loss, unless in the opinion of tlie Court
it falls within the proviso mentioned in that Act. That proviso is^
"that the Act shall not extend to subject any person to any such
penalty or forfeiture as aforesaid, for sending or causing to be sent or
conveyed, or for tendering or delivering in order to be sent or con-
veyed, any letter or letters which shall respectively concern goods sent
by any common carrier of goods, and which shall be sent with, and for
the purpose of being delivered with, the goods that such letter or letters
do concern, without hire or reward, profit or advantage, for the
receiving or delivering the same." Now this was not a letter accom-
panying goods: for the principal contents of the parcel were bank
notes, and though there were certainly a few stamps also in it, yet the
plaintiff did not seek to recover any thing for them. At any rate it
must be a letter concerning the goods to bring it within the proviso,
and the plaintifi" therefore ought to have proved this by giving some
evidence of its corjtents, which was not done. But
The Court thought that the defendant ought to liave given prima
facie evidence that the letter did not concern the goods sent in the
parcel in order to have laid a foundation for liis objection. The parcel
contained stamps, and the letter was directed to the stamp distributor
at Liverpool, the presumption therefore is, that this letter which
1 For the similar exemption iu force under the present Post Oliice Act, see
1 Vict. c. 32, s. 2.
SKCT. I.] Bennett v. Cloiufh ami AnotJier. 463
accompanied the stamps related to them, illegality is never presumed:
on the contrary, everything must be presumed to have been legally
done till the contrary is proved.
Rule refused.
[(D) There is a presumption that a man who does any act
intends its natural consequences.]
REX V. SHEPPARD.
CiiOWN Case Reserved. 1810. Russell and Ryan 169.
The prisoner was tried before Mr Justice Heath, at the Old
Bailey September Sessions, in the year 1809, on an indictment consist-
ing of four counts. The first count charged the prisoner with forging
a receipt for £19. 16s. 6d., purporting to be signed by W. S. West,
for certain stock therein mentioned, with intent to defraud the
Governors and Company of the Bank of England. The second count
was for uttering the same knowing it to be forged, with the like intent.
The third and fourth counts varied from the first and second, in
charging the intent to have been to defraud Richard Morley.
It appeared in evidence at the trial, that Richard Morley gave £20
to his brother Thomas Morley in the month of January, 1 809, to buy
stock in the five per cent. Navy. In February following, Thomas Morley
gave the £20 to the prisoner, for the purchase of the said stock, on the
prisoner's delivering to him the receipt stated in the indictment. The
prisoner being examined at the bank, confessed that the receipt was
a forgery, that there was no such person as W. S. West, whose
signature appeared subscribed to the receipt, and that he being pressed
for money forged that name, but had no intentiDn of defrauding
Richard Morley. Richard Morley and Thomas Morley swore they
believed that the prisoner had no such intent. On examining the
bank books, no transaction corresponding with this could be found.
The learned Judge told the jury that the prisoner was entitled to
an acquittal on the first and second counts, because the receipt in
question could not operate in fraud of the governor and company of the
Bank. That as to the third and fourth counts, although the Morleya
swore that they did not believe the forgery to have been committed
with an intent to defraud Richard Morley, yet as it was the necessary
41)4 Select Cases on Criminal Law. [fakt hi.
efifect and consequence of the foigery (if the prisoner could not repay
the money), it was sufficient evidence of the intent for them to convict
the prisoner.
The jury acquitted the prisoner on the first and second counts, and
found him guilty on the third and fourth counts ; and the learned Judge
reserved this case for the opinion of the Judges, to determine whether
this direction to the jury was right and proper.
In Easter term, 31st of May, 1810, all the Judges were present,
and they were all of opinion that the conviction was right, as the
immediate effect of the act was the defrauding Richard Morley of his
money.
[See also Regina v. JJavitt, supra p. 380 ; and Bbatty v. Gill-
banks, mpra p. 392.]
[(E) There is a jjresumption that any existing state of things
ivill continue for some time further.^
[See Regina v. Jones, supra p. 428.]
[E.g., that a man survived for some time after being last heard o/!]
[See Regina v. Willshire, supra p. 4:29.]
[iy) Thfre is a jn-esumpfion that the possessor o/ goods recently
stolen is either the thief or a guilty receiver^
REGINA V. LANGMEAJX
Ckown Case Reserved. 1864. Leigh and Cave 427.
[At the Devonshire Quarter Sessions, James I^ngmead was charged,
in the first count of the indictment with stealing certain sheep, and in
SECT. I.] Regina v. Lanymend. 405
the second count with feloniously receiving the same, knowin-' tluin to
have been stolen. It was proved that, a few days after the theft, he
was in possession of the sheop. He gave the jury no explanation to
account for this possession. The circumstances given in evidence
seemed, however, to shew that he had not himself committed the theft.]
The jury found the prisoner guilty of feloniously receiving the
sheep, knowing them to have been stolen. Whereupon the counsel
for the pi'isoner objected that there was no evidence before the Court
to support the second count, and that the jury should have been
directed that they could not find the prisoner guilty on that count; for
the evidence proved no more than recent possession by the prisoner
after the loss, unaccounted for. He contended that (althougli a
presumption of guilt might legally be inferred from recent possession,
unaccounted for, alone, if the offence of which the jury found the
prisoner guilty had been theft, yet) guilt could not be thus inferred
from recent possession, unaccounted for, alone, in considering whether
the prisoner were guilty of feloniously receiving the sheep, knowing
them to have been stolen. The Court were of opinion that there was
sufficient evidence to support the verdict; but, at the request of the
prisoner's counsel, they granted a case on the following question :
Whether, upon the whole case, the jury should have been directed
that they could not lawfully find the prisoner guilty upon the second
count 1
S. Carter, for the prisoner. In this case it was proved to have
been impossible for either the prisoner or his sons to have stolen the
sheep; and therefore the prisoner should have been acquitted. For
recent possession is evidence of stealing only, and not of receiving
Blackburn, J. The prisoner was in possession of the sheep, and
gave no satisfactory account of them. He had possession of them,
therefore, dishonestly; and that dishonest possession might arise from
his being either the thief or the receiver.
Carter. Four things were wanting to prove that the prisoner was
guilty of receiving the sheep knowing them to have been stolen, viz. : —
first, evidence that sheep had been stolen; secondly, evidence that
sheep had been received by the prisoner; thirdly, evidence that the
sheep stolen and those received were the same ; fourthly, evidence of
guilty knowledge.
Pollock, C.B. Here, first, the sheep were lost; secondly and
thirdly, the lost sheep were traced to the prisoner; and, fourthly, he
gave no satisfactory account of them.
^;- * * * *
Byles, J. There are three ways in which the prisoner may have
K. 30
466 Select Cases on Criminal Lmc. [part hi.
received these sheep with a guilty knowledge. First, the boys may
have stolen them independently of their father, who may have received
the sheep from them. Secondly, the father may have sent the boys as
innocent agents to receive the sheep from the actual thief; in which
case the father would be guilty of receiving as a principal, the boys
being, as it were, merely the long arms with which he took the sheep.
Thirdly, he may have sent the boys for the same purpose, as guilty
agents; in which case, although the boys would be the principals in the
felony, yet the father would be an accessory before the fact, and might
be indicted and convicted as a principal. The jury may fairly have
drawn any one of these conclusions from the facts before them. Whether
they were right or wrong in their conclusion is not a question for us.
Where there has been a burglary, and some men and a woman are
found in possession of the property stolen, although the evidence may
be the same against all, the jury almost universally find the men guilty
of the burglary and the woman only of receiving ; the consideration of
her sex inclining their minds to the belief that she did not take any
part in the burglary.
Blackburn, J. I am of the same opinion. 1 do not agree with
Mr Carter in thinking that recent possession is not as vehement
evidence of receiving as of stealing. When it has been shewn that
property has been stolen, and has been found recently after its loss in
the possession of the prisoner, he is called upon to account for having
it; and, on his failing to do so, the jury may very well infer that his
possession was dishonest, and that he was either the thief or the
receiver according to the circumstances. If he had been seen near the
place where the property was kept before it was stolen, they may fairly
suppose that he was the thief. If other circumstances shew that it is
more probable that he was not the thief, the presumption would be
that he was the receiver. The jury should not convict the prisoner of
receiving, unless they are satisfied that he is not the actual thief. At
first I was inclined to suppose that in this case the jury came to the
wrong conclusion; but I now think that they were right. The prisoner
is found at Exeter dealing with the sheep which are brought to him
there by the boys. Now, he had set out with the boys that same
morning; and the distance from the place where the sheep were kept to
Exeter was too great for the boys to have travelled on foot. It is
more probable, therefore, that the sheep had been stolen previously by
some other person and driven to some place near Exeter, where they
were picked up by the boys. If that was so, the inference would be
irresistible that the person from whom the boys received them was the
actual thief. Then, that being so, the father was, no doubt, an
^^•^T. I.] Regina v. Langmead. 4G7
accessory before the fact, and there was, tlieiefore, evidence for the jury
on which they might convict him of receiving.
Mellor, J. I am of the same opinion. In theory the jury ought
to agree in their opinion; but in practice they often do not. Sonu;
think that the prisoner was the actual thief, and others that he was
the receiver only. It has been proposed to find some form of indict-
ment in which both parties might consistently concur in a verdict of
Guilty. That, however, has not been done; but instead two counts-
one for stealing and the other for receiving— are joined in the same
indictment. It is clear that, whatever was the mode in which the jury
in this case arrived at their verdict, there was evidence from which
they might safely have drawn either conclusion.
Conviction affirmed.
[But tills presumption does not arise uyitil the goods are proved
to have been actually stolen.]
ANONYMOUS.
Oxford Assizes. 16 — . 2 Hale's Pleas of the Crown cap. xxxix.
In some cases presumptive evidences go far to prove a person
guilty, though there be no express proof of the fact to be committed by
him ; but then it must be very warily pressed, for it is better five guilty
persons should escape unpunished than one innocent person should die.
If a horse be stolen from A., and, the same day, B. be found upon
him, it is a strong presumption that B. stole him. Yet I do remember,
before a very wary and learned judge, in such an instance, B. was
condemned and executed at Oxford Assizes; and yet within two
Assizes after, C, being apprehended for another robbery and convicted,
upon his judgment and execution, confessed he was the man that stole
the horse. He, being closely pursued, desired B., a stranger, to walk his
horse for him while he turned aside upon a necessary occasion ; and
escaped ; and B. was apprehended with the horse, and died innocently.
I would never convict any person for stealing the goods 'cujusdam
ignoti' merely because he would hot give an account how he came by
them, unless there were due proof made that a felony was committed
of these goods.
30—2
4U8 Select Cases on Criminal Laic. [part hi.
\An actual stealing must jirat be proved.]
REX V. YEND AKD HAINES.
Gloucester Assizes. 1833. 6 Cakrington and Payne 176.
Horse-stealing. The prisoners were indicted for stealing a horse,
the property of Mr Lord. The prosecutor proved that he had put the
stolen horse to be agisted with a person who resided twelve miles
distance from his own residence ; and, in consequence of hearing of its
loss from that person, he went to the field where the horse had been
put to feed, and discovered that it was gone.
GURNEY, B. I think you should prove the loss more distinctly,
because non constat but the prisoners might have obtained possession
of the horse honestly. I do not see how we can get at that, without
the person with whom it was put to agist, or his servant. It is perfectly
consistent with what has been proved, that the horse might have got
out of this person's possession in some other way, and not by felony.
Verdict, Not guilty.
[The degree of recentness required varies tuith the kind of proper ty.'\
REX V. PARTRIDGE.
Gloucester Assizes. 1836. 7 Carrington and Payne 551.
Larceny. The prisoner was indicted for stealing two ends of woollen
cloth (pieces consisting of about 20 yards each), the property of John
Figgins Marling.
It appeared that the cloth was missed on the 23rd of January, 1836,
it then being in an unfinished state; and that part of it was, on the
21st of March, left by the prisoner at the house of a person named
Porter ; and that on the 30th of the same month the prisoner sent the
residue of it to be shorn. It further appeared that, the prisoner being
in the custody of a constable, the latter said to the prosecutor,
Mr Marhng, "You must not use any threat or promise to the prisoner":
and immediately after this Mr Marling said to the prisoner, "I should
\)e obliged to you if you would tell us what you know about it ; if you
■will not, we of course can do nothing ; I shall be glad if you will."
C. Phillips, for the prisoner, submitted that anything said by the
prisoner after this was not receivable.
SECT. I.] Rex V. Partriflffc. 469
Patteson, J. I think this is a distinct promise; what could the
prosecutor mean by saying that if the prisoner would not tell they
could do nothing, but that, if the prisoner would tell, they would do
something for him ?
The statement of the prisoner was not given in evidence.
C. Phillips. I submit that the length of time that has elapsed
since the loss of the cloth is so great that there is no presumption of
guilt raised against the prisoner by the possession of it.
Patteson, J. I think the length of time is to be considered with
reference to the nature of the articles which are stolen. If they are
such as pass from hand to hand readily, two months would be a long
time; but here that is not so. It is a question for the jury.
Verdict, Guilty.
\A possession which is not sufficiently recent.'j
ANONYMOUS.
Buckingham Assizes. 1826. 2 Carrington and Payne 459.
Larceny. Goods, which had been lost sixteen months before, were
found in the house of the prisoner. This was the whole of the evidence
against him.
Baylet, J. The rule of law is that if stolen property be found,
recently after its loss, in the possession of a person, he must give an
account of the manner in which he became possessed of it ; otherwise
the presumption attaches that he is the thief. But I think that, after
so long a period as sixteen months had elapsed, it would not be reason-
able to call upon a prisoner to account for the manner in which property
supposed to be stolen came into his possession.
Verdict, Not guilty.
470 Select Cases on Criminal Law. [part hi.
[A possession not sufficiently recent.'^
REGINA V. COOPER.
EssRx Assizes. 1852. 3 Carrington and Ktrwan 318.
The prisoner was indicted for stealing a mare. It appeared that
the mare had been lost on Dec. 17, 1849, and was found in the pos-
session of the prisoner on June 20, 1850.
Maule, J., said he thought there was no case to go to the jury,
the possession not being sufficiently recent. Where a man is found
in possession of a horse six or seven months after it is lost, and there is
no other evidence against him except this possession, he ought not to
be called on to account for it.
Verdict, Not guilty.
\But the possessor can rebut the presumption by merely giving
an exjdanation without proving it.^
REGINA V. CROWHURST.
Kent Assizes. 1844. 1 Carrington and Kirwan 370.
Larceny. The prisoner was indicted for stealing a piece of wood,
the property of a person named Harman.
It appeared from the evidence given on the part of the prosecution
that, on the piece of wood being found by a police-constable in the
prisoner's shop, about five days after it was lost, he stated that he
bought it from a person named Nash, who lived about two miles oflF.
Nash was not produced as a witness for the prosecution, and the
prisoner did not call any witness.
Alderson, B. (in summing up). In cases of this nature you
should take it as a general principle that where a man, in whose
possession stolen property is found, gives a reasonable account of how
he came by it, (as by telling the name of the person from whom he
received it, and who is known to be a real person,) it is incumbent on
the prosecutor to shew that that account is false. But if tlie account
given by the prisoner be unreasonable or improbable on the face of it,
the onus of proving its truth lies on him. Suppose, for instance, a
person were to charge me with stealing this watch, and I were to say I
bought it from a particular tradesman, whom I name, tliat is prima
facie a reasonable account, and T ought not to be convicted of felony
unless it is shewn that that account is a false one.
Verdict, Not guilty.
SECT. II.] Rex V. Hazy and Col/las. 471
SECTION IT.
THE BURDEN OF PROOF.
[£Ji incumhit probatio qui dicit, non qui negat (Big. 22. 3. 2).]
[See Regina v. Curgerwen, supra p. 426.]
[But in accusations of crime the Presumption of Innocence throws
hack upon the accuser the burden of proving even negative aver-
ments of (juilt.^
REX V. HAZY AND COLLINS.
Bucks Assizes. 1826. 2 Carrington and Payne 458.
Indictment on the stat. 6 Geo. III. c. 36, for lopping and topping
an ash timber tree, " without the consent of the owner." The owner
(Sir J. Aubrey) had died before the trial. The offence was committed
at 11 o'clock at night on the 18th of February. Sir J. Aubrey died on
the 1st of March following, having given orders for apprehending
the prisoners on suspicion.
The land-steward was called to prove that he himself never gave
any consent; and, from all he had heard his master say, he believed
that he never .did.
Bayley, J., told the jury that they must be perfectly satisfied that
the prisonei's had not obtained the consent of the owner of the tree
(namely, Sir J. Aubrey) that they might lop and top it ; and left it
to them to say, whether they thought there was reasonable evidence to
shew that in fact he had not given any such permission. His Lordship
adverted to the time of night when the offence was committed, and to
the circumstance of the prisoners running away when detected, as
evidence to shew that the consent required had not in fact been given.
Verdict, Guilty.
472 Select Cases on Criminal Luiv. [part hi.
[Negative averments in accusations of Crime.]
WILLIAMS V. EAST INDIA COMPANY.
King's Bench. 1802. 3 East 192.
[Action by owner of a ship called the Princess Amelia, which
had been let to freight to the East India Company by charter-party,
for the destruction of the said ship by fire through the negligence of
the company. The negligence complained of was that the E.I.
Company, as chai'terers, had loaded on board the said ship certain
oil and varnish of a combustible and inflammable nature, without
giving " due or sufficient notice or intimation thereof " to the persons
concerned in the navigation of the said ship, in order that they might
so stow the same as not to endanger the safety of the ship. L^pon
a plea of not guilty it was proved at the trial before Lord Ellenborough
that a jar of a certain oil or varnish called by the natives in India
"Eoghan," supposed to be a composition of gum-gopal and linseed oil,
of a A'ery inflammable nature was put on board at Bombay amongst
a quantity of other military stores. In the written order to receive the
package on board it was simply called "Roghan" without any specifi-
cation of its nature. Evidence was given that neither the nature nor
the name of it was known generally. By its oozing out of the jar the
ship was set on fire, on the fourth day after putting out to sea, and
totally destroyed. The captain of the ship and the second mate proved
that no communication had been made to them or, so far as they knew,
to any other person on boai'd the ship concerning the inflammable
nature of the article. The chief mate, the person who actually received
the "Roghan" on board, was dead; and no evidence was given of what
passed between him and the Company's officer who delivered the
military stores on board.
Lord Ellenborough, C. J., non-suited the plain tifl" on the ground
that he had failed to prove an allegation which was material to support
the action ; viz. that no notice was given to the chief mate, as to
the dangerous nature of the commodity, when it was received on
board; for non constat but that the fullest notice had been given.]
Adam shewed cause against granting a new trial. Supposing it to
have been the duty of the Company's officer to give notice of the
dangerous nature of the commodity when it was delivered on board the
plaintiff's ship, it must be presumed, in the absence of all proof to the
contrary, that such notice was given ; as it cannot be presumed that the
officer acted contrary to his duty. It was therefore a necessary part of
the plaintifi''s case to shew that no such notice had been given; that
SECT. II.] Williams v. East India Company. 473
being the gist of the action, the wrong complained of; without wliicli
the action cannot be sustained, being damnum sine injuria. The plaintiff
having averred the want of such notice in his declaration, and made it
the foundation of his complaint, it was incumbent on him to prove it;
the subject-matter of the allegation, though conve3'ing a negative in
terms, being capable of affirmative proof, by calling either of the
persons by or to whom the commodity was delivered on board, or any
other who might happen to have been present at the time, to speak t(j
what passed on the occasion
Erskine, for plaintiff. This being a negative averment on tlie part
of the plaintiff, the affirmative of which was the ground of defence to
the action, it lay upon the defendant, whose duty it was to give the
notice, to prove affirmatively that it was in fact given. The general
rule is, that the party on whom the affirmative of the issue lies is to
begin by proving it. Now upon the plea of not guilty to an action on
the case, which puts in issue every material fact, the same rule must
prevail. . . .
Lord Ellenborough, C.J., delivered the opinion of the Court....
The rule of law is that where any act is required to be done on the one
part, so that the party neglecting it would be guilty of a criminal
neglect of duty in not having done it, the law presumes the affirmative,
and throws the burden of proving the contrary, that is, in such case,
of proving a negative, on the other side. Motike v. Butler, 1 Rol.
Rep. 83. "In a suit for tytlies in the spiritual court, the defendant
pleaded, that the plaintiff had not read the XXXIX. Articles ; and
the Court put the defendant to prove it, though a negative. Where-
upon he moved the Court for a prohibition ; which was denied :
for in this case the law will presume that a parson had read the
Articles ; for otherwise he is to lose his benefice. And when the law
presumes the affirmative, then the negative is to be proved." This, it
will be observed, was in a civil suit. So upon the same principle in
Lord Halifax's case, Bull. N. P. 29.*^, upon an information against Lord
Halifax for refusing to deliver up the rolls of the auditor of the Court
of Exchequer, the Court of Exchequer put the plaintiff upon proving
the negative, viz. that he did not deliver them: for "a person shall
be presumed duly to execute his office until the contrary appear."...
Where the law supposes the matter contained in the issue, there the
opposite party (that is, the party who contends for the contrary of that
which the law supposes) must be put into proof of it by a negative.
That the declaration, in imputing to the defendants the having wrong-
fully put on board a ship, without notice to those concerned in the
management of the ship, an article of a highly dangerous combustible
474 Select Cases on Criminal Law. [part hi.
nature, imputes to the defendants a criminal negligence, cannot well
be questioned. In order to make the putting on board wrongful, the
defendants must be conusant of the dangerous quality of the article
put on board ; and if being so, they yet gave no notice, considering the
probable danger thereby occasioned to the lives of those on board, it
amounts to a species of delinquency in the persons concerned in so
putting such dangerous article on board, for which they are criminally
liable, and punishable as for a misdemeanor at least. We are therefore
of opinion, upon the principle and the authorities above stated, that the
burden of proving that the dangerous article was put on board with-
out notice, rested upon the plaintiff, alleging it to have been wrongfully
put on board without notice of its nature and quality. The next
question is, Whether the plaintiff have given sufficient primS, facie
evidence of the want of notice to have gone to a jury. And we are of
opinion that he has not. The best evidence should have been given of
which the nature of the thing was capable. The best evidence was to
have been had by calling in the first instance upon the persons immedi-
ately and officially employed in the delivery and in the receiving the
goods on board, who appear in this case to have been the first mate on
the one side, and the military conductor on the other. And though the
one of these persons, the mate, was dead, it did not warrant the
plaintiff in resorting to an inferior and secondary species of testimony,
viz. the presumption and inference arising from a non-communication
to other persons on board, as long as the military conductor, the other
living witness immediately and primarily concerned in the transaction
of shipping the goods on board, could be resorted to: and no impossi-
bility of resorting to this evidence of the military conductor, the
proper and primary evidence on the subject, is suggested to exist in
this case. We are therefore of opinion that the nonsuit was proper,
and that the I'ule for setting it aside must be discharged.
Rule discharged.
[Unlfss apparent guilt has been proved, and the affirmative fact which
would disprove guilt lies peculiarly within prisoner's own knowledge.^
REX V. TURNER.
King's Bench. 1816. 5 Maule and Srlwvn 206.
[Conviction by two justices, under 5 Anne c. 14, s. 2, against
a carrier for having pheasants and hares in his possession ; he not
being a person in any manner qualified or authorised by the laws of
SECT. II.] Rex V. Turner. 475
this realm to kill game. Against the validity of the conviction, it was
argued (inter alia) that no evidence had been given by the prosecution
to prove that the defendant possessed none of the ten forms of quaHfi-
cation recognised by the gaino-laws then in force.]
Ifr * * * It
HoLROYD, J. It is a general rule, that the affirmative is to be
proved, and not the negative, of any fact which is stated; unless under
peculiar circumstances, where the general rule does not apply. There-
fore it must be shewn that this is a case which ought to form an
exception to the general rule. Now all the qualifications mentioned in
the statute are peculiarly within the knowledge of the party quaUhed.
If he be entitled to any such estate, as the statute requires, lie may
prove it by his title deeds, or by receipt of the rents and profits : or if
he is son and heir apparent, or servant, to any lord or lady of a manor
appointed to kill game, it will be a defence. All these qualifications
are peculiarly within the knowledge of the party himself, whereas the
prosecutor has, probably, no means whatever of proving a disqualifi-
cation. It seems to be the very case to which the rule ought to apply.
Conviction affirmed.
SECTION III.
EVIDENCE.
Chapter I. Importance of Observing the Rules
OF Evidence.
[/li criminal proceedings rigid adherence to the rules of evidence
is necessary ; as Consent cannot ' tvaive them.^
[vl conviction will be set aside if evidence wronghj admitted
may have influenced the ji-O-y.^
REX V. FISHER.
Court of Criminal Appeal. L.R. [1910] 1 K.B. 149.
[Appeal against a conviction for obtaining a pony and cart by false
pretences on June 4, 1909. The prosecution had been allowed to give
1 In cioil actions, if all parties aro siii juris, " the technical rules of Evidence
can of course be dispensed with " ; (see Lindley, L.J., L.R. [1895] 2 Ch. at p. 492).
On the other hand, "jus publicum privatorum pactis nmtari non potest";
476 Select Cases on Criminal Law. [part hi.
evidence not only of this partifiLir ofifonce, but also of the defendant's
having, by various dissimilar false pretences, obtained provender on
May 14, 1909 and July 3, 1909, and a horse on June 1, 1909.
The jury convicted: but disbelieved this last charge, the one about
the horse.
Marshall, for appellant. The evidence as to the three other cases
■was inadmissible. There was no special connexion between them and
the case charged on the indictment; nor were the goods the same; nor
the pretences the same. The cases would only prove that the de-
fendant had a generally fraudulent disposition; and such proof is
inadmissible.
Lawrie, for prosecution. They do shew a systematic course of
conduct in obtaining horses and provender by false pretences.]
Channell, J The evidence was amply sufficient to enable the
prosecution to ask the Jury to convict the appellant. But the prose-
cution proceeded to call witnesses to speak to other cases in which the
appellant was alleged to have obtained goods by false pietences. In
one the circumstances were very similar to those of the present case;
but the jury were not satisfied that the" appellant was the man con-
cerned in that case ; otherwise T should have been inclined to think
that the evidence as to that case was admissible
The principle is, that the prosecution are not allowed to prove that
a prisoner has committed the offence with which he is charged by
giving evidence that he is in the habit of committing crimes....
The evidence as to the other cases was inadmissible because it
only amounted to a suggestion that he was of a generally fraudulent
disposition. If all the cases had been frauds of a similar character,
shewing a systematic course of swindling by the same method, then
it would have been admissible.
In the circumstances of this case we cannot come to any other
conclusion but that the jury may have been influenced by the evidence
of the other cases; and therefore, (although there was sufficient evidcace
(Papiiiian, in I'if/est, n. 14. 38). And the public interests are so deeply concerned
in every instance of the administration of criminal justice that this maxim applies
with full force to each fundamental rule in criminal procedure ; and not least to
those relating to Evidence. "We cannot, in a criminal case, take anything as
admitted"; as Erie, C.J. said, (see p. 191 supra). Hence in every criminal trial
"it is the duty of the judge to see that the accused is condemned accordiiifj to
law; and the rules of Kvidence form part of that law.. ..(Still, much latitude is
given — de facto though not dejure — to prisoners who are not defended by counsel) " ;
(Best on Evidence, § 97).
«ECT. HI.] Eex V. FisJter. 477
to convict the prisoner witliout the evidence as to the other cases) in
accordance with tlio rule laid down in this Court, the conviction can'not
stand.
[Editor's Note. Until lately a still more striuaeut rule prevailed in criminal
coiu-ts; (though, snice the Judicature Acts, not in civil cues). If any item of
evidence, however unimportant, was illegally admitted or iUegally excluded a
conviction would be vitiated; for the courts declined the task of deciding whether
or not the evidence rightfully admitted must have been su-llicient to convince the
jury of the prisoner's guilt. See Reg. v. Glbsoit (L.R. 18 Q.B.D. 537). But under
the Criminal Appeal Act, 1907, s. 4 (1), "the Court may, notwithstanding that they
are of opinion that the point... might be decided in favour of the appeUant, dismiss
an appeal if they consider that no substantial miscarriage of justice has actually
occurred." Hence a conviction will now be upheld, in spile of a wrong ruling as to
evidence, if the Court sees that the jury (not merely might but) unmistakeably
''would have come to the same verdict even if the case had been tried in the proper
manner"; Eex v. Atherlon, 5 Cr. App. 11. at p. 237.]
Chapter II. The Relevancy of Evidence.
[Evidence must he confined to the points in issue.^
BOLDRON V. WIDDOWS.
WESTiMINSTER JST. P. SITTINGS. 1824. 1 CaRRINGTON AND PaYNE 65.
This was an action for defamation of the plaintiff" in his business of
a schoolmaster. The words were, in substance, that the scholars were
ill fed, and badly lodged, had had the itch, and were full of vermin.
Plea — that the whole of the words were true.
For the plaintiff, several witnesses proved the speaking of the
words, and that the boys were Vjoardcd, educated, and clothed, by the
plaintiff, at £20 a year each, near Richmond in Yorkshire : and the
usher of the school was called to prove that the boys were well fed and
478 Select Cases on Criminal Law. [part hi.
well lodged, and had no itch. In his cross-examination it appeared
that there were between eighty and ninety boys ; that about seventy
of them had had a cutaneous disease ; and that they all slept in three
rooms close to the roof, with no ceiling ; and that there was a general
combing of the heads of the whole school every morning over a pewter
dish, and that the vermin combed out were thrown into the yard ; no
boy was free from them. A piece of bread of a perfectly black hue
was shewn him : he did not think the bread in the h.chool so black as
that.
The witness having stated that he had himself been at the Appleby
grammar-school, the plaintiff's counsel wished to ask him what was the
quality of the provisions used by the plaintiff's school, compared with
those consumed by the Appleby grammar-school.
The defendant's counsel objected to this.
Abbott, C.J. That cannot be asked; what is done at any particular
school is not evidence. You may shew the general treatment of boys
at schools, and shew that the plaintiff treated the boys here as well as
they could be treated for £'20 a y^nv each, for board, education, and
clothes.
One of the plaintiff's scholars was then called to prove the plaintiff's
good treatment of them.
In cross-examination, the defendant's counsel wished to ask him
Avhetlier the plaintiff did not set the boys to plant potatoes in school
hours 1
Abbott, C.J. I do not think you can ask this; the issue here
being whether the plaintiff's scholars were ill fed, badly lodged, had the
itch, and had vermin. Nothing has been said as to their being badly
educated. Their education is not in question here.
Gv/rney, for the defendant, addressed the jury, and called witnesses
to prove the truth of the words.
Verdict for tlie plaintiff, damages <£120.
[See also Rex v. Vaughan, supra p. 375.]
[As to the application of this rule on trials for Conspiracy, see Rex v.
Roberts, Rex v. Cope, and Rex v. Hammond, supi-a pp. 409-411.1
SECT. III.] Rex V. Birdsei/e. 479
[Hence evidmce of other crimes, thomjk similar and committed
by the same prisoner, is usually irrelovaut.]
REX V. BIRDSEYE.
Bedford Assizes. 1830. 4 CAuiiiN'OTON and Payne 386.
Indictment for stealing pickled jjork, a howl, sonje knives, and
a loaf of bread.
It appeared that the prisoner entered the shop of the prosecutor,
and ran away with the pork. In about two minutes he returned,
replaced the pork in a bowl, which contained the knives, and took away
the whole together, threatening destruction to any one who followed
him. In about half an hour after, he came back to the prosecutor's
shop, and took away the loaf.
Mr Justice Littledale. This taking away the loaf cannot be given
in evidence upon this indictment. I think that the prisoner's taking
the pork, and returning in two minutes, and then running oflf with the
bowl, must be taken to be one continuing transaction, but I think that
half an hour is too long a period to admit of that construction. The
taking of the loaf, therefore, is a distinct ofience.
The prisoner was acquitted, the learned Judge telling the jury, that
the felonious intent was not sufficiently made out.
Cf. Rex v. Fisher, supra, p. 475.
[But becomes relevant if those crimes are so connected with the 07ic now
charged as to shew its character.'X
THE KING V. ELLIS.
King's Bench. 182G. 6 Barnewall and Cresswell 145.
An indictment, charging the prisoner with feloniously stealing six
shillings, the property of S. Newman, was found at a gaol delivery for
the city of Exeter, and was afterwards, on the motion of the prisoner,
supported by affidavits that great prejudice existed against him at
Exeter, removed into this Court by certiorari ; and an order was made
that the jury, to try the indictment, should bo drawn from the body of
the county of Devon. The prisoner was accordingly tried before
Littledale, J., sitting at Nisi Prius at the last Summer Assizes for
Devon; and found guilty. At the trial the following facts were proved.
The prisoner was a shopman in the employ of the prosecutrix, and, his
480 Select Cases on Criminal Lau\ [part hi.
honesty being suspected, on a particular day the son of the prosecutrix
put seven shillings, one half crown, and one sixpence, marked in a
particular manner, into a till in the shop, in which there was no other
silver at that time. The prisoner was watched by the prosecutrix's
son, who from time to time went in and out of the shop, occasionally
looking into and examining the till, while customers came into the shop
and purchased goods. Upon the first examination of the till it con-
tained lis. ^d. After that the son of tlie prosecutrix received one
shilling from a customer and put it into the till; afterwards another
person paid one shilling to the prisoner, who was observed to go with it
to the till, to put his hand in and to withdraw it clenclied. He then
left the counter, and was seen to r;xise his hand clenched to his waist-
coat pocket. The till was examined by the witness, and lis. 6c?. was
found in it, instead of 13s. Grf., which ought to have been there. The
prosecutor was proceeding to prove other acts of the prisoner, in going
to the till and taking money; when Wilde, Serjt. objected that evidence
of one felony had already been given, and that the prosecutrix ought
not to be allowed to pro^e several felonies. The learned Judge over-
ruled the objection, and the son of the prosecutrix proved that, upon
each of several inspections of the till after the prisoner had opened it,
he found a smaller sum than ought to have been there. Upon one
occasion there was 8s. 6c?. in it, and the witness observed that most of
that money was marked; he then put in Is. 6o?. more, and upon examin-
ing again found only 6s. 6c?. He then caused the prisoner to be appre-
hended and searched, and 14s. 6c?. was found upon him, six of the
shillings being part of the money marked by the witness and placed in
the till the same morning. The counsel for the prosecution said that
he relied upon the taking of the 3s. 6c?. after the witness had added
Is. 6o?. to the 8s. %d. which was then in the till; and desired that the
other takings might be excluded from the consideration of the jury.
The prisoner having been found guilty,
Praed, within the first four days of the term, had moved for a rule
for staying the judgment ; and it was then intimated by the Lord Chief
Justice that, altliough it was usual to confine the prosecutor to the
proof of one single act of felony, yet where the character of the
particular act with which the prisoner was charged was to be collected
from other acts done by him, all of them constituting one entire trans-
action, it was discretionary in the Judge to allow the prosecutor to go
into the whole ; but it would, however, be competent to the prisoner's
counsel, when he was brought up for judgment, to urge any matter to
the Court to induce them to stay the judgment. The prisoner upon
a subsequent day being brouglit up fur judgment, Chitty and Praed
SECT. III.] The Kinff v. Ellis. 481
renewed tlie application. Tiiey urged that, as at tlie ditlercjit times
when the witness went to the till it appeared money had been taken
from it, if the money taken each time was part of the marked money,
each taking would be a distinct felony; and the prosecutor ought to
have been confined in proof to one felony, otherwise the prisoner, if
afterwards indicted for any of those felonies, could not possibly plead
auterfois convict. If, on the other hand, all the marked money was
taken at one time, the other takings amounted to embezzlement; and in
that case evidence of an offence different from that which was the
subject of the indictment had been received. Tiie prosecutrix ought to
have been compelled to make her election; and in consequence of that
not having been done, the prisoner has been injured by the evidence
which has been given.
Bayley, J. I think that it was in the discretion of the Judge to
confine the prosecutor to the proof of one felony, or to allow him to
give evidence of other acts which were all part of one entire transac-
tion. Generally speaking, it is not competent to a prosecutor to prove
a man guilty of one felony, by proving him guilty of another uncon-
nected felony ; but where several felonies are connected together, and
form part of one entire transaction, then the one is evidence to shew
the character of the other. Now all the evidence in this case tended to
shew that the prisoner was guilty of the felony charged in the indict-
ment. It went to shew the history of the till, from the time when the
marked money was put into it, up to the time when it was found in the
possession of the prisoner. The evidence was properly received.
* * * * " *
[Or if they shew the prisoner's mens rea.]
See Regina v. Francis, infra, p. 492.
REGINA V. NEILL.
Central Criminal Court. 1892. Sessions Papers cxvi. 1417.
[A surgeon named Thomas NeilP was indicted for (and chargtd on
the coroner's inquisition with) the wilful murder of Matilda Clover.
A witness named Lucy Rose gave evidence thus: "I found the deceased
1 See the biography of Sir Wm. Broadbent, M.D., for Neill's scheme lor black-
mailing, by accusing others of having murdered these women.
K. 31
482 Select Cases on Criminal Law. [part hi.
l3ing across the foot of the bed, screaming, and apparently in great
awony. She said she had been poisoned by pills. She said once she
thought she was going to die, and that she would like to see her baby
then because she thought she was going to die."]
Sir Clias. Russell, Att. Gen., submitted that he had laid the founda-
tion for asking what statement the deceased had made as to how she
had been poisoned.
Geoghegan contended that the mere fact that a person said, when in
great pain, that she thought she was going to die, did not imply such
a settled sure feeling that there was no possible chance of recovery
as could render a dying declaration admissible.
Hawkins, J. Before a dying declaration can be admitted, it must
be proved that at the moment the person made the statement she was
in such a condition that her immediate death was probable ; she must
be labouring under a mortal disorder, which mortal disorder she believes
will be the immediate cause of death.
[The question was accordingly not asked.]
*****
At a subsequent stage of the case, the Attorney-General said that
he proposed to prove the prisoner's possession of strychnine, and to
shew that strychnine was the cause of death ; and thereupon to give
evidence of his having caused the deaths of three other women by
strychnine, and liaving attempted to administer it to a fourth. He
urged that these latter facts would be admissible (1) as evidence of
identity, (2) as evidence of motive, (3) as negativing any suggestion of
mistake or accident, and shewing that prisoner understood the nature
and quality of his act.
Warburton. The proposed evidence is not relevant to the issue.
Moreover it is the subject of other indictments against the prisoner.
In all the cases cited by the Attorney-General, the prisoners had lived
under the same roof with the deceased persons, and had admittedly
prepared the food by which they were poisoned. Strychnine is a com-
mon drug, to which all doctors and chemists have access, so that the
possession of it by the prisoner was not an exceptional circumstance.
The kind of evidence proposed might be admissible to negative an
obvious defence of accident, but in the present case no such defence is
possible. It is equivalent to trying the prisoner on several indictments
at the same time; caud it can only liave the effect of prejudicing the
case against him.
Hawkins, J. I am of opinion that I must admit the evidence. Whiit
the weight of it may be, is another question. As to its admissibility I
entertain no doubt, and therefore I shall not consent to reserve a case.
SECT. III.] JIakluv. Attorney General for New /South Wales. 48.S
JOHN MAKIN AND SARAH MAKIN v. THE ATTORNEY
GENERAL FOR Ni:W SOUTH WALES.
Judicial Co.mmittke of the Piuvy Council. 1893. L.R. [1894]
A.C. 57.
[Appeal from a judgment of the Supreme Court of New South
Wales, sustaining a verdict of guilty on an indictment for the murder
of an infant named Horace Amber Murray.]
The special case contained the following statement : "On the 9th of
November some constables found the remains of four infants in the
back yaid of 109, George Street, among which was the body of a male
child, from two to nine weeks old. It was clothed with a long white
baby's gown and underneatli a baby's small white shirt, both of which
were identified as being the gown and shirt in which Murray's baby
had been dressed. A minute portion of the infant's hair resembled
the hair of Murray's child. Previous to the finding of the four infants
in George Street, Redfern (on the 9th of November), two bodies of
infants had been discovered, one on the 11th and the other on the 12th
of October, on the premises in Burren Street, McDonaldtown, where
the prisoners had, it ajipears, resided from the end of June until about
the middle of August. During the adjournment of an inquest on one
of those bodies, held in October, the prisoner Sarah came to her former
residence in George Street, Redfern, and said to a witness, residin"-
there, that she had called to see about those people that had lived
there before her, that she was a great friend of theirs, and asked if the
police had dug the yard up, and further asked if any bodies had been
found in the yard. At this inquest both prisoners were examined, no
charge at that time having been made against them. They both swore
that the only child that they had ever received to nurse was the one
which tliey had in Burren Street, and which was given them after they
arrived there. The prisoner Sarah swore that none but her own family
had removed from George Street to Burren Street. On the 2nd of
November one body, and on the 3rd four more, were discovered
buried in Burren Street; and on the 3rd of November the prisoners
were arrested. On the night of that day prisoner John was placed in
a cell with a witness, who depo.sed that prisoner said to him that he
(Makin) was there for baby-farming, that there were seven found
and there was another to be found, and when that was found he would
never see daylight any more ; that is what a man gets for obliging
people ; that he could do nothing outside as they were watching the
ground too close; that there was no doctor could prove that he ever
31—2
484 Select Cases on Criminal Lair. [pxvjy hi.
gave them anything; that he did not care for himself, but that his
children were innocent. On the 12th of November the bodies of two
infants, bones only, were found on the premises of Levy Street,
Chippendale, where prisoners had resided some time previous to their
residence in Kettle Street. The prisoners had moved from Kettle
Street to George Street, and thence to Burren Street.
*****
Fullarton, Q.C., and Cunynghame, for the appellants, contended
that evidence as to finding of bodies other than the body the subject of
the issue to be tried, and the evidence of five women to the effect
that they had intrusted other children to the prisoners, which children
had never been seen again, was inadmissible and vitiated the verdict.
The general rule and practice of the Courts in criminal cases confined
the evidence strictly to direct evidence of the commission of the
particular act charged, and excluded evidence of similar acts committed,
or supposed to have been committed, by the same prisoner on other
occasions, not as being wholly irrelevant, but as inconvenient and
dangerous. To admit this latter class of evidence was apt to take
the prisoner by surprise, and raised issues as to other alleged acts,
which were confused with the true issue and which tended both to
confuse and unduly to prejudice the jury. The rule in cases of forgery
and of receiving stolen goods was an exception to the general rule for
special reasons, and should not be extended. Even in forgery cases
such evidence is only admitted after proof of the actual uttering of
forged notes or base coin by the prisoner, and where the only issue left
is as to the guilty intent, there being in these cases no presumption
of guilty knowledge or intent; but in murder this presumption is made
by law upon mere proof of the killing. In this case, moreover, there
is no proof of the killing; the evidence objected to is introduced to
induce the jury to believe the prisoners killed the child the subject of
indictment, and not merely to prove a felonious killing.... Then there is
no identification of any of the bodies except the one which is the
subject of indictment. Even if the cases in George Street and Burren
Street were admissible, the Levy Street evidence was wrongly admitted.
There was no proof that any children had ever been in the keeping of
the prisoners Ijefore or in Levy Street, and nothing to connect them
with the remains found there...
Sir E. Clarke, Q.C., Poland, Q.C., Chier, and R. H. Long Innes,
for the respondent, contended that the evidence in question was
not wrongly received. With regard to the evidence as to the finding
in Levy Street, that stood on a diflerent footing from the evidence as
to George Street and Burren Street The strongest evidence, as
SECT. Ill] Mal'inY.Attornet/ General for New Sontk Walca. ir..")
regards admissibility, was tliat relating to George Street. The evi-
dence of finding bodies other than the subject of indictment was of
necessity admitted in that instance because they were all found at the
same time and place. Then, in order to rebut the defence set up of
bona fide intention to adopt and maintain and of accidental death, the
evidence of the mothers of babies having delivered their children to
the prisoners at similar places and under similar circumstances, in-
cluding insufficiency of premium, was admissible. That brought in the
evidence with regard to the finding of bodies at Burreu Street, because
the child of one of these mothers was traced to and seen at the house
in Burren Street, but not seen elsewhere nor accounted for. All the
children of the mothers called disappeared and were not heard of again
since the prisoners left Burren Street; and the presumption arose that
the bodies found were identical with those of the missing children
unless the prisoners shewed to the contrary. The Levy Street evidence
was admissible because the evidence with regard to the finding of the
bodies at George Street and Burren Street, joined with the evidence of
the mothers called, led to the inf(M'ence that the prisoners had pursued
a similar course of conduct for some time previously. Evidence was
therefore admissible to support this inference by the recurrence of the
unusual phenomena of bodies of babies having been buried in an
unexplained manner in a similar part of premises previously occupied
by the prisoners. It was not merely in exceptional cases that evidence
of the kind objected to was receivable. It was the general, and not
the exceptional, rule of law to admit such evidence to rebut defence of
accident, and to shew existence of motive and a systematic course of
conduct
The Lord Chancellor delivered the judgment of their Lordships': —
...In their Lordships' opinion, there can be no doubt that there was
ample evidence to go to the jury that the infant was murdered. The
question which their Lordships had to determine was the admissibility
of the evidence relating to the finding of other bodies, and to the fact
that other children had been entrusted to the appellants.
In their Lordships' opinion the principles which must govern the
decision of the case are clear, though the application of them is by no
means free from difficulty. It is undoubtedly not competent for the
prosecution to adduce evidence tending to shew that the accused has
been guilty of criiiiinal acts, other than those covered by the indict-
ment, for the purpose of leading to the conclusion that the accused is
a person likely from his criminal conduct or character to have com-
1 The Lord Chancellor (Lord Herschell), Lord Watson, Lord Halsbury, Lord
Ashbourne, Lord Macnagkteu, Lord Morris, Lord Shand.
486 Select Cases on Criminal Laiv. [part hi.
mitted the offence for which he is being tried. On the other hand,
the mere fact that the evidence adduced tends to shew the commission
of other crimes does not render it inadmissible if it be relevant to an
issue before the jury; and it may be so relevant if it bears upon the
question whether the acts alleged to constitute the crime charged in
the indictment were designed or accidental, or to rebut a defence
which would otherwise be open to the accused. The statement of these
general principles is easy, but it is obvious that it may often be very
difficult to draw the line and to decide whether a particular piece of
evidence is on the one side or the other.
The principles which their Lordships have indicated appear to be
on the whole consistent with the current of authority bearing on the
point, though it cannot be denied that the decisions have not always
been completely in accord.
The leading authority relied on by the Crown was the case of
Reg. V. Geering^, where, on the trial of a prisoner for the murder of her
husband by administering arsenic, evidence was tendered with the
view of shewing that two sons of the prisoner who had formed part of
the same family, and for whom as well as for her husband the prisoner
had cooked their food, had died of poison, the symptoms in all these
cases being the same. The evidence was admitted by Pollock, O.B.,
who tried the case ; he held that it was admissible inasmuch as its
tendency was to prove that the death of the husband was occasioned
by arsenic, and was relevant to the question whether such taking
was accidental or not. The Chief Baron refused to reserve the point
for the consideration of the judges; intimating that Alderson, B., and
Talfourd, J., concurred with him in his opinion.
This authority has been followed in several subsequent cases. And
in the case of Reg. v. Dosseit\ which was tried a few years previously,
the same view was acted upon by Maule, J., on a trial for arson, where
it appeared that a rick of wheat-straw was set on fire by the prisoner
having fired a gun near to it. Evidence was admitted to shew that
the rick had been on fire the previous day, and that the prisoner was
then close to it with a gun in his hand. Maule, J., said : "Although
the evidence offered may be proof of another felony, that circumstance
does not render it inadmissible, if the evidence be otherwise receivable.
In many cases it is an important question whether a thing was done
accidentally or wilfully."
The only subsequent case to which their Lordsliips think it neces-
sary to refer to specifically is that of Reg. v. Grag'-^, where on a trial
for arson with intent to defraud an insurance company, Willes, J.
' 18 L. J. R. (N.S.) (M.C.) 21.5. " 3 C. and K. 306. ^ 4 F. and V. 1102.
SECT. III.] 3Ia1dnv. Attorney General for New South Wales. 487
admitted evidonco that the prisonor had made claims on two other
insurance comimnies, in respect of fires which liad occurred in two other
houses which he had occupied previously and in succession, for the
purpose of shewing that the fire which formed the subject of the trial
was the result of design and not of accident. . . .
Their Lordshi[)S do not think it necessary to enter upon a detailed
examination of the evidence in the present case. The prisoners had
alleged that they hat? received only one child to nurse ; that they hail
received 10s. a week while it was under their care, and that after a few
weeks it was given back to the parents. When the infant with whose
murder the appellants were charged was received from the mother she
stated that she had a child for them to adopt. Mrs Makin said that
she would take the child, and Makin said that they would bring it up
as their own and educate it, and that he would take it because
Mrs Makin had lost a child of her own two years old. Makin said
that he did not want any clothing ; they had plenty of their own.
The mother said that she did not mind his getting £3 premium so long
as he took care of the child. The representation was that the prisoners
were willing to take the child on payment of the small sum of £0,
inasmuch as they desired to adopt it as their own.
Under these circumstances their Lordships cannot see that it was
irrelevant to the issue to be tried by the jury that several other infants
had been received from their mothers on like representations and upon
payment of a sum inadequate for the support of the child for more
than a very limited period, or that the bodies of infants had been
found buried in a similar manner in the gardens of several houses
occupied by the prisoners.
^ ^ -^ -:i? ^r
Appeal dismissed.
[Editor's Note. Important though Matin's case is, its ratio decidendi is not
verj clearly expressed. Hence it has often been regarded — e.g., by the present Lord
Coleridge (5 Cr. App. R. at p. 240) — as having declared the evidence about the otb.er
deceased children to be admissible merely for the familiar purpose of establishing
viens rea, by tending to shew that the prisoners, v?hen they accepted possession of
the child Murray, must have had the intention of making away with him. But
there is now a great weight of authority for regarding it as having pronounced
the evidence admissible even for the purpose of establishing the uctits reus itself.
Thus in Eex v. Ball (ivfra, p. 489) Scrutton, J., told the jury (L.R. [1911] A.C.
at p. 52) that this evidence "must have been" admitted to prove the act of
kiUiug: for until the killing itself was proved,— and this evidence was the only
proof of it — no question of mens rea could arise. Similar views were expressed ia
the same case, during the course of the appeal, by Pickford, J. ^5 Cr. App. R. 240)
and by Lord Atkinson (6 Cr. App. R. 37). And Lord Loreburn, L.C., in deUvering
4S8 Select Cases on Criminal Law. [part in.
judgment in Hex v. Ball, would seem to indicate, by the use he made of Makin's
case, that he, too, regarded the disputed evidence in it to have been used for just the
same purpose as the disputed evidence in the case he was deciding— viz. for affording
proof of the actus reus.
A curious counterpart to Makin's case is afforded by another Australian prose-
cution, very similar in its facts yet snfiBciently different to have justified the Court
in giving an opposite ruling. In Heg. v. Smith (1 West Australian Reports 43, a.d.
1898), at the trial of a midwife on a charge of murder by an unlawful operation for
abortion, evidence was tendered that there had been found buried in her garden the
bodies of three very immature infants. It was held that, as there was nothing to
shew that the premature birth of these was due to any unlawful act, and as her
lawful calling was one in the course of which she might naturally become possessed
of such foetuses and bury them secretly, the evidence was not admissible against
her.]
\0r even shew the ^wisoner^ s Motive, e.g. Malice.']
REX V. YOKE.
Crowx Case Reserved. 1823. Russell axd Ryan 531.
[Indictment for maliciously shooting at Thomas Pearce. At the
trial the prosecutor gave evidence that he was a gamekeeper; and,
having caught the prisoner poaching, suggested to him to go to the
•steward's office and ask for forgiveness. They accordingly walked along
together; but when Pearce had got a little in front of Yoke, Voke
fired at his back, and then ran away. Pearce went to where his horse
was, and rode off. Half a mile further on, he came upon the prisoner
lurking in a hedge; and the latter, when four yards off him, fired a
shot which put out one of Pearce's eyes. This was about a quarter
of an hour after the previous shot.]
[Counsel for the prisoner objected] that the prosecutor ought not
to give evidence of two distinct felonies. But Buerough, J., thought
it unavoidable in this case; as it seemed to him to be one continued
transaction in the prosecution of the general malicious intent of the
prisoner. Upon another ground, also, the learned Judge thought such
evidence proper. The counsel for the prisoner, by his cross examination
of Pearce, had endeavoured to shew that the gun might have gone off
the first time by accident: and, although the learned Judge was satis6ed
SECT. III.] Rex V. Vole.
481)
that this was not the case, lie thought the second firing was evidence
to shew that the first (which had preceded it, only one quarti-r of an
hour) was wilful, and to remove the doubt (if any existed) in the minds
of tlie jury.
[The Judges, on a case reserved, were of opinion that the evidence
was properly received.]
[The prisoner's Motive, e.g. a guilty sexual attachment.]
REX V. BALL.
House op Lords. L.R. [1911] A.C. 47.
[Wm. Hy. Ball and Edith L. Ball, a brother and sister, were
convicted of two acts of incest committed in July and September of
1910. Evidence had been admitted at the trial not only as to these
two acts, but also as to previous similar ones.
The Court of Criminal Appeal held this latter evidence to be
inadmissible. In consequence of the "exceptional public importance"
of the question, the Attorney-General permitted an appeal to the
House of Lords, under s. 1 (6) of the Criminal Appeal Act, 1907.
Gregor%j, K.C., for the prisoners. The physical Act, and not the
Intent, is in question; and the act must be established by evidence of
what occurred at the time at which it is alPeged to have occurred.
Lord Atkinson. In a prosecution for murder... you can give in
evidence the enmity of the accused towards the deceased, to prove that
he took the deceased's life. Evidence of Motive necessarily goes to
prove the fact of homicide as well as the malice aforethought.
Sir Rufus Isaacs, for Crown. We admit that evidence of W. H.
Ball's intercourse with another of his sisters would not be adiuissible.
But proof that he had a guilty desire for this particular person is
relevant. Antecedent letters of an illicit amatory character would
have been evidence.]
Lord Loreburn, L.C. ...In accordance with the law laid down in
Makin's case {supra, p. 483), — which is daily applied in the Divorce
Court^ — I consider that this evidence was clearly admissible on the
issue that this crime was committed; not to prove a mens rea, as
Mr Justice Darling considered, but to establish the guilty relations
1 [Editor's Note.] See Wales v. Wales and Cullen, L.E. [1900] Prob. 63.
400 Select Cases on Criminal Laiv. [part iir.
between the parties, and the existence of a sexual passion between them,
as elements in proving that they had illicit connexion in fact on or
between the dates charged. Their passion for each other was evidence,
as much as was their presence together in the bed, of the fact that
when there they had guilty relations with each other. I agree that
the courts of law ought to be very careful to preserve the time-honoured
law of England that you cannot convict a man of one crime by proving
that he has committed some otlier crime. That, and all other safeguards
of our criminal law, will be jealously guarded; but here I think the
evidence went directly to prove the actual crime for which these parties
were indicted.
[All the eight other Lords who sat, expressed their concurrence.]
Conviction restored.
[Editor's Note. The principle of this decision has since been carried further
hy the Court of Criminal Appeal ; which, in a subsequent case of Incest, intimated
the admissibility of evidence of sexual acts committed even after the act for which
the parlies stood indicted; Rex v. Stone, 6 Cr. App. E. 91, 9^, 97.]
ClI.XPTER ITT. LEADIXd QUESTIONS.
[Leading questions are inadmissible.^
LINCOLN V. WRIGHT.
Rolls Court. 1841. 4 Beavan 107.
[The ])laintiffs had obtained an order for a commission to examine
witnesses, and had exhibited written interrogatories for their examina-
tion. The fourth interrogatory was : — "Was it at any, and what, time
after the decease of the testator, agreed by any, and what, persons... that
any, and which, of them should be the chief acting executor and trustee
under the will of the said testator"...? It was objected that this
interrogatory was a leading one.]
Loud Langdale, ^LR. All interrogatories must to some extent
make a suggestion to the witness ; it would bo perfectly nugatory to
ask a witness if he knew 'anything about something.'... One objection
«ECT. III.] Lincoln v. Wright 401
to the depositions was that they were taken under interrogatoriea,
which were "leading." They are said to be leading, un the ground
that they ask the witnesses whether it was agreed to the effect
suggested in the interrogatories. In the argument, it was contended
that the interrogatories ought to have asked, not simply whether it was
so agreed, but whether it was or was not so agreed. Now it has been
held that the interrogatories ought not to be in the form, "was it not
BO agreed?" that is considered to be leading. But the form "was it
so agreed?" does not appear to me to be suggestive of the answer.
It is impossible to examine a witness without referring to, or sut'^/est-
ing, the subject upon which he is to answer. If the question suggests
a particular answer, it is leading and improper. Questions have also
been held to be improper if, suggesting the subject, they are capable
of being answered by a simple affirmative or negative without any
circumstances. But a question 'whether such an event happened?'
does not suggest the answer that it did happen. Having read the
interrogatories in this case, I think that they are not capable of being
-answered in the affirmative or negative without circumstances.
[^Leading questions.^
PARKIN V. MOON.
"Westminster N.P. Sittings. 1836. 7 Carrington and Payxe 409.
Action on a bill of exchange, by indorsee against drawers. . . .
Piatt, for the plaintifi", in the course of the cause, was cross-
•examining one of the defendant's witnesses (who it seemed was an
unwilling witness for the defendant, but a willing one on the part of
the plaintiff), by putting leading questions in the usual way, when
E. V. Williams, for the defendant, objected to this course; and
submitted, that, under the circumstances, leading questions ouglit not
to be allowed to be put even on cross-examination.
Alderson, B. I apprehend you may put a leading question to an
unwilling witness on the examination in chief at the discretion of the
judge; but you may always put a leading question in cross-examination,
whether a witness be unwillini; or not.
492 Select Cases on Criminal Law. [part hi.
Chapter IV. Writings.
[^The contents of a writing should be proved by producing it i?i Court.'\
McDonnell v. evans.
London N. P. Sittings. 185L 3 Carrington and Kirwan 5L
Assumpsit on a bill of exchange. The defence relied on was the
forgery of the acceptance by one Peter Scott. Scott was called by
plaintifi' to prove that the acceptance was in the writing of the
defendant. On. cross-examination,
BramweU, for defendant, put into Scott's hand a letter, and a.sked,
" Did you not write this letter in answer to a letter charging you with
forgery V
Byles, for plaintiff, objected to the question. The earlier letter
referred to should be produced.
BramweU. The question may be put without producing the letter ;
for the only object in asking it is to test the credibility of the witness
and not to establish any fact in the case
Jervis, C.J. The question is inadmissible unless the letter referred
to be produced, or its absence duly accounted for. The rule of law is
that the best evidence must be produced ; but the answer to the ques-
tion would be giving secondary evidfuce of the contents of the letter.
As to allowing the question to Vje put with the view merely of testing
the veracity of the witness, The Queen's case (2 Br. and B. 286) decides
that such a course cannot be pursued.
[See, for an exception to this rule. Rex v. Fdrsey,
supra, p. 384.]
^Thou(jh the existence or condition of all other chattels may he
proved by oral evidence.]
THE QUEEN v. FRANCIS.
Crown Case Reserved. 1874. L.R. 2 C.C.R. 128.
[On an indictment for attempting to obtain an advance of money
upon a hoop ring, from a pawnbroker, by the false pretence that ife was
SECT. III.] The Qiieen v. Francis. 403
a diamond ring, evidence was admitted (for tiie purpose of shewing
guilty knowledge of the spuriousness of the ring), from two other pawn-
brokers, of the prisoner's having previously attempted to obtain similar
advances from them upon a cluster ring, wliioh he said was a diamond
ring. This cluster ring was not produced in Court, and the only
evidence that its stones were not genuine diamonds was the opinion of
these two witnesses. The question for the Court was whether the
evidence of these witnesses was properly admissible.]
Ilensman for the prisoner. Evidence of previous specific criminal
acts is not admissible on the trial of a criminal charge, according to the
general rules of evidence.... And, even if such evidence were admissible,
it ought not to have been received without the production of the
alleged fraudulent articles.
*****
Lord Coleridge, C.J., delivered the judgment of the Court.... It
seems clear upon principle that when the fact of the prisoner having
done the thing charged is proved, and the only remaining question is,
whether at the time he did it he had guilty knowledge of the quality of
his act or acted under a mistake, evidence of the class received must be
admissible. It tends to shew that he was pursuing a course of similar
acts, and thereby it raises a presumption that lie was not acting under
a mistake...
It was objected that the evidence of what took place at Leicester
was not properly received, because the cluster ring which he there
attempted to pass was not produced in Court ; and that the evidence of
two witnesses who saw it, and swore to its being false, was not admis-
sible. No doubt if there was not admissible evidence that this ring
was false it ought not to have been left to the jury ; but though the
non-production of the article may afford ground for observation more or
less weighty, according to circumstances, it only goes to the weight, not
to the admissibility, of the evidence; and no question as to the weight
of this evidence is now before us. Wlicre the question is as to the
effect of a written instrument, the instrument itself is primary evidence
of its contents; and until it is produced, or the non-production is ex-
cused, no secondary evidence can be received. But there is no case
whatever deciding that, when the issue is as to the state of a chattel,
{e.g. the soundness of a horse, or the equality of the bulk of the goods to
the sample), the production of the chattel is primary evidence ; and that
no other evidence can be given till the chattel is produced in Court for
the inspection of the jury. The law of evidence is the same in criminal
and civil suits. The conviction, therefore, should be affirmed.
Conviction affirmed.
494 Select Cases on CHmincd Law. [part hi.
\^And so may the mere existence or condition of even a Writing!\
JOLLEY V. TAYLOR.
Common Pleas. 1807. 1 Campbell 143.
Assumpsit against the proprietor of a stage coach, on a promise to
carry three promissory notes of £b each from Ware to London ; with
the common money counts.
To prove the delivery of the note.s, a witness was called who was
stated to have remitted them to the plaintiff", in discharge of a debt.
Being released ', he was proceeding to describe the notes, when —
Best, Serjt., for the defendant, objected that the plaintiflf must
previously prove a notice to produce them. Promissory notes, like all
written instruments, should speak for themselves, and are not to be
described according to the loose recollection of witnesses....
Sir James Mansfield, C.J. A notice here appears to me to be
unnecessary. I can make no distinction as to this purpose between
written instruments and other articles ; between trover for a promissory
note, and trover for a waggon and horses.
The witness then proved the delivery of three £5 notes of the
Hertford bank to the defendant. For the amount of which, the
plaintiff recovered a verdict.
Chapter V. Hearsay.
[" Hearsay is no evidence." I.e., a witness who has received /rom some
one a narrative, wfiether oral or written, describing some of th^.
Facts in Issue, is not allowed to give that narrative in evidence.^
SAMSON V. YARDLEY AND TOTTILL.
King's Bench. 16G7. 2 Keble 223.
In an appeal .of murder.... iriW, Serjt., for the defendant, offered
evidence of wliat a witness, [who had been] sworn on the trial on the
i [Editoe'b Note. I.e., releaBcd by the plaintiff from all liability for this debt.
The object of this release would be to avoid the operation of the common law rule
which rendered persons incompetent to give evidence in a liti^jation which concerned
any matter in which they bad an interest. Incompetency on the ground of interest
was removed by Lord Denman's Act of 184.'5 (G and 7 Vict. c. 85), and Lord
Brougham's Act of 18.51 (14 and 15 Vict. c. li'Jj.]
SECT. iiT.] Samson v. Yardlnj ami Tott'dl 405
indictment, said then, being now dead; also of wiiat i\w. now appellant
confessed then....
All the Judges admitted proof of what the api)ellajit had said at
any time before, generally.... But what the dead witness had said,
generally, they would not admit; it being but hearsay of a stranger
(and not of a party interested), which might be true or false ^
THE KING V. THE INHABITANTS OF ERISWELL.
King's Bench. 1790. 3 Term Repokts 707.
[Appeal against an order of Justices remo\'ing a pauper, John
Sharpe, from the parish of Icklingham to that of Eriswell. Down to
the time of the order being made he had been resident, since the year
1767, in the parish of Icklingham; but, on his becoming insane, an
order was made at Petty Sessions for his removal to Eriswell. On an
appeal to the Quarter Sessions the order was supported by tendering in
evidence a statement which in the year 1779 had been made, upon oath
and duly signed, by him before two Justices of the Peace when
examined by them as to the place of his last legal settlement ; in which
he stated " that about 24 years ago he served for a year in Eriswell
and received his year's wages ; since which time he has done no act
whereby to gain a settlement elsewhere," This evidence was objected to
on ohe part of the appellants. But it was received by the Court of Quarter
Sessions; who confirmed the order, but stated that in their opinion there
would not be sufficient evidence to warrant a confirmation apart from
this examination which had been objected to.]
* * * * »
^ [Editor's Note. " By the general rule of law, nothing that is said by any
person can be used as evidence between contending parties, unless it be delivered
on oath in the presence of these parties. Some inconvenience no doubt ai'ises from
such rigour. If material witnesses happen to die before the trial, the person whose
case they would have established, may fail in the suit. But although all the
Bishops on the Bench should be ready to swear to what they had heard these
witnesses declare (and should add their own belief in the truth of the declarations),
the evidence could not be received. The laws of other countries are quite different ;
they admit evidence of hearsay without scruple; there is not an appeal from
Scotland in which you will not find a great deal of hearsay e\idence." Per
Mansfield, C.J., in the Berkeley Peerage Case, a.d. 1811 ; (4 Camp. 413).]
496 Select Cases on Criminal Law. [part hi.
Grose, J. It is a general rule that hearsay evidence is not ad-
missible; except in some few particular cases where the exception (for
aught we know) is as ancient as the rule. A pedigree may be proved
by reputation ; prescriptive riglits may be so proved ; and yet in cases
of prescription those very persons who are permitted to give evidence of
what they may have heard from dead persons respecting tlie reputation
of the right, are not permitted to state instances of the exercise of the
right, which the deceased persons said they had seen No one ever
conceived that an agreement could be proved .by a witness swearing
that he had heard another say that such an agreement was made. Is
the evidence better upon the ground that it was upon oath administered
by two justices? Evidence, though upon oath, to affect an absent
person, is incompetent, because he cannot cross-examine ; as nothing
can be more unjust than that a person should be bound by evidence
which he is not permitted to hear. Before the statute of Philip and
Mary (.1 and 2 P. and M. c. 13; and 2 and 3 P. and M. c. 10),
a deposition taken before the justice of the county where the murder
was committed was not evidence, even though the party died or was
unable to travel. Why? Because although the justice had jurisdiction
to enquire into the fact, the common law did not permit a person
accused to be affected by an examination taken in his absence, because
he could not cross-examine : and therefore that statute was made.
^ ^ flt ^ ^
Lord Kexyon Evidence should be given under the sanction of an
oath legally administered ; and in a judicial proceeding depending either
between the parties affected by the evidence or those who stand in
privity of interest with them Examinations upon oath (except in the
excepted cases) are of no avail unless they are made in a proceeding
depending between the parties to be affected by them, and where each
of those parties has an opportunity of cross-examining the witness...
which was not the case with the parish now to be ali'ected, as to whom
it was altogether res inter alios acta. ...It has been said that there are
cases where examinations are admitted, viz. before the coroner, and
before magistrates in cases of felony. That observation appears to me
to go rather in support of the general rule than in destruction of it.
Every exception that can be accounted for is so much a confirmation of
the rule that it has become a maxim, "exceptio probat regulam."
Tliose exceptions alluded to are founded on the statutes of Philip and
Mary, and that they go no further is abundantly proved.
...1 am most clearly of opinion that this examination was not
admissible in evidence. It was ex parte, obtained at the instance ot
those overseers whose parish was to be benefited by it, and behind the
SECT. III.] The King v. The Inhabitants of Eriswell. 4!)7
backs of the parish against whom it has now been used, without their
having an opportunity of knowing what was going on or attending to
have the benefit of a cross-examination.
[The other two Judges dissented ; but the opinion of Lord Kenyon
and Grose, J., was afterwards approved in the case of Rex v. Ferry
Fryslone, 2 East 54.]
[But a ivitness may give evidence of any utterance he has heard which
does not merely describe, hut itself actually is, or qualifies, a
Relevant Fact.'\
[E.g., Utterances explanatory of the "res gestae" in which the speaker
was concerned at the time of utterance.^
THOMPSON AND WIFE v. TREVANION.
Middlesex N.P. Sittings. 1692. Skinner 402.
In an action of trespass for assault, battery and wounding of the
wife of the plaintiff... Holt, C.J., allowed that what the wife said
immediately upon the hurt received, and before that she had time to
devise or contrive anything for her own advantage, might be given in
evidence.
DU BOST V. BERESFORD.
Westminster N.P. Sittings. 1810. 2 Campbell 511.
Trespass for cutting and destroying a picture of great value, which
the plaintiff had publicly exhibited; per quod he had not only lost the
picture, but the profits he would have derived from the exhibition.
Plea, Not guilty.
It appeared that the plaintiff is an artist of considerable eminence,
but that the picture in question, entitled "La Belle et la Bgte," or
"Beauty and the Beast," was a scandalous libel upon a gentleman of
fashion and his lady, who was the sister of the defendant. It was
exhibited in a house in Pall Mall for money, and great crowds went
32
498 Select Cases on Criminal Law. [pakt hi,
daily to see it, till the defendant one morning cut it in pieces. Some
of the witnesses estimated it at several hundred pounds.
* * * * *
In the course of the trial, Lord Ellenborough, C.J., held upon
argument that the declarations of the spectators, while they looked at
the picture in the exhibition room, were evidence to shew that the
tigures pourtrayed were meant to represent the defendant's sister and
brother-in-law. . . .
Verdict for the plaintiff. Damagf.s £5.
\0r which describes the speaker's otvn feelings, bodily or
mental, at the time of utterance.^
REGINA V. JOHNSON.
Liverpool Assizes. 1847. 2 Carrington and Kir. 354,
Murder. The indictment charged the prisoner with having caused
the death of her husband by poison. ...In order to prove the state of
health of the deceased prior to the day of his death, a witness was
called, who had seen him a day or two before that time ; and on this
witness being asked by the counsel for the prosecution in what state of
health the deceased seemed to be when he last saw him, he began to
state a conversation which had then taken place between the deceased
and himself on this subject.
Wilkins, Serjt., objected.
Alderson, B. I think that what the deceased said to the witness
is reasonable evidence to prove his state of health at the time^...
AVESON V. LORD KINNAIRD AND OTHERS.
Kino's Bench. 1805. 6 East 188.
This was an action on a policy of insurance, dated 22 nd November,
1802, whereby the defendants, for a certain consideration, insured the
^ [Editor's Note. " If a man says to his surgeon, ' I have a pain in the head,'
or a pain in such a part of the body, that is evidence ; but if he says to his surgeon,
'I have a wound,' and was to add, 'I met John Thomas, who had a sword and ran
me through the body with it,' that would be no evidence against John Thomas";
(per Pollock, C.B., in Jieg. v. Nicholas, 2 Car. and Kir. 2i8, a.d. 181G).]
SECT. 111.] Arcsou V, Lord K'nmaird and others. 499
life of the plaintiff's wife, then warranted in i^ood health, and of the
description set forth in a certain certificate signed &c. and dated the
9th of November, 1802; and engaged to pay to the plaintiff £1500
within three months after her death : and the plaintiff averred that she
died on the 29th of April, 1803.
The defendant pleaded, 1st, That the phiintiff's wife was not in
good health, nor of the description set forth in the said certificate at
the time of making the policy....
...At the trial at Lancaster Assizes the plaintiff called the surgeon
from whom he had obtained the certificate of his wife's health on the
9th of November, 1802, who swore positively to his belief of her good
health on that day, though before a stranger to her ; and stated that
he observed her very minutely on that account, and formed his opinion
from an examination of her general appearance, her pulse, complexion
and other circumstances, and principally from the satisfactory answers
she gave to his inquiries....
The principal question, however, arose on the evidence of one
Susannah Lees ; who, being an intimate acquaintance of Mrs Aveson,
called accidentally upon her in November, 1802, soon after her return
from Manchester (where she went to obtain the certificate of her health,
on which the policy was afterwards effected). She found her in bed
at 11 o'clock in the forenoon. Mrs Aveson then said she was very
poorly ; that she had been to ^Manchester the Tuesday before ; that her
husband had been insuring her life ; and that she was not well when
she went. She spoke in a faint way. It was then objected by the
plaintiff's counsel that what she said was not evidence; but the
learned Judge admitted the evidence The witness then proceeded
to state that Mrs Aveson then told her that she was poorly
when she went to Manchester and not fit to go; that it would
be ten days before the policy could be returned ; and that she was
afraid she could not live till it was made, and then her husband could
not get the money The jury having found a verdict for the defend-
ants, a rule nisi was obtained for granting a new trial on the ground
that the evidence of Susannah Lees was improperly admitted, being
no more than evidence of hearsay.
Fa/rk, for the defendants The question being her own state of
health, of which no one could have so competent a knowledge as her-
self, whatever was said by her on that subject, at times and under
circumstances when collusion could not be suspected, formed part of
the res gestae of the subject of inquiry When an act is done to which
it is necessary to ascribe a motive, it is always considered tliat what is
said at the time, whence the motive may be collected, is part of the
32—2
500 Select Cases on Criminal Law. [part hi.
fact — part of the res gestae. As where the question is whether a
trader ordered himself to be denied when at home, or left his house in
order to delay creditors; what he said at the time of the act done
must necessarily be admitted to explain it, though not what he said at
another time; Bateman v. Bailey (5 T.R. 512) —
Cockell, Serjt., for plaintiff.... The evidence is open to the general
objection of hearsay; much, at least, of it being no part of the rea
gestae, as it is said to be. Her reason for being found in bed at the
time, that she was then unwell, might perhaps be admissible as
a declaration accompanying an act; but what happened at Manchester,
the motives of herself and her husband in going there, and how she
was at that time, and her future apprehensions concerning the policy,
were no part of the res gestae, nor capable of being proved l)y hearsay.
Declarations by the wife upon her elopement from her husband,
accusing him of misconduct, could not be given in eA^idence against
him in an action against the adulterer ; and yet the character of the
wife and husband are as much implicated in the inquirj-^ of damages
there as the health of the wife was in this case —
Lord Ellenborough. It is not so clear that her declarations made
at the time would not be evidence under any circumstances. If she
declared, at the time, that she fled from immediate terror of personal
violence from the husband, I should admit the evidence ; though not if
it were a collateral declaration of some matter which happened at
another time. His lordsliip also referred to the case of Thompson et
Uxor V. Trevanion, (supra p. 497).
It * * 0 *
Grose, J. The question in the cause was concerning her state of
health at the time of the insurance effected; and, in order to ascertain
that, it became material to inquire what the state of her health was
between the time of her first examination by the surgeon and the time
when she was seen by the witness who conversed with her. The first ques-
tion put to the witness was, in what situation she found Mrs Aveson
when she called? The answer was, in bed. To that there could be no
objection. The next question was, why was she in bed? Now who
could possibly give so good an account of that as the party herself?
It is not only good evidence, but the best evidence which the nature of
the case afibrded. It is true that she added something about the
insurance of her life in the course of explaiuiug what the state of her
health really was at the time, but the whole taken together is evidence
to shew what her own opinion of her health was at the tiuie of the
insurance: and on that ground I think it was evidence But I also
think the evidence was properly admitted on the other ground stated
SECT, in.] Aveso7i v. Lord Kiimaird ami others. 501
by my lord. For she had been examined by the surgeon :is to her
state of health on the 9th of November, and the surgeon was called as
a witness by the plaintiff to prove what in his judgment was the state
of her health when he examined her, which judgment was in course
formed in part from her answers to his inquiries. Then her subsequent
declarations were evidence to shew, that in truth she was not in the
state, at the time, which she represented herself to be in to him. In
strictness such declarations are admissible not so much as evidence
of confession of the wife against her husband, as of the actual state
of her health in her own opinion at the time. But in getting at this
opinion it is impossible to help particular expressions mingling with
it and coming out from the witness to explain that fact, which are not
evidence of the particular facts alluded to. But they were not tendered,
or received, as evidence of such particular facts.
[The other two Judges concurred.]
[But not one which narrates past conduct, however recent.]
REGINA V. BEDINGFIELD.
Norwich Assizes. 1879. 14 Cox 341.
Henry Bedingfield was indicted for the murder of a woman at
Ipswich. It appeared that he had conceived a violent resentment
against the deceased woman, on account of her... wish to put an end to
her relations with him. He had uttered violent threats against her,
and had distinctly threatened to kill her by cutting her throat. She
carried on the business of a laundress, with two women as assistants ;
the prisoner living a little distance from her. On the night before the
day on which the act in question occurred, the deceased, from some-
thing that had been said, entertained apprehensions about him, and
desired a policeman to keep his eye on her house. At ten at night, he,
being near, heard the voice of a man in great anger. Early next
morning the prisoner came to her house, earlier than he had ever been
there before ; and they were together in a I'oom some time. He went
out ; and she was found by one of the assistants lying senseless on the
floor, her head resting on a footstool. He went to a spirit shop and
bought some spirits, which he took to the house, and went again into
the room where she was, both the assistants being at that time in the
yard. In a minute or two the deceased came suddenly out of the house
502 Select Cases on Criminal Law. [part hi.
towards the women, with her throat cut ; and on meeting one of them
she said something, pointing backwards to the liouse. In a few
minutes she was dead. In the course of the opening speech on the
part of the prosecution it was proposed to state what she said. It was
objected on the part of the prisoner that it was not admissible.
CocKBURN, C.J. I have carefully considered the question, and am
clear that it cannot be admitted ; and therefore ought not to be stated,
as it might have a fatal effect. I regret that, according to the law of
England, any statement made by the deceased should not be admissible.
Although made in the absence of the prisoner, could it be admissible as
part of the res gestae? It is not so admissible ; for it was neither part
of anything done, nor was it something said while something was being
done. It was something said after something done. It was not as if,
while still in the room, and while the act was being done, she had said
something which was overheard.
Counsel for the prosecution consequently did not state what the
deceased said, but said they should tender it in evidence. Accordingly,
when one of the assistants who heard the statement was called as
a witness, she was asked as to the circumstances. She stated that "the
deceased came out of the house, bleeding very much at the throat, and
seeming very much frightened, and then said something, and died in
ten minutes."
It was then proposed to ask what she said.
CocKBURX, C.J. It is not admissible. Anything uttered by the
deceased at the time the act was being done would be admissible ; as,
for instance, if she had been heard to say "Don't, Harry !" But here
it is something stated by her after it was all over, whatever it was, and
after the act was completed.
It was submitted, on the part of the prosecution, that the statement
was admissible as a dying declaration, the case being that the woman's
throat was cut completely and the artery severed, so that she was
dying, and was actually dead in a few minutes ; but
CocKBURN, C.J., said the statement was not admissible as a dying
declaration, because it did not appear that the woman was aware that
she was dying.
[See also Regina v. Gloster, infra p. 518.]
SECT. III.] Reghia v. LiUymait. bO'i
[There are, moreover, some exceptional cases in, ivJiirh even mere TTrarsay
(i.e. a narrative of the past) can be (jivcii, in evidence.^
[Exception 1. In sexual crimes against Females, com/plaints {made
even, subsequently to the crime) are admissible to corroborate the
sujferer's story, as shewing a consistency of conduct.
REGINA V. LILLYMAN.
Crown Case Reserved. 1896. L.R. [1896] 2 Q.B. 107.
Case stated by Hawkins, J. The prisoner was tried at the Notting-
ham Assizes upon an indictment containing three counts : the first
count charged him with an attempt to have carnal knowledge of the
prosecutrix, a girl above the age of thirteen and under the age of
sixteen years; the second with an assault upon her with intent to
ravish and carnally know her ; and the third with an indecent assault
upon her.
The prosecutrix was called as a witness, and deposed to the acts
complained of having been done without her consent. Counsel for the
prosecution tendered evidence in chief of a complaint made by her to
her mistress, in the absence of the prisoner, very shortly after the
commission of the acts, and proposed to ask the details of the complaint
as made by the prosecutrix. The admission of the evidence was objected
to by the prisoner's counsel ; but the learned Judge overruled the objec-
tion and admitted the evidence. The mistress then deposed to all that
the prosecutrix had said respecting the prisoner's conduct towards her.
The jury found the prisoner guilty, and he was sentenced to one
month's imprisonment with hard labour, subject to the opinion of the
Court upon the question whether the evidence so admitted was rightly
admitted. If the evidence was rightly admitted, the conviction was to
be affirmed ; if otherwise, to be quashed.
The learned Judge stated that, the authorities being conflicting, he
had reserved the case in the hope that the law might be settled upon
a poiut of daily occurrence.
Fox, for the prisoner. The evidence was improperly admitted.
Upon principle, the fact of a complaint having been made is not
admissible in evidence, but it has been the universal practice to admit
it ; the particulars of the complaint, however, cannot be given iu
evidence. What is then said by the prosecutrix is not part of the res
gestae, and its admission must seriously prejudice the prisoner, who has
no means of contradicting it. The authorities shew a large balance of
judicial opinion against admitting the evidence.
564 Select Cases on Criminal Law. [part iii.
The judgment of the Court (Lord Russell of Killowen, C.J.,
Pollock, B., Hawkins, Cave, and Wills, JJ.) was delivered by
Hawkins, J.... It is necessary, in the first place, to have a clear
understanding as to the principles upon which evidence of such a com-
plaint, not on oath, nor made in the presence of the prisoner, nor
forming part of the res gestae, can be admitted. It clearly is not
admissible as evidence of the facts complained of : those facts must
therefore be established, if at all, upon oath by the prosecutrix or other
credible witness ; and, strictly speaking, evidence of them ought to be
given before evidence of the complaint is admitted. The complaint can
only be used as evidence of the consistency of the conduct of the prose-
cutrix with the story told by her in the witness-box, and as being
inconsistent with her consent* to that of which she complains.
In every one of the old text-books proof of complaint is treated
as a most material element in the establishment of a charge of rape or
other kindred charge....
...It is too late, therefore, now to make serious objection to the
admissibility of evidence of the fact that a complaint was made, pro-
vided it was made as speedily after the acts complained of as could
reasonably be expected.
We proceed to consider the second objection, which is that the
evidence of complaint should be limited to the fact that a cornplaint
was made without giving any of the particulars of it. No authority
binding upon us was cited during the argument, either in support of or
against this objection. We must therefore determine this matter upon
principle. That the general usage has been substantially to limit the
evidence of the complaint to proof that the woman made a complaint
of something done to her, and that she mentioned in connection witli it
the name of a particular person cannot be denied ; but it is equally
true that judges of great experience have dissented from this limitation,
and of those who have adopted the usage none have ever carefully
discussed or satisfactorily expressed the grounds upon which tlieir
views have been based....
...After very careful consideration we have arrived at the conclusion
that we are bound by no authority to support the existing usage of
limiting evidence of the complaint to the bare fact that a complaint
was made; and that reason and good sense are against our doing so.
The evidence is admissible only upon the ground that it was a com-
plaint of that which is charged against the prisoner ; it can be legiti-
* [EDrroK'B NoTi'. Bat it is now settled, (see Rex v. Osborne, L. R. [1905] 1 K.
B. 651 1, that the exception thus established hj Reg. v. lAUyman is not to be con
fined to those offences in which the absence of Consent is an essential element.]
SECT. Ill,] Regina v. Llllyman. bOb
mately used only for the purpose of enabling the jury to judge for
themselves whether the conduct of the woman was consistent with her
testimony on oath given in the witness-box (negativing her consent and
affirming that the acts complained of were against her will) and in
accordance with the conduct they would expect in a truthful woman
under the circumstances detailed by her. Tlie jury, and they only, are
the persons to be satisfied whether the woman's conduct was so con-
sistent or not. Without proof of her condition, demeanour, and verbal
expressions, all of which are of vital importance in the consideration of
that question, how is it possible for them satisfactorily to determine it 1
Is it to be left to the witness to whom the statement is made to deter-
mine and report to the jury whether what the woman said amounted to
a real complaint 1 And are the jury bound to accept the witness's
interpretation of her words as binding upon them without having the
whole statement before them, and without having the power to require
it to be disclosed to them, even though they may feel it essential to
enable them to form a reliable opinion 1 For it must be borne in mind
that if such evidence is inadmissible when offered by the prosecution,
the jury cannot alter the rule of evidence and make it admissible by
asking for it themselves.
In reality, affirmative answers to such stereotyped questions as
these, " Did the prosecutrix make a complaint " (a very leading ques-
tion, by the way) "of something done to herself?" "Did she mention
a name?" amount to nothing to which any weight ought to be attached ;
they tend rather to embarrass than assist a thoughtful jury, for they
are consistent either with there having been a complaint or no com-
plaint of the prisoner's conduct. To limit the evidence of the complaint
to such questions and answers is to ask the jury to draw important
inferences from imperfect materials, perfect materials being at hand
and in the cognizance of the witness in the box. In our opinion,
nothing ought unnecessarily to be left to speculation or surmise.
It has been sometimes urged that to allow the particulars of the
complaint would be calculated to prejudice the interests of the accused,
and that the jury would be apt to treat the complaint as evidence of
the facts complained of. Of course, if it were so left to the jury they
would naturally so treat it. But it never could be legally so left ; and
we think it is the duty of the judge to impress upon the jury in every
case that they are not entitled to make use of the complaint as an}--
evidence whatever of those facts, or for any other purpose than that we
have stated. With sucli a direction, we think the interests of an
innocent accused would be more protected than they are under the
present usage. For when the whole statement is laid before the jury
506 Select Cases on Criminal Law. [part hi
they are less likely to draw wrong and adverse inferences, and may
sometimes come to the conclusion that what the woman said amounted
to no real complaint of any offence committed by the accused. More-
over, the present usage and consequent uncertainty in practice (for the
usage is not universal) provokes many objections to the evidence on the
part of the prisoner's counsel, and these are generally looked upon with
disfavour by the jury; and the very object of contining the evidence of
the complaint to the few stereotyped questions we have referred to i?
often defeated by a device, not to be encouraged, by which the name of
the accused, though carefully concealed as an inadmissible particular of
the complaint, is studiously revealed to the jury by some such question
and answer as the following : " Q. In consequence of that complaint
did you do anything? A. Yes, I went to the house of the prisoner's
mother, where he lives, and accused him." This seems to us to be an
objectionable mode of introducing evidence indirectly, which, if tendered
directly, would be inadmissible
In the result, our judgment is that the whole statement of a woman
containing her alleged complaint should, so far as it relates to the
charge against the accused, be submitted to the jury as a part of the
case for the prosecution, and that the evidence in this case was, there-
fore, properly admitted. The conviction must be afl^med.
Conviction affirmed
[Exception 2. Admissions made by, or by authority of, the party
against whom, they are produced.^
MALTBY V. CHRISTIE.
Guildhall N.P. Sittings. 1795. 1 Espinasse 340.
The declaration stated that, the defendant being an auctioneer,
a bankrupt, Durouveray, whose assignee the plaintiff was, had, before
the bankruptcy, delivered to him a certain quantity of French plate-
glass to sell. The action was brought to recover the sum for which it
had been sold.
# ♦ * * *
Garrow, for plaintiff, in proving his case, found some difficulty in
proving the bankruptcy of Durouveray. He then produced the
defendant's catalogue of the sale of the glasses in question; in this,
they were stated to be "the property of Durouveray, a bankrupt."
SECT. III.]
Maltbij V. Chrintie.
60:
Lord Kenyon, C.J., held that this superseded the necessity of goiri"
through the different steps; the defendant being thereby precluded
from disputing the bankruptcy of Durouveray.
WILLTAIMS V. INNES ANT> OTHERS, EXECUTORS.
Westminster N.P. Sittings. 1808.
1 Campbelf. 364
Covenant on an indenture, whereby the defendant's testator cove-
nanted to marry the plaintiff within a certain time, or to pay her
an annuity. The defendants (inter alia) pleaded that they had fully
administered. To prove assets in their hands, an account rendered by
them to the plaintiff was given in evidence, in which they stated that
£1000 had been awarded as due to the testator's estate from a person
who had been jointly concerned with him in underwriting policies of
insurance.
Lord Ellenborough held this not to be sufficient proof of assets, as
it did not shew that any part of the sum awarded had been received by
the executors.
A letter from the defendants to the plaintiff was then put in,
stating to her, that if she wanted any farther information concerning
the affairs of the deceased, she should apply to a Mr Ross, a merchant
in the city. It was next proposed to adduce the plaintiff's attorney, to
prove that by her desire he had called upon Mr Ross, who in-
formed him that the whole of the £1000 had actually been received by
the defendants.
Scarlett objected to the admissibility of this evidence as not being
the best which the nature of the case admitted of, and contended that
Ross himself should be called, who would then state upon his oath
what he knew concerning this matter, and might be cross-examined as
to the means of knowledge which he possessed. But —
Per Lord Ellenborough. If a man refers another upon any
particular business to a third person, he is bound by what this third
person says or does concerning it, as much as if that had been said or
done by himself. This was agreed to be law by all the judges on the
trial of Mr Hastings,
508 Select Cases on Criminal Law, [part hi.
[Even though the admission be made during infancy.
O'NEILL V. REED.
Irish Court op Common Pleas. 1845. 7 Irish L.R. 434.
Action to recover the price of a horse sold and delivered by the
plaintiff to the defendant.... The defendant pleaded infancy; and the
plaintiff replied that the horse was a necessary, suitable to the degree,
estate and condition of the defendant At the trial, at Cork Assizes,
the plaintiff produced and examined a witness who deposed that he had
a conversation with the defendant. The latter, who then was still
under age, told him that he wished to buy a horse from the plaintiff; and
requested the witness (who was the plaintiff's attorney) not to throw
obstacles in the way, as his health was delicate, and he required horse
exercise. He also told witness that his allowance as a minor was £300
per annum; and that, on attaining his majority, he would have £1000
per annum. Counsel for the defendant objected to the reception in
evidence of these declarations. Ball, J., admitted them. The jury
found a verdict for the plaintiff for .£100, the price of the horse....
0^ Shaughnessy moved for a new trial, on the ground of the reception
of illegal evidence. If the admissions of infants are to be received in
evidence against themselves, an infant may in all cases represent his
circumstances to be such that the plaintiff may safely contract with
him, without further inquiry; and so the protection wliich the law
affords the infant will be neutralized....
Uenn, Q.C., for plaintiff. The testimony of an infant (if he is old
enough to be capable of knowing the nature of an oath) is receivable
against others, so why should it not be received as against himself?
In criminal cases the confessions of infants are receivable to convict
them, Wilde's Case (1 Moody 452); so their admissions should be
equally receivable in civil cases
Jackson, J.... If the argument for the defendant were well founded,
it would go the entire length of excluding from evidence all matters
connected with tlie contracts of a party while under age. But it is
well settled that some of these contracts are capable of confirmation by
him after attaining age; which confirmation could in few cases, if any,
be rendered effectual, if such evidence was held to be wholly inad-
missible The Judge was right, and the verdict must stand.
[The three other Judges concurred.]
SECT. III.] Neile v. Jalde. 609
[Admission by silent conduct is sufficientA
NEILE V. JAKLE.
Westminster N.P. Sittings. 1849. 2 Carrinqton and Kirwan 709.
Case for false imprisonment and malicious prosecution. In the
course of the cause a witness stated that, on one occasion, the plaintiff
■was in the kitchen of the defendant's house, that no one else was there,
and that the defendant's wife stood at the head of the kitchen-stairs,
and said something in a tone of voice loud enough for the plaintiff" to
hear.
On Wilkins, Serjt., proposing to ask what it was the defendant's
wife said —
Whitehurst, for the plaintiff, objected to the question, on the ground
that the only principle on which such questions were allowed was, that
if statements were made in the presence of a party, he had an opportu-
nity of contradicting them if untrue ; in this case the plaintiff was not
present.
Wilkins, Serjt., contended that as the plaintiff" could hear what
was said, she might have contradicted it if untrue, although she was
not actually present.
Maule, J., held that the question might be put.
REGINA V. SMITH.
Central Criminal Court. 1897. Sessions Papers cxxv. 266.
Arthur Greatorex Smith was indicted for feloniously using an
instrument upon the person of Constance Fletcher, with intent to
procure a miscarriage.
In the course of the case, evidence was given that two Inspectors,
Russell and Fox, went to the residence of the deceased, who at the
time was lying in bed very seriously ill. They obtained from her, in
the presence of the girl's mother and sister, and of the prisoner, a state-
ment, which was made in answer to questions put by Fox. It was
taken down in writing by Russell. It was shewn that, at the time,
the prisoner had immediately denied the truth of the material part of
this statement. . . .
Avory, for the crown, proposed to ask the witness what passed
between the deceased and the Inspectors, in the prisoner's presence.
510 Select Cases on Criminal Law. [fart hi.
He submitted that it was evidence, upon the ground that any state-
ment made in the presence of a prisoner was evidence against him.
Ha\vkins, J. A mere statement of the girl would clearly be
inadmissible if made in the absence of the prisoner. It could only
become admissible if evidence were given that the prisoner was present,
and moreover that he assented to it, whether by his words or by his
acts, or by his demeanour ; but, even then, only to the extent of that
assent. And, even then, it would become admissible, not because of the
girl's having so stated, but because of the prisoner's having by his con-
duct, tacitly or expressly, admitted its truth. The value of a statement
made in the prisoner's presence is nothing, unless the prisoner, by what
he said or did, or omitted to say or do, all'orded e\ddence from which
the jury may reasonably draw the inference that he assented to the
truth of the statement. Hence, a fortiori, it will not* be admissible if
the prisoner denied the truth of the statement. If the prisoner dis-
sented from a statement made in his presence, it will not be evidence.
The affirmative ought not to be assumed without evidence from which
the jury might, if they think fit, draw the inference that the prisoner
had assented to it. And it is for the Court to decide whether there is
any evidence from which such an inference could properly be drawn.
There is no such evidence in the present case, for the prisoner has
positively denied the material part of the statement Therefore, the
statement ought to be rejected. In short, the statement of the girl is
inadmissible per se ; and it can only be made admissible by evidence
that the prisoner heard it, understood it, and by his words or conduct
afforded some reasonable evidence that he admitted its truth. If with-
out such evidence a statement were to be admitted, the only effect of
it would be to prejudice the prisoner unfairly.
Mathews, for the Crown, withdrew the statement.
[Thus, if a document be found in your posf^ei^t^ion, i/our conduct, in
having kept it, is evidence of your knowledge of its contents.^
COTTON V. JAMES.
Westminster N.P. Sittings. 1829. Moody and Malkin 273.
[Action of trespass for breaking and entering the plaintiff's house
and taking his goods. Plea that the plaintiff was a bankrupt, and that
^ [Editor's Note.] Usually not; but a denial in words may, conceivabh', be
neutralized by the prisoner's demeanour. See the whole doctrine considered in
Rex V. Norton, 5 Cr. App. R. at p. 74.
SECT. 111.] Cotton y. James. 511
the seizure was under the warrant of the commissionerK in the bjink-
ruptcy. Replication by the plaintiff denying the bankruptcy. Tlie
only question being as to the existence of the bankruptcy, and the
affirmative of this issue being upon the defendant, he was held entitled
to begin. The act of bankruptcy relied upon was a fraudulent delivery
of part of the plaintiff's goods with intent to defeat a creditor.]
To prove this, Pollock, for the defendant, offered in evidence letters
of the plaintiff's son, who principally carried on the business, addressed
to the plaintiff and giving accounts of the manner in which he intended
to bestow different parts of the property, and of other circumstances
relating to the condition of the plaintiff's affairs. The letters had post-
marks antecedent to the act of bankruptcy ; and the messenger under
the commission found them among the plaintiff's papers, took possession
of them, and produced them.
Si?' James Scarlett, for the plaintiff, objected to their being received ;
the plaintiff's son himself ought to prove the facts.
Lord Tenterden, O.J. I must receive the evidence. Being found
in the plaintiff's possession after the bankruptcy, with postmarks of
a time before it, I must take it that he received them before it ; and
then they are evidence to shew, in explanation of the plaintiff's con-
duct, that he received intimation that such facts as those mentioned in
the letters took place. Of course they are not evidence that the facts
stated really did occur.
[Exception 3. Statements made by a person, now deceased, against his
pecuniary interest.^
WARREN V. GREENVILLE.
King's Bench. 1740. 2 Strange 1129.
Action of ejectment. Upon a trial at bar, the lessor of the plaintiff
claimed under an old entail in a family settlement, by Avhich part of
the estate appeared to be in jointure to a widow at the time her son
suffered a common recovery, which was in 1699. And the defendants
not being able to shew a suiTender of the mother's estate for life, it was
insisted that there was no tenant to the praecipe for that part, and the
remainder under which the lessor claimed was not barred.
To obviate this, it was insisted by the defendant that, at this
distance of time, a surrender should be presumed ; and to fortify this
512 Select Cases on Criminal Law. [part hi.
presumption they offered to produce the debt book of Mr Edwards, an
attorney at Bristol, long since deceased, where he charges .£32 for
suffering the recovery ; two articles of which are — for drawing a sur-
render of the mother 20s., and for ingrossing two parts thereof 20«.
more ; and that it appeared by the book the bill was paid.
And this being objected to as improper evidence, the Court was of
opinion to allow it ; for it was a circumstance material upon the
inquiry into the reasonableness of presuming a surrender, and could
not be suspected to be done for this purpose ; and if Edwards was
living he might undoubtedly be examined to it ; and this was now the
next best evidence. And it was accordingly read. After which the
Court declared that, without this circumstance, they would have pre-
sumed a surrender ; and desired that it might be taken notice of, that
they did not require any evidence to fortify the presumption after such
a length of time.
THE QUEEN v. THE CHURCHWARDENS «tc. OF
BIRMINGHAM.
Queen's Bench. 1861. 1 Best and Smith 763.
[Case stated by the Birmingham Quarter Sessions, who had quashed
an order for the removal of a pauper to the parish of Kingswood, on
the ground that there was no legal evidence that the tenement which
her husband's father had occupied in Kingswood was of the amount
sufficient to confer a settlement in the parish. The evidence tendered
to prove the amount of that rent was a statement, uttered by the
deceased man whilst in occupation of the tenement, to the effect that he
occupied it as tenant at a rent of £20 a year.]
O'Brien for respondent. This declaration is clearly hearsay, and
does not fall within any of the recognised exceptions to the rule reject-
ing that kind of evidence. Declarations by which a party in occupation
cuts down his interest are admissible to prove the fact of tenancy, but
not to prove collateral facts, such as the amount of rent, as here
CocKBUKN, C.J. I have seen many cases where facts have been
proved by written entries against interest, of the truth of which no one
could entertain a doubt, and justice would have been defeated if they
had not been received. A judge can always tell a jury that anything
extraneous in such statements may be disregarded. People were
SECT, in.] The Queen v. The Churchwardens of Birmingham. 513
formerly frightened out of their wits about admitting evidence, lest
juries should go wrong. In modern times we admit the evidence, and
discuss its weight. If a man says, " I pay £20 a year rent," there is
no more reason to doubt that he is telling the truth than when he says
he is paying rent at all.
* * * * *
CocKBURN, C.J. I am of opinion that this evidence ought to have
been received. It is well established that a declaration made by
a person in occupation of real estate that he holds as tenant, is ad-
missible after his decease to rebut the presumption of law, arising from
the fact of occupation, that he was owner in fee simple. The question
here is, whether, if a person, at the time he admits that he is not the
owner in fee but is only tenant of the property, states also the amount
of rent which he pays for it, that declaration is admissible, not merely
to shew that his occupation is an occupation as tenant, as distinguished
from that as owner, but to shew what in fact was the amount of rent
which he paid as tenant.
Now, it has been held, over and over again, in the analogous case
of declarations against pecuniary interest, that the declaration of the
deceased person may be received not only to prove so much contained
in it as is adverse to his pecuniary interest, but to prove collateral facts
stated in it ; at all events, so far as relates to facts which are not
foreign to the declaration, and may be taken to have formed a sub-
stantial part of it. That being settled, I cannot see in principle any
reason why the same effect should not be given to declarations against
proprietari/ as to declarations against pecuniary interest. It is true
that in this case the declaration was oral, and it has been pressed upon
us that a declaration of that kind does not stand on the same footing
as an entry made in the course of business, which was the evidence in
Highavi v. Ridgrmy^. And I quite admit that, as regards the effect of
the evidence, there is a great difference between them ; but that goes
rather to the weight, than the admissibility, of the evidence. I am
disposed to hold that there is no distinction in principle between
written and oral declarations if the other element of admissibility is
present, i.e., that the declaration was against pecuniary or proprietary
interest ; and either is admissible to prove what are, not very properly,
called collateral facts.
1 10 East, 109.
K.
33
514 Select Cases on Criminal Law. [part hi.
[Exception 4. Statements made by a person 7iow deceased, m
the course of his duty, either public or private.]
PRICE V. THE EARL OF TORRINGTON. '
Guildhall N.R Sittings. 1704. 1 Salkeld 283.
The plaintiflf, being a brewer, brought an action against the Earl of
Torrington for beer sold and delivered; and the evidence given to
charge the defendant was that the usual way of the plaintiff's dealing
was that the draymen came every night to the clerk of the brewhouse,
and gave him an account of the beer they had delivered out, which he
set down in a book kept for that purpose, to which the draymen set
their hands ; and that the drayman was dead, but that this was his
hand set to the book. And this was held by Holt, C.J., good evidence
of a delivery; otherwise of the shop book if left singly, without more.
[^Statement made in the course of duty.]
POOLE V. DICAS.
Common Pleas. 1835. 1 Bingham (N.C.) 649.
[Action on bill of exchange by indorsee against drawer. To prove
the dishonour, a notary's clerk produced at the trial a book containing
by the side of a copy of this bill the entry, "No effects," made by
another clerk named Manning, since deceased, who had gone, on the
day when the bill fell due, to demand payment of the acceptor.
A verdict having been given for the plaintiff, a motion was made to set
it aside, on the ground that the entry made by Manning ought not to
have been received in evidence, and that the person who gave the
answer at the place of presentment ought to have been called.]
Kelly, for defendant.... The entry was not the best evidence: for the
person who gave the answer at the place of presentment might have
been called....
* * * # #
Tindal, C.J... .We think the evidence admissible; on the ground that
it was an entry made at the time of the transaction, and made in the
usual course and routine of business, by a person who had no interest
to misstate what had occurred. If there were any doubt whether it
were made at the time of the transaction, the case ought to go down to
SECT. III.] Poole V. Dirn^.
515
trial again : but according to ray impression of the testimony in the
cause, the entry loas made at the time. Had any ambiguity existed on
that head, a single question to the witness, on cross-examination, would
have cleared it up.... The clerk had no interest to make a false entry:
if he had any interest, it was rather to make a true entry : it is easier
to state what is true than what is false; the process of invention
implies trouble, in such a case unnecessarily incurred; and a false
entry would be likely to bring him into disgrace with his employer.
Again, the book in which the entry was made was open to all the
clerks in the office, so that an entry if false would be exposed to
speedy discovery.... In the present case, it would operate as a great
hardship to require the testimony of the persons who might have Ijeen
present. The clerk who presented the bill could scarcely, at the
distance of two years, point out who it was that answered his appli-
cation ; and if it were necessary to call all the persons who resided at
the place of presentment, the expense and inconvenience would be
enormous....
[Exception 5. On trials for homicide, declarations are admissible
which were made by the slain person after he had lost all hope
of recovery.^
THE QUEEN v. JENKINS.
Crown Case Reserved. 1869. L.R. 1 C.C. R. 187.
Case stated by Byles, J. : —
The prisoner was convicted at the last Bristol Assizes of the murder
of Fanny Reeves, and is now under sentence of death, subject to the
decision of the Court of Criminal Appeal as to the admissibility of the
dying declaration of the deceased woman.
On the night of the 16th of October, between 8 and 9 o'clock,
the deceased was found in the river Avon, at a place where the river is
very deep. She was rescued from the water, but in an exhausted
condition, and she became, according to the medical evidence, in great
danger. On the next day, the 17th, she said she did not think she
should get over it, and desired that some one should be sent for to pray
with her. A neighbour accordingly visited lier about 8 o'clock p.m.,
who prayed with her, and, as her mother said, talked seriously to her.
33—2
516 Select Cases on Criminal Law. [pakt ni.
At 10 o'clock the same evening the magistrates' clerk came. Ho
found her in bed, breathing with considerable difficulty and moaning
occasionally. He administered an oath and she made a written state-
ment as hereinafter set forth. He asked her if she felt she was in
a dangerous state, whether she felt she was likely to die? She said,
"I think so." He said, "Why?" — She replied, "From the shortness of
my breath." Iler breath was extremely short ; the answers were
disjointed from its shortness. Some intervals elapsed between her
answers. The magistrates' clerk said, "Is it with the fear of death
before you that you make these statements?" and added, "Have you
any present hope of your recovery?" — She said, "None."
The counsel for the defendant pointed out that in the statement
the words "at present" were interlined. The magistrates' clerk was
recalled. He said, that after he had taken the deposition he read it
over to her, and asked her to correct any mistake that he might have
made. She then suggested the words "at present." She said "no hope
at present of my recovery." He then interlined the words "at present."
She died about 11 o'clock the next morning
...The examination of the deceased gave a detailed account of a
walk she had taken with the prisoner on the evening of the 16th of
October, and stated that he had induced her to go to the edge of the
river Avon, and had then pushed her in. After describing how she
wa,s saved from being drowned, the declaration continued: — "After
being so taken out I became insensible, and did not recover till I
found myself in bed in this house. Since then I have felt great pain
in my chest, bosom, and back. From the shortness of my breath I feel
that I am likely to die, and I have made the above statement with the
fear of death before me, and with no hope at present of my recovery.
Dr Smart has been to see me twice to-day."...
"The mark X of Fanny Reeves."
The jury found the prisoner guilty.
Sentence of death was passed, but execution stayed, that the
opinion of this Court might be taken on the admissibility of the
declaration.
Collins, for prisoner. The declaration of the deceased was not
admissible in evidence, as it does not appear that she had absolutely
no hope of recovery. The general principle on which declarations of
this kind are admitted is that "they are made in extremity, when the
party is at the point of death, and when every hope of this world is
gone, when every motive to falsehood is silenced, and the mind is
induced by the most powerful considerations to speak the truth.
SECT. III.] Tlie Queen v. JenJcins. .-»17
A situation so awful is considered by the law as... equal to an oath,"
per Eyre, L.C.B., in Woodcock's Case (1 Leach 502)....
2\ W. Saunders, for the prosecution. It is admitted tliat to make
the declaration evidence, it must be shewn that it was made in the
fear of impending death, under immediate expectation of death, and
when there was no hope of recovery. ... But the words "at present" do
not really alter the meaning of the sentence. The sentiment of hope,
or of want of hope, must necessarily refer to the time when the feeliii"-
is expressed. ...And while there is life, there is hope; and therefore
there can never be absolutely no hope of recovery.
Kelly, C.B — The result of the decisions is that tliere must be
an unqualified belief in the nearness of death, a belief without hope
that the declarant is about to die. If we look at reported cases, and at
the language of learned judges, we find that one has used the expression
"every hope of this world gone^"; another "settled hopeless expectation
of death^" ; another "any hope of recovery, however slight, renders
the evidence of such declarations inadmissible^." We, as Judges, must
be perfectly satisfied beyond any reasonable doubt that there was no
hope of avoiding death ; and it is not unimportant to observe that the
burden of proving the facts that render the declaration admissible is
upon the prosecution.
If the present case had rested upon the expression, "I have mnde
the above statement with the fear of death before me, and with no hope
of my recovery," a difficult question might have been raised. But
when these words were read over to the declarant, she desired to put
in the important words "at present"; and the statement so amended
is "with no hope at present of my recovery." We are now called
upon to say what is the effect of these words, taking into consideration
all the circumstances under which they were put in. The counsel for
the prosecution has argued that the words "at present" do not alter the
sense of the statement. We think, that they must have been intended
to convey some meaning, and we must endeavour to give eflfect to that
meaning.... If they have any meaning at all, they must qualify the
absolute meaning (which the declaration must contain in order to
render it admissible evidence). The conviction must therefore be
quashed.
Byles, J. As I tried the case, I wish to state that I entertain no
doubt that the declaration was not aduiissible. There being no other
1 Per Eyre, C.B., Woodcock's Case, 1 Leach, C. C. at p. 502.
2 Per Willes, J., Reg. v. Peel, 2 F. and F. at p. 2->.
« Per Tindal, C.J., Rex v. Haijward, 6 C. and P. at p. IGO.
618 Select Cases on Crimiiud Law. [part hi.
evidence against the prisoner, I thouglit it best to admit tlie declaration,
and reserve the point whether it was admissible evidence.
Dying declarations ought to be admitted witli scrupulous, and I had
almost said with superstitious, care. They have not necessaril}' the
sanction of an oath; they are made in the absence of the prisoner;
the person making them is not subjected to cross-examination, and is
in no peril of prosecution for perjury. There is also great danger of
omissions, and of unintentional misrepresentations, botli by the de-
clarant and the witness, as this case shews. In order to make a
dying declaration admissible, there must be an expectation of impend-
ing and almost immediate death, from the causes then operating.
The authorities shew that there must be no hope whatever
[The other three Judges concurred.]
Conviction quashed.
REGINA V. GLOSTER.
Central Criminal Court. 1888. Sessions Papers cviii. 647.
[James Gloster was indicted for (and charged on the Coroner's
inquisition with) the wilful murder of Eliza Jane Schumacher. The
prisoner, a medical man, was alleged to have caused the death of the
deceased by an unlawful operation, performed with intent to procure
abortion.... The deceased woman had, from time to time during her
illness, made statements as to her bodily sufferings and their cause ;
but not under such circumstances as would render them admissible as
dying declarations.]
Poland, for the Crown, offered these statements as expressions of
the deceased's bodily feelings. He cited Reg. v. Palmer (shorthand
report), Aveson v. Lord Kinnaird (supra, p. 498).
Gill and Avory, for the prisoner, contended that such evidence must
be restricted to expressions of the deceased's feelings and symptoms at
the time of making the complaint; thus excluding all statements as to
their cause and the mention of any name. They cited Reg. v. Gutteridge
9 C. and P. 472; Reg. v. Osborne Car. and M. 622; Reg. v. Megson
9 C. and P. 420.
Charles, J., decided that the statements must be limited to con-
temporaneous symptoms; and that nothing in the nature of a narrative
was admissible ; as, for instance, how the bodily condition was caused,
SECT. III.] Reglna v. Gloster. 519
or who occasioned it. With these Hniitations, the evidence wus
admitted.
The Crown tendered in evidence a written statement, which had
been taken down from the dictation of the deceased (and afterwards
signed by her) shortly before her death. On the admissibility of this
as a dying declaration, the counsel for the Crown asked the Court
to decide whether it was sufficiently shown to have been made in
expectation of impending death. The woman's expressions were :
"I do not think I shall recover, and "I shall not be long here."
Gill objected to its admission; and quoted the dictum of Byles, J.,
in Reg. v. Jenkins {supra, p. 515) that "dying declarations ought to be
admitted with scrupulous and almost superstitious care."
Charles, J. The result of the decisions is that there must be
an unqualified belief in the nearness of death, every hope of this world
must be gone ; and in the words of Mr Justice Willes, in Reg. v. Peele
(2 F. and F. 21) there must be "a settled hopele.ss expectation of
death." Taking all the circumstances of the case together, I cannot
come to the conclusion that the deceased was in that condition. The
statement, therefore, cannot be admitted.
Roland stated that, the declaration being excluded, he could not
proceed further.
Not guilty.
[See also Regina v. Neill, supra, p. 483,
and Regina v. Bedingfield, supra, p. 501.]
\^Bui onh/ on trials for homicide.]
REX V. MEAD.
King's Bench. 1824. 2 Babnewell and Cresswell 605.
The defendant was indicted for perjury ; and at the Middlesex
sittings, before Abbott, C.J., was found guilty. The perjury, of whicli
the defendant was convicted, consisted in Mead's swearing, upon the
trial of an information in the Exchequer, that one James Law hatl
been present at and engaged in a smuggling transaction, at a place
520 Select Cases on Criminal Lair. [part hi.
called the Salt-Pans, in the parish of Seal by, in the county of York, on
the 20th of August, 1820 ; upon the trial of which information Law
was acquitted. A rule for a new trial was obtained by the Attorney
General, on the ground of the verdict having been against the weight
of evidence. [Counsel for the Crown now shewed cause against a new
trial. They tendered affidavits, some of which stated a dying declara-
tion of the above-mentioned James Law ; who had been the prosecutor
on the indictment for perjury, and had been shot by the defendant
Mead, after the conviction of the latter. The dying declaration of
Law, after giving an account of the circumstances under which he was
shot by Mead, proceeded to negative his having been present at, or
having had any concern whatever in, the smuggling transaction which
Mead had deposed to in the Court of Exchequer.
The Attorney General objected to these affidavits of the dying
declaration being received. Dying declarations are only admissible in
criminal prosecutions where the death of the deceased and the circum-
stances of the death are the subject of the charge against a prisoner.
Whereas here the statement, disclosed by the affidavits tendered, was
not made with reference to the death of the dying man, but with refer-
ence to the antecedent charge of perjury. In Doe dem. Sutton v.
Ridgeway (4 B. and A. 53), it was held that the dying declarations of
a person as to the relationship between the lessor of the plaiutift" and
the person last seised, could not be received in evidence.
D. F. Jones and Chitty, for the Crown, contended that the affidavits
as to the dying declarations were admissible. The general principle
upon which such evidence is competent is founded partly on the situa-
tion of the dying man, which must be taken to have as much power
over his conscience as the sanction of any oath could have, and partly
on the manifest absence of any interest, when he is on the point of
passing into another world. Lord Mohun^s case, 12 St. Tr. 949; Rex
v. Reason, 1 Strange 499 —
Abbott, C.J. We are all of opinion that the evidence cannot be
received The dying declaration of Law was for the purpose, not of
accusing but, of clearing himself. It therefore falls within the general
rule that evidence of this description is only admissible where the death
of the deceased is the subject of the charge, and the circumstances of
the death are the subject of the dying declaration.
SECT. III.] The Queen v. Thompson. 521
CiiAPTKR VI. Confessions.
\In criminal trials, an admission made by the accused cannot be givrn
in evidence ij it were induced by any tJtreat or jiTomise, connected
with the pj'osecution.^
THE QUEEN v. THOMPSON.
Crown Case Reserved. 1893. L.R. [1893] 2 Q.B. 12.
At the Westmoreland Quarter Sessions, held at Kendal on
October 21, 1892, Marcellus Thompson was tried for embezzling
certain moneys belonging to the Kendal Union Gas and Water Com-
pany, his masters. Mr Crewdson, the chairman of the Company, at
whose instance the warrant for the prisoner's apprehension had been
issued, was called as a witness by the prosecution to prove among other
things a confession by the prisoner. As soon as tliis confession was
sought to be put in evidence, objection was taken to its admissibility,
and we therefore, before receiving further proof, allowed the witness to
be cross-examined by the prisoner's counsel. In answer to the latter's
questions, the witness stated that, prior to the confession being made,
the prisoner's brother and brother-in-law had come to see him, and that
at this interview he said to the prisoner's brother, " It will be the right
thing for Marcellus to make a clean breast of it." The witness added,
"I won't swear I did not say 'It will be better for him to make a clean
breast of it.' I may have done so. I don't think I did. I expected
what I said would be communicated to the prisoner. I won't swear I
did not intend it should be conveyed to the prisoner. I should expect
it would. I made no threat or promise to induce the prisoner to make
a confession. I held out no hope that criminal proceedings would not
be taken." No evidence was produced to the Court tending to prove
that the details of the interview had been communicated to the
prisoner, or to rebut the evidence of Mr Crewdson as to what took
place at the interview. It was then contended by the prisoner's counsel
that the above statements to the prisoner's brother were inducements to
the prisoner to confess, held out by a person in authority, and tliat
evidence of the confession was therefore inadmissible. We found that
Mr Crewdson was a person in authority, and we found, as a fact, that
the statements made by him were calculated to elicit the truth, and
that the confession was voluntary, and we accordingly admitted the
evidence. The witness then proved that after the interview he charged
the prisoner with embezzling the Company's money, and one of the
directors told tlie prisoner that he was in a very embarrassing position.
522 Select Cases on Criminal Law. [vart hi.
The prisoner replied, "I know that; I will give the Company all the
assistance I can." He said, in answer to witness's charge, "Yes, I
took it; but I do not think it is more tlian £1000. It might be a few
pounds more." No statement was made to tlie prisoner that the con-
fession would save him from prosecution ; there was no threat or
promise. Subsequently the prisoner made out a list of moneys which
he admitted had not been accounted for by him. This list we also
admitted in evidence. The prisoner was convicted and sentenced to
three years' penal servitude. The question for the opinion of the Court
is whether the evidence of the confession was properly admitted. The
case having been sent down for amendment, the following statement
was added : — At a meeting of the directors a question was asked by
one of the directors as to the value of the stock on a farm occupied by
the prisoner's brother, and it was suggested that a bill of sale over the
stock should be given. The prisoner stated that the worth of the stock
was over £1000, but that he could not accept the suggestion about the
security without telling his brotlier. At the same meeting the prisoner
said, " My brothers have got it " (meaning the money) ; " it has gone to
pay interest on mortgages." Mr Crewdson said, " I never agreed not
to prosecute, if a bill of sale were given." After the charge was made,
£340 was received from the prisoner, together with some money and an
I.O.U. for £25, which were found in the cash-box. Of the sum of
£340, £90 was paid into the bank by the prisoner, and £250 by his
brother. Mr Crewdson stated that no arrangement was made as to the
discrepancy being treated as a debt, and that the sum paid was simply
by way of restitution.
*****
Segar for the prosecution. Evidence of the confession was ad-
missible. It is not shewn that what passed between the prisoner's
brother and the prosecutor was communicated to the prisoner. The
words used were also advice on moral grounds. Confessions preceded
by exhortations of this kind were held admissible in Reg. v. Jarvis\
and Reg. v. Reeved The justices have found that the confession was
voluntary; and it was for them to decide what words were used, and
whether they were repeated to the prisoner in such a manner as to
convey a promise or threat. Evidence of a confession is prima facie
admissible, and can only bo excluded upon proof by the prisoner that
the confession was n<jt voluntary.
Cave, J. . Many reasons may be urged in favour of the admissibility
of all confessions, subject of course to their being tested by the cross-
examination of those who heard and testify of them ; and Bentiiam
1 L. It. 1 C. C. It. 'J<;; infra, p. 525. ^ L. R. 1 C. C. K. 3G2.
SECT. III.] The Queen v. Thompmn. 623
seems to have been of this opinion (Rationale of Judicial Evidence,
Bk. v., eh. vi., s, 3). But this is not the law of England. By that
law, to be admissible, a confession must be free and voluntary. Tf it
proceeds from remorse and a desire to make reparation for the crime, it
is admissible. If it flows from hope or fear, excited by a person in
authority, it is inadmissible. On this point the authorities are unan -
mous
In Eeg. v. Baldry^ it is said by Pollock, C.B., that the true ground
of the exclusion is not that there is any presumption of law that a con-
fession not free and voluntary is false, but that " it would not be safe
to receive a statement made under any influence or fear." He also
explains that the objection to telling the prisoner that it would be
better to speak the truth is that the words import that it would be
better for him to say something. With this view the statutory caution
agrees, which commences with the words : " You are not obliged to say
anything unless you desire to do so^."...
...If these principles and the reasons for them are, as it seems
impossible to doubt, well founded, they aflbrd to magistrates a simple
test by which the admissibility of a confession may be decided. They
have to ask. Is it proved affirmatively that the confession was free and
voluntary — that is. Was it preceded by any inducement to make
a statement held out by a person in authority 1 If so, and the induce-
ment has not clearly been removed before the statement was made,
evidence of the statement is inadmissible.
In the present case the magistrates appear to have intended to
state the evidence which was before them, and to ask our opinion
whether on that evidence they did right in admitting the confession.
Now there was obviously some ground for suspecting that the confession
might not have been free and voluntary ; and the question is whether
the evidence was such as ought to have satisfied their minds that it was
free and voluntary. Unfortunately^ in my judgment, the magistrates
do not seem to have understood what the precise point to be deter-
mined was, or what evidence was necessary to elicit it. The new-
evidence now before us throws a strong light on what was the object of
the interview between Mr Crewdson and the prisoner's brother and
brother-in-law, why he made any communication to them, and why he
expected that what he said would be communicated to the prisoner.
There is, indeed, no evidence that any communication was made to the
prisoner at all ; but it seems to me that after Mr Crewdson's statement,
that he had spoken to the prisoner's brother and -brother-in-law alx)ut
1 2 Den. C. C. 4:^0, at p. 442.
■ See the Indictable Offences Act, 1848 (11 and 12 Vict. c. 42), a. 18.
524 Select Cases on Criminal Laiv. [part hi.
the desirability of tlie prisoner making a clean breast of it, with the
expectation that what he had said would be communicated to the
prisoner, it was incumbent on the prosecution to prove whether any,
and if so, what, communication was actually made to the prisoner,
before the magistrates could properly be satisfied that the confession
was free and voluntary.
The magistrates go on to say that they inferred that the details of
the interview would be (by which I suppose they intend to say that
they inferred they were) communicated to the prisoner, which seems to
have been the right inference to draw under the circumstances. They
add that they found, as a fact, (1) that the statements made by
Crewdson were calculated to elicit the truth, and (2) that the confession
was voluntary. The first of these findings, if the ruling of Pollock, C.B.,
in Reg. v. Baldry^ is, as I take it to be, correct, is entirely immaterial.
The second finding, if it is a corollary from the first, does not follow
from it, and, if it is an independent finding, is not warranted by the
evidence ; and, as the question for us is whether this finding was
warranted by the evidence, I feel compelled to say that in my judgment
it was not. Taking the words of Mr Crewdson to have been, " It will
be the right thing for Marcellus to make a statement," and that those
words were communicated to the prisoner, I should say that that com-
munication was calculated in the language of Pollock, C.B., to lead the
prisoner to believe that it would be better for him to say something.
All this, however, is matter of conjecture; and I prefer to put my
judgment on the ground that it is the duty of the prosecution to prove,
in case of doubt, that the prisoner's statement was free and voluntary;
and that tliey did not discharge themselves of this obligation
[The other four Judges concurred.]
Conviction quashed.
[See also Rex v. PAitTiacGE, sujyra, p. 468.]
\But not if the person who induced the confession had no share of
authority in the prosecution.^
REX V. GIBBONS.
Worcester Assizes. 1823. 1 Carrinotox and Payne 97.
The prisoner was indicted for the murder of her bastard child.
1 2 Den. C. C. 430, at p. 442.
SECT. III.] Rex V. Gibbous. 525
Mr Cozens, a surgeon, was called to prove certain confessions made
by the prisoner to him. The witness objected to giving such evidence,
on the ground, that, at the time of the statement, he was attending tlie
prisoner in the capacity of a surgeon.
Park, J. That is no sufficient reason to prevent a disclosure for
the purposes of justice.
The witness also stated that he had held out no threat or promise
to induce her to confess ; but a woman who was present said, that she
had told the prisoner she had better tell all ; and then the prisoner
made certain confessions to the witness.
Campbell objected, that, as the confession was made after an induce-
ment held out, it could not be received in evidence.
Park, J., after consulting with Hullock, B,, laid down that, as no
inducement had been held out by Mr Cozens, to whom the confession
was made ; and the only inducement had been held out (as was alleged)
by a person having no sort of authority ; it must be presumed that the
confession to Mr Cozens was a free and voluntary confession. If the
promise had been held out by any person having any office or authority,
as the prosecutor, constable, &c., the case would be different; but here
some person, having no authority of any sort, officiously says, you had
better confess. No confession follows ; but, some time afterwards, to
another person (the witness), the prisoner, without any inducement
held out, confesses. They (the Judges) had not the least doubt that
the present evidence was admissible.
It was accordingly admitted.
The prisoner was acquitted on other grounds.
\0r if he induced it by an appeal made solely to moral or religious
consider at ions. ]
THE QUEEN v. JARVIS.
Crown Cask Reserved. 18G7. L.R. 1 C.C.R. UG.
The following case was stated by the Recorder of London : —
At a Session of the Central Criminal Court, held on the 8th of July,
1867, and following days, Frank Jar vis, Richard Bulkley, and Wilford
Bulkley, were tried before me on an indictment for feloniously stealing
138 yards of silk and other propeity of William Leaf and others, the
masters of Jaivis. There was a second count in the indictment for
52G Select Cases on Crimhial Law. [part hi.
feloniously receiving the same goods. William Laidler Leaf was
examined, and said : The prisoner Jarvis was in my employ. On the
13th of May we called him up, when the officers were there, into our
private counting house. I said to him, "Jarvis, I think it is right that
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." I produced a letter to him,
which he said he had not written ; and I then said, " Take care,
Jarvis ; we know more than you think we know." I do not believe I
said to him, "You had better tell the truth."
Counsel for the prisoner Jarvis objected to any statement of his
made after the above was said being received in evidence; and referred
to Rex V. WiUiams\ Reg. v. Warriiif/ham^, Reg. v. Garner^, Rex v.
/Shepherd*, and Reg. v. Millen^
Counsel for the prosecution referred to Reg. v. Baldry^, Reg. v.
Sleeman'^, and Reg. v. Parker^. I decided that the statement was
admissible.
The jury found Jarvis guilty, adding that they so found upon his
own confession, but they thought that confession prompted by the
inquiries put to him. They acquitted the other two. At the request
of counsel for Jarvis I reserved for the Court for the consideration of
Crown Cases Reserved the question, — Whether I ought to have
admitted the statements of the prisoner in evidence against him?
Coleridge, Q.C. {Straight with him) for the prisoner. In the case
of Reg. V, Baldry', all the cases with reference to the admissibility of
confessions are reviewed. The principles arrived at in that case were,
first, that a confession must be free and voluntary, and that the onus
of shewing this lies on the prosecution ; secondly, that any inducement
or threat of a temporal kind prevents the confession from being free or
voluntary ; thirdly, that it is immaterial what impression the person
who made use of the inducement or threat intended to convey. The
ground for not receiving such evidence is that it would not be safe to
receive a statement made under any influence, whether of hope or fear.
If in this case the words had b(!en, "You had better answer truth-
fully," there would have been no doubt about the inadmissibility of the
statement ; and yet the words actually used are substantially the same.
It is playing with language, considering the position of the parties, to
1 i Den. C. G. 433. « 15 jur. 318; 2 Den. C. C. 447, note.
» 1 Den. C. C. 329. ♦ 7 C. and P. 579. » 3 Cox's Crim. Gas. 507.
6 2 Den, C. G. 430. ' Dears. G. G. 219. » Leigh and Cave C. G. 42.
SECT. III.] The Queen v. Jarviii. 627
say there was no inducement. It wa.s equivalent to saying, " 1 should
advise you to say what is better for you "; or, in othei- word.s, " You
had better tell the truth." The law cannot measure the extent' of tlio
influence used, if any has been used and exercised on the mind.
*
*
Kelly, C.B....In this case, do the words fairly considered import
either a threat of evil or a promise of good ? They are these : " Jarvi.s,
I think it is right that 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 tliat
may be put to you you will answer truthfully." Pausing at these
words, they would seem to operate as a warning rather than a threat,
as advice given by a master to a servant. What follows?—" So that!
if you have committed a fault you may not add to it by stating what is
untrue." These words appear to have been added on moral grounds
alone ; there was no inducement of advantage. Under these circum-
stances, putting no strain one way or the other, the words amount only
to this : " We put certain questions to you ; I advise you to answer
truthfully, only that you may not add a fault to an offence committed,
if any has been committed." With reference to the last words, " Take
care ; we know more than you think we know"— these amount only to
a caution. The words, " You had better tell the truth," seem to have
acquired a sort of technical meaning, importing either a threat or
a benefit ; but they were not used in this case. The words that have
been used import only advice on moral grounds.
[The other four Judges concurred.]
Conviction affirmed.
[Or made even to temporal considerations if they are unconnecteil
with the result of the prosecution.']
REX V. WM. LLOYD AND GEORGE LLOYD.
Glouce.ster Assizes. 1834. 6 Carrington and Payne 393.
The prisoner, William Lloyd, was indicted for stealing bank notes
and money in the dwelling-house of Frances Gurner ; and the pri.soner
George Lloyd was charged with receiving the stolen property, knowing
it to have been stolen.
528 Select Cases on Criminal Laio. [part hi.
It appeared that the prisoner, George Lloyd, and his wife, were
both in custody on this charge, but in separate rooms. A person, who
was in the room where tlie former was in custody, said — " I hope you
will tell, because Mrs Gurner can ill afford to lose the money"; and
that the constable said — "If you will tell where the property is, you
shall see your wife."
Greaves, for the prisoner, objected to evidence being given of any
thing that was said after this.
Patteson, J. I think that this is not such an inducement to
confess as will exclude the evidence of what the prisoner said. It
amounts only to this, that, if he would tell where the money was, he
should see his wife'.
The evidence was received.
Chapter VII. Evidence of Character.
Y Character' does not mean disposition but reputation.]
[//i criminal cases, evidence of the defendant's good character is
always admissihle.^
REGINA V. ROWTON.
Crown Case Reserved. 1865. Leigh and Cave 520.
The following case was stated by the Deputy Assistant Judge of
the county of Middlesex.
James Rowton was tried before me, at the Middlesex Sessions, on
the 30th of September, 1864, on an indictment which charged him with
liaving committed an indecent assault upon George Low, a lad about
fourteen years of age.
On the part of the defendant, several witnesses were called, who
had known him at different periods of his life ; and they gave him an
excellent character, as a moral and well conducted man.
On the part of the prosecution, it was proposed to contradict this
testimony; and a witness was called for that purpose. This was
^ [Editor's Note. " I take it no man ever makes a confession voluntarily
without proposing to himself in his own mind iome. advantage to be derived from
it"; per Taunton, J., in Rex v. Green (6 C. and P. 656), where the removal of the
arrested prisoner's handcuffs was held not to be such an inducement as would
exclude.]
SECT, nj.] Ueg'ma v. Rowtoii. 529
objected to by the defendant's counsel, who contended that no such
evidence was receivable, and cited the case of Begina v. Jiuri \
I thought the evidence was admissible ; and, after the witness had
stated that he knew tlie defendant, the following question was put to
him: — "What is the defendant's general character for decency and
morality of conduct?" His reply was, "I know nothing of the
neighbourhood's opinion, because I was only a boy at school when I
knew him ; but my own opinion, and 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."
It was objected that this was not legal evidence at all of bad moral
character.
I considered that it was some evidence ; and I left the weight and
effect of it, as an answer to the evidence of good character, to be
determined by the jury.
The defendant was convicted, and is now in prison awaiting the
judgment of your Lordships.
The questions upon which I respectfully request your decision are : —
First. Whether, when witnesses have given a defendant a good
character, any evidence is admissible to contradict?
Secondly. Whether the answer made by the witness in this case
was properly left to the jury?
Sleigh, for prisoner. Firstly ; evidence is not admissible in reply to
evidence of good character. Character forms no part of the issue on
the record. [Cockbuen, C.J. Then why is evidence of character
admitted at all ?]... Secondly ; assuming that evidence of general bad
character can be given in reply, this evidence was wrongly admitted,
on the ground that evidence of general reputation only can be given,
and that nothing which amounts to an individual (^pinion can be
received. Character and reputation both mean credit derived from
public opinion or esteem. When the vvitness in this case .'^aid that he/
knew nothing of the opinion of the neighbourhood, he should have
been stopped. The best definition of character is to be found in a
speech of Erskine's, when he was counsel for Hardy', " You cannot,"v
he says, "when asking to character, ask what has A., B., C. told you
about this man's character. No; but what is the general opinion
concerning him. Character is the slow-spreading influence of opinion,
arising from the deportment of a man in society. As a man's deport-
ment, good or bad, necessarily produces one circle without another,
and so extends itself till it unites in one general opinion, that general
. 1 6 Cox dim. Cas. 284. ' 24 St. Tr. 1079.
K. 34
530 Select Cases on Criminal Law, [part hi.
opinion is allowed to be given in evidence." In Rex v. Jones ' the
wing passage occurs : —
" Mr Park (to the witness). ' During the time you did know him
(the prisoner), what was his general character for integrity 1 '
" Answer. * During the whole time I knew him I considered him
man not only of unexceptionable but of most honourable character.'
"Lord Ellenborough. * It is reputation ; it is not what a person
knows. There is hardly one question in ten applicable to the point;
it is very remarkable, but there is no branch of evidence so little
attended to.'" Individual opinion can only be given so far as it goes
to general reputation ; and a witness who has known the defendant
longest will have the best chance of knowing what his general repu-
tation is.
Tai/ler, for the Crown The prisoner, by giving evidence of cha-
racter, raises the issue that he is of such a disposition as to make it
more than ordinarily improbable that he should have committed the
otience charged against him. Character, in that sense, and reputation
do not stand on the same basis. The latter should rather be defined as
estimated character. There is no rule of law that, to make evidence of
reputation admissible, it must be founded upon the judgment of a
definite number. If, then, the judgment of ten or a less number of
men is admissible under the name of reputation, how can the judg-
ment of one only (that is, how can the estimate of disposition formed
by one man only, or, in other words, individual opinion) be excluded?...
CocKBURN, C. J There are two questions to be decided. The first
is whether, when evidence of good character has been given in favour
of a prisoner, evidence of his general bad character can be called in
reply. I am clearly of opinion that it can be. It is true that I do
not remember any case in my own experience where such evidence has
been given ; but that is easily explainable by the fact that evidence of
good character is not given when it is known that it can be rebutted ;
and it frequently happens that the prosecuting counsel, from a spirit of
fairness, gives notice to the other side, when he is in a position to
contradict such evidence. But, when we come to consider whether the
evidence is admissible, it is ordy possible to come to one conclusion.
It is said that evidence of good character raises only a collateral issue ;
but I think that, if the prisoner thinks proper to raise that issue as
one of the elements for the consideration of the jury, nothing could be
more unjust than that he should have the advantage of a character
which, in point of fact, may be the very reverse of that which he really
deserves.
1 31 St. Tr. 310.
SECT. m.J lieylna v. Rowtou. 631
Assuming, then, that evidence was receivable to rebut the evidence
of good character, the second question is, was the answer which was
given in this case, in reply to a perfectly legitimate question, such an
answer as could properly be left to the jury? Now, iu deterniinin"
this point, it is necessary to consider what is the meaning of evidence
of character. Does it mean evidence of general reputation or evidence
of disposition 1 I am of opinion that it means evidence of general
reputation. What you want to get at is the tendency and disposition
of the man's mind towards committing or abstaining from committing
the class of crime with which he stands charged ; but no one has ever
heard the question — what is the tendency and disposition of the
prisoner's mind ? — put directly. The only way of getting at it is by
giving evidence of his general character founded on his general repu-
tation in the neighbourhood in which he lives. That, in my opinion, is
the sense in which the word " character " is to be taken, when evidence
of character is spoken of. The fact that a man has an unblemished
reputation leads to the presumption that he is incapable of committing
the crime for which he is being tried. We are not now considering
whether it is desirable that the law of England should be altered —
whether it is expedient to import the practice of other countries and go
into the prisoner's antecedents for the purpose of shewing that he is
likely to commit the crime with which he is charged, or, stopping short
of that, whether it would be wise to allow the prisoner to go into
facts for the purpose of shewing that he is incapable of committing the
crime charged against him. It is quite clear that, as the law now stands,
the prisoner cannot give evidence of particular facts, although one fact
would weigh more than the opinion of all his friends and neighbours.
So, too, evidence of antecedent bad conduct would form equally good
ground for inferring the prisoner's guilt, yet it is quite clear evidence
of that kind is inadmissible. The allowing evidence of good character
has arisen from the fairness of our laws, and is an anomalous ex-
ception to the general rule. It is quite true that evidence of character
is most cogent when it is preceded by a statement shewing that the
witness has had opportunities of acquiring information upon the subject
beyond what the man's neighbours in general would have ; and in
practice the admission of such statements is often carried beyond the
letter of the law in favour of the prisoner. It is, moreover, most essential
that a witness who comes forward to give a man a good character
should himself have a good opinion of him, for otherwise he would only
be deceiving the jury; and so the strict rule is often exceeded. But
when we consider what, in the strict interpretation of the law, is the
limit of such evidence, in my judgment it must be restricted to the
34—2
532 Select Cases on Criminal Law. [part hi.
man's general reputation, and must not extend to the individual
juion of the witness. Some time back, I put tliis question — Suppose
a witness is called who says that he knows nothing of the general \
character of the accused, but that he has had abundant opportunities ^
of forming an individual opinion as to his honesty or the particular
moral quality that may be in question in the particular case. Surely,
if such e%'idence were objected to, it would be inadmissible.
If that be the true docti'ine as to the admissibility of evidence to
character in favour of the prisoner, the next question is, within what
limits must the rebutting e^^dence be confined? I think that tha
evidence must be of the same character and confined within the same
limits — that, as the prisoner can only give evidence of general good cha-
racter, so the evidence called to rebut it must be evidence of the same
general description, shewing that the evidence which has been given in
favour of the prisoner is not true, but that the man's general reputation /
is bad. In this case the witness disclaims all knowledge of the generST
reputation of the accused. I take his meaning to be this — " I know
nothing of the opinion of those with whom the man has in the ordinary
occupations of life been brought into contact. I knew him ; and so
did two brothers of mine, when we were at school ; and in my opinion
his disposition" (for that is the sense in which the word " character" is
used by the witness) "is such that he is capable of committing the
class of offences with which he stands charged." I am strongly of
opinion that that answer was not admissible. As, when a witness is
called to speak to the character of the accused, he cannot say, "I know
nothing of his general character, but I have had an opportunity of
forming an opinion as to his disposition, and I consider him incapable
of committing this offence : " so here, when the witness declared that
he knew nothing of the general character of the accused, but that in
his opinion the prisoner's disposition was such as to make it likely
that he would commit the offence in question — applying the same
principle — the answer was inadmissible. But, if an objectionable
answer is given to an unobjectionable question, the judge who pre-
sides at the trial should stop the answer before it is completed, or, if
that is impossible, should tell the jury that they must withdraw it
from their consideration; and then the answer would not prejudice
the case. Here, however, it was not so. The learned Judge expressly /
left the answer to the jury, and directed them to take it into account |
and balance it against the evidence of character given in favour of the I
prisoner. That being so, the answer became a part of the case, and I
cannot be treated as an objectionable answer inadvertently given to an|
unexceptionable question....
SECT. III.] Regina v. Roiuton. 533
I admit that negative evidence, such as "I never heard anything
against the character of the man," is the most cogent evidence of
a man's good cliaracter and reputation ; because a man's character is
not talked about till there is some fault to be found with it. It is the
best evidence of his character that he is not talked about at all' ; ant
in that sense such evidence is admissible.
WiLLES, J. Only the prisoner can raise the question of character.
Such evidence is strictly relevant to the issue ; but it is not admissible
on the part of the prosecution. Because, if the prosecution were
allowed to go into such evidence, we should have the whole life of the
prisoner ripped up ; and upon a trial for murder you might begin by
shewing that, when a boy at school, the prisoner had robbed an
orchard, and so on through the whole of his life; and the result
w^ould be that the man on his trial might be overwhelmed by
prejudice The ultimate fact to be arrived at by such evidence
is that the prisoner's disposition is good and not evil. You can,
no doubt, go into the question of reputation, and inquire as to the
opinion of others concerning the man. But I apprehend that his
disposition is the principal matter to be inquired into ; and that his
reputation is merely accessory and admissible only as evidence of
disposition. And, when it is stated that general evidence is alone
admissible, that, in my opinion, does not mean merely general evidence
of the opinion of others as to the prisoner's character, but general
evidence of the disposition of the man. (Evidence of particular facts
is excluded, because a robber may do acts of generosity; and the proof
of such acts is therefore irrelevant to the question whether he \\a3
likely to have committed a particular act of robbery.)...
According to the experience of mankind one would ordinarily
rely rather on the information and judgment of a man's intimates than
on general report; and why not in a court of law? It is said in
answer that we are to be guided by the practice. But I apprehend
that the practice is not merely to call persons to say that a man has a
good character in the neighbourhood, but also to call his master or the
people with whom he has been acquainted to say what character he
has borne in their judgment and what is his disposition.
[Of the thirteen Judges who heard the appeal, all except Erlb,
C.J., and WiLLES, J. concurred in the opinion of Cockburn, C.J.]
Conviction quashed.
^ [Editor's Notb. "Hers is the greatest glory whose name is least talked of by
men either ill or well"; Pericles, in Thucyd. u. 45.]
bS-i Select Cases on Criminal Law. [part m.
Chapter VIII. Privilege.
[Counsel and solicitors are not even permitted to disclose matters
confided to them hy their clients.^
REX V. WITHERS AND OTHERS.
Westminster N. P. Sittings. 1811. 2 Campbell 578.
This was an indictment for breaking open the house of one Copland,
the prosecutor, and assaulting and imprisoning his person.
On the part of the defendants, Mr Phillipson, an attorney, was called
to state that, the same day the assault was committed, the prosecutor
consulted him professionally and gave an account of the transaction
materially at variance with his testimony in the witness-box ; and
that on the same occasion a Mr Bruce, who accompanied him, had
in his hearing directed Mr Phillipson to bring an action of trespass
against the defendants, for breaking and entering the house now
represented to be the prosecutor's, as the house of him Mr Bruce.
It was objected that the whole that passed between INIr Phillipson,
and the prosecutor and Bruce, on this occasion, was privileged on the
score of professional confidence.
Garrow, for the defendants, insisted that at any rate the privilege
could not extend to what was said by Bruce, in the prosecutor's
hearing ; that this was a communication by a third person to his
attorney; and as Bruce was no party to this prosecution, no objection
could be made on his behalf to the disclosure. But
Lord Ellenborough said, that an attorney is not at liberty to
disclose what is communicated to him confidentially by a client,
although the latter be not in any shape before the Court; and
Mr Phillipson was not permitted to be examined.
[Editor's Note. In the case of Wilson v. Rastall (4 T. E. 759) Buller, J.,
Bays: — " The privilege is confined to the cases of Counsel, Solicitor, and Attorney;
and, in order to raise the privilege, it must be proved that the information, which
the adverse party wishes to learn, was communicated to the witness in one of
those characters; for if he be employed merely as a stetoard, he may be examined.
It is indeed hard in many cases to compel a friend to disclose a confidential
conversation ; and I should be glad if by law such evidence could be excluded.
It is a subject of just indignation where persons are anxious to reveal what has
been communicated to them in a confidential manner; and in the case of Mr
Petrie's trial at Salisbury for bribery, where Reynolds, who had formerly been the
iittoruey of Mr Petrie but who was dismissed before the trial of the cause, wished
to give evidence of what he knew relative to the subject iuhile he was concerned a$
the attorney, I strongly animadverted on his conduct, and would not suffer him to
be examined. He had acquired his informatioii during the time that he acted as
SECT. III.] Rex V. Withers and others. 535
attorney; and I thought that the privilege of not being examined to such points
was the privilege of the party, and not of the attorney: and that the privilege
never ceased at any period of time. In such a case it is not suflicient to say that
the cause is at an end. The mouth of such a person is shut for ever. I take the
distinction to be now well settled, that the privilege extends to those three
enumerated cases at all times, but that it is confined to these cases only. There
are cases, to which it is much to be lamented that the law of privilege is not
extended; those in which medical persons are obliged to disclose the information
which they acquire by attending in their professional character."]
[ Witnesses have the privilege of refusing to answer any question
which tends to criminate themselves.^
THE QUEEN v. BOYES.
Queen's Bench. 1861. 1 Best and Smith 311.
[This was an information filed by the Attorney General in pur-
suance of a resolution of the House of Commons, for bribery at a
Parliamentary election at Beverley.]
On the trial, before Maetin, B., at the Yorkshire Summer Assizes
in 1860, the Solicitor General, in opening the case for the Grown,
stated that the evidence upon which the case for the prosecution rested
would be the evidence of the persons who had received the bribes,
whom he should call as witnesses. Accordingly John Best, mentioned
in the first count, was called ; and the learned Judge told him that, by
the law of England, no man was bound to state anything which
subjected him to a criminal prosecution ; and, if he was asked any
question with respect to the alleged bribery, he might say whether he
would or would not answer it, at his pleasure. The witness, upon
being asked whether he knew the defendant, declined answering the
question. The Solicitor General then produced a pardon of the witness,
under the Great Seal, and handed it to him Similar pardons were
also given to the other witnesses. It appeared from the evidence of
the witnesses that on the day of the election they came to the front of
a house which stood between and opened into two parallel streets of
the town of Beverley, and went in succession into the house, and into
a back room, in which the defendant was seated ; after an interview
with the defendant each of them passed into another room, in which
another person was seated, from whom each received the sums men-
tioned in the several counts of the information ; they then passed into
536 Select Cases on Criminal Law. [part hi,
the other street, and so to the hustiiiLi;s, and voted. At the close of
the case for the prosecution, the counsel for the defendant took several
objections ; and, among others, that there was no corroborative evi-
dence of the witnesses, who were all accomplices with the defendant,
and that the Judge ought to tell the jury that they ought not to
convict on the uncorroborated testimony of the accomplices, citing
Regina v. Sttibhs \ The learned Judge said that he was not prepared
to take that course, but that he would reserve leave to the defendant
to move for a new trial, on the ground that he was wrong in
compelling the witnesses to answer, and on the ground of the absence
of corroboration
The jury found a verdict of guilty on the third count, and not
guilty on the others.
*****
Edward James moved for a new trial. The other side assume
that a pardon restores the party to the same state as he was in
before any offence committed. But the pardoned man may be in-
dicted and put to the inconvenience of pleading his pardon ; for
unless pleaded it is of no avail; Com. Dig. Pardon H. Moreover
a pardon may be revoked. Besides, although the Crown may pardon
an offence as regards itself, it cannot take away the right of a subject
to prosecute for the offence. It is for this reason that the Crown
could not pardon in appeals of murder, and the like, for the appeal
was the suit of a subject. Supposing, however, that the pardon
makes the party a new man so far as prosecution by or in the name of
the Crown is concerned, he is still liable to be proceeded against by
impeachment, at the suit of the House of Commons, before the House
of Lords. When the House of Commons impeached Lord Danby, the
Crown, pending the impeachment, granted him a pardon ; but the
Commons denied the right of the Crown to do so (2 Hallam's Const.
Hist. vol. 2, p. 411, 7th ed.); and afterwards it was enacted by the Act
of Settlement, 12 and 13 W. IIL c. 2, s. 3, entitled "An Act for the
further limitation of the Crown, and better securing the rights and
liberties of the subject," that no pardon of the Crown should be plead-
able to an impeachment by the Commons in Parliament; 4 Blackst. C.
399. A pardon from the Crown, in order to be available in such
a case, must be granted after trial of the impeachment, not while the
impeachment is pending.
As to the point relating to accomplices, the Judge should have
advised the jury to acquit unless the accomplice was corroborated ;
Regina v, Stubba K
1 Dears C. C. 555.
SECT. III.] The Queen v. Boycs. 587
WiGHTMAN, J. With respect to tlie questions relative to the
accomplice ; even supposing that the witness here could be considered
as an accomplice of the defendant, I think the learned Judge's direction
at the trial was quite right. The law on this suVyect is correctly laid
down in Regina v. Stuhbs \ — it is not a rule of laio that an accomplice
must be corroborated in order to render a conviction valid ; but it is a
rule of general and usual practice to advise juries not to convict on the
evidence of an accomplice alone. The application of that rule, however,
is a matter for the discretion of the Judge by whom the case is tried, and
here he appears to have drawn tlie attention of the jury to the point.
Moreover I tliink there was corroborative evidence here, if corrobora-
tive evidence is requisite. It is not necessary that there should be
corroborative evidence as to the very fact ; it is enough that there be
such as shall confirm the jury in tlie belief that tlie accomplice is
speaking truth
Hill, J. I am of the same opinion. In the application of the
rule respecting accomplices much depends on the nature of the crime
and the extent of the complicity of the witnesses in it. If the crime
is a very deep one, and the witness so far involved in it as to render
him appai-ently unworthy of credit, he ought to be corroborated. On
the other hand, if the offence be a light one, as in Rex v. Hargrave ^
which has been referred to, where the nature of the offence and extent
of the complicity would not much shake his credit, it is otherwise. . . .
CocKBURN, C.J....The pardon took away the privilege of the witness
so far as regarded any risk of prosecution at the suit of tlie Crown ;
but it was objected... that the privilege of the witness still existed in
this case, on the ground that the witness, though protected by the
pardon against every other form of prosecution, might possibly be
subject to parliamentary impeachment. In support of this proposition
it was urged, on behalf of the defendant, that bribery at the election of
members to serve in Parliament being a matter in which the House of
Commons would be likely to take a peculiar interest as immediately
affecting its own privileges, it was not impossible that, if other remedies
proved ineffectual, proceedings by impeachment might be resorted to.
It was also contended that a bare possibility of legal peril was suf-
ficient to entitle a witness to protection : nay, further, that the witness
was the sole judge as to whether his evidence would bring him into
danger of the law : and that the statement of his belief to that effect,
if not manifestly made mala fide, should be received as conclusive.
With the latter of these propositions we are altogether unable to
concur. Upon a review of tlie authorities, we are clearly of opinion
1 Dears C. C. 555. » 5 C. and P. 170.
34—5
638 Select Cascfi on Criminal Law. [part hi.
that the view of the law propounded by Lord Wensleydale, in Osborn
V. 2^he London Dock Company \ and acted upon by V. C. Stuart, in
Sidehottom v. Aikins', is the correct one; and that, to entitle a party
called as a witness to the privilege of silence, 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. We indeed
quite agree that, if the fact of the witness being in danger be once
made to apjiear, great latitude should be allowed to him in judging for
himself of the eflect of any particular question : there being no doubt,
as observed by Alderson, B., in Osborn v. The London Dock Company,
that a question which might appear at first sight a very innocent one,
might, by affording a link in a chain of evidence, become the means of
bringing home an offence to the party answering ^ Subject to this
reservation, a judge is, in our opinion, bound to insist on a witness
answering unless he is satisfied that the answer will tend to place the
witness in peril.
Further than this, we are of opinion that the danger to be appre-
hended must be real and appreciable, with reference to the ordinary
operation of law in the ordinary course of things — not a danger of an
imaginary and unsubstantial character, having reference to some
extraordinary and barely possible contingency, so improbable that no
reasonable man would suffer it to influence his conduct. We think
that a merely remote and naked possibility, out of the ordinary course
of the law and such as no reasonable man would be affected by, should
not be suffered to obstruct the administration of justice. The object
of the law is to afford to a party, called upon to give evidence in
a proceeding inter alios, protection against being brought by means of
his own evidence within the penalties of the law. But it would be to
convert a salutary protection into a means of abuse if it were to be
held that a mere imaginary possibility of danger, however remote and
improbable, was sufficient to justify the withholding of evidence essen-
tial to the ends of justice.
Now, in the present case, no one seriously supposes that the witness
runs the slightest risk of an impeachment by the House of Commons.
No instance of such a proceeding in the unhappily too numerous cases
» 10 Exch. 698, 701. * 3 Jur. N. S. 631.
' [Editoe's Note. So in Fishery. Eonalds (12 C. B. 7G5) Maule, J., suys: —
"The witness might be asked, ' Were you in London on such a day?' and though
ajipareutly a very simple question, he might have good reason to object to answer
it, knowing that, if lie admitted that he was in London on that day, his admission
might complete a chain of evidence against him which would lead to his conviction."]
SECT. III.] The Qneen v. Boyc^. 639
of bribery whicli have engaged the attention of the House of Commons
has ever occurred, or, so far as we are aware, has ever been thought of.
To suppose that such a proceeding would be applied to the case of this
witness would be simply ridiculous; more especially as the proceeding
by information was undertaken by the Attorney General by the
direction of the House itself, and it would tliercfore be contrary to all
justice to treat the pardon (provided in the interest of the prosecution
to ensure the evidence of the witness) as a nullity, and to subject him
to a proceeding by impeachment.
It appears to us, therefore, that the witness in this case was not, in
a rational point of view, in any the slightest real danger from the
evidence he was called upon to give, when protected by the pardon
from all ordinary legal proceedings ; and that it was therefore the duty
of the presiding Judge to compel him to answer.
[Editor's Note. The ruling in this case — that the Judge is not bound to accept
the witness's statement, but may decide for himself wbelher under all the circum-
stances of the case the proposed question has really a tendency to criminate }iim —
was considered and confirmed in Ex parte lieyiwlds, L.E. 20 Gh. D. 2'J4.]
\_B^d medical advisers have no p7-ivilege of re/using to disclose matters
confided to them hij their 2}citie'nts.^
[See Rex v. Gibbons, supra p. 524.]
Chapter IX. Accomplices.
[It is usually desirable that the evidence of an Accomplice should be
corroborated.^
[See Regina v. Boyes, sujjra p. 535.]
640 Select Cases on Criminal haw. [part hi.
[Though such corroboration is never absolntoly necessary.^
THE KING V. ATWOOD AND ROBBINS.
CRO^YX Case Reserved. 1787. 1 LE.\cn 464,
At the Summer Assizes at Bridgowater, in the county of Somerset,
in the year 1788, James Atwood and Thomas Bobbins were tried before
Mr Justice Buller for a robbery on the highway.
The prosecutor deposed that on the day laid in the indictment he
was met by three men, who, after using him with violence and
threatening his life, demanded his money ; and that in consequence of
their threats he delivered to them the property mentioned in the indict-
ment ; but that it was so dark at the time, he could not swear that the
prisoners at the bar were two of the men who robbed him.
An accomplice was, under this circumstance, admitted to give his
testimony ; and he deposed that he and the two prisoners at the bar
had, in the company of each other, committed this robbery.
The jury, upon the evidence of these two witnesses, found the
prisoners guilty ; but the judgment was respited, and the case sub-
mitted to the consideration of the twelve Judges.
On the first day of JNlicliaelmas Term, 1788, the Judges assembled
at Serjeants' Inn Hall to consider of the propriety of this conviction.
Mr Justice Buller, at the next Spring Assizes, held at Taunton,
ordered the two prisoners to be put to the bar; and addressed them, in
substance, as follows : " Prisoners, you were convicted of a highway
robbery at the last Summer Assizes. ... My doubt was, whether the
evidence of an accomplice, unconfirmed by any other evidence that
could materially affect the case, was sutHcient to warrant a conviction'?
— And the Judges are unanimously of opinion that an accomplice alone
is a competent witness ; and that, if the jury, weighing tlie probability
of his testimony, think him worthy of belief, a conviction supported by
such testimony alone is perfectly legal. The distinction between the
competency and the credit of a witness has been long settled. If
a question be made respecting his competency, the decision of that
question is the exclusive province of the Judge ; but if the ground of
the objection go to his credit only, his testimony must be received and
left with the jury, under such directions and observations from the
Court as the circumstances of the case may require, to say whether they
think it sufficiently credible to guide their decision on the case. An
accomplice, therefore, being a competent witness, and the jury in the
present case having thought him worthy of credit, the verdict of
' See the case of The King v. Durham and Crowder, 1 Leach 478.
SECT. III.] The King v. Ativood and Bobbins. 541
Guilty, which has been found, is strictly legal, though found on the
testimony of the accomplice only.
[What kind of confirmation is effective.']
REX V. WILKES AND EDWAKDS.
Oxford Assizes. 1836. 7 Cakuington and Payne 272.
The prisoners were charged with stealing a lamb, tlie property of
Robert Pratt,
On the part of the prosecution an accomplice, named Gardner, was
called. He proved the case against both prisoners, and stated that
they threw the skin of the lamb into a whirley hole, the situation
of which he described.
To confirm his evidence a constable, named Hutchinson, was called,
who proved that he found tlie skin in the whirley hole.
Alderson, B. There is a great difference between confirmations as
to the circumstances of the felony, and those which apply to the indi-
viduals charged ; the former only prove that the accomplice was present
at the commission of the offence ; the latter shew that the prisoner was
connected with it. This distinction ought always to be attended to.
It was proved that in the house of the prisoner Edwards, a quantity
of meat was found of a kind corresponding with that of the stolen
lamb, but could not be positively identified ; and it was proved by
a witness named Meek, that the prisoner Wilkes had come to him to
borrow a pair of shears, and had then made a statement to him to the
same effect as the evidence of the accomplice.
Alderson, B. (in summing up). (1) The confirmation of the
accomplice as to the commission of the felony is really no confirmation
at all ; because it would be a confirmation as much if the accusation
were against you and me, as it would be as to those prisoners who are
now upon their trial. The confirmation which I always advise juries
to require, is a contirmation of' the accomplice in some fact which goes
to fix the guilt on the particular person charged. You may legally
convict on the evidence of an accomplice only, if you can safely rely on
his testimony; but I advise juries never to act on the evidence of an
accomplice, unless he is confirmed as to the particular person who is
charged with the oflence. (2) With respect to the prisoner Edwards,
it is proved that meat of a similar kind was found in his house. The
542 Select Cases on Criminal Law. [part hi.
meat cannot be identitied, but it is similar : that is, therefore, some
confirmation of the accomplice as to Edwards more than any one else.
It is also proved that the skin was found in a whirley hole : that is no
confirmation, because it does not affect the prisoners more than it
affects any other persons. (3) With respect to the prisoner Wilkes, it
is proved, by the witness Meek, that the prisoner Wilkes told him
nearly the same story as the accomplice has told you to-day. If you
believe that witness, there is confirmation of the accomplice as to the
prisoner Wilkes.
You will say whether, with these confirmations, you believe the
accomplice or not. If you think that his evidence is not sufficiently
confirmed as to one of the prisoners, you will acquit that one ; if you
think he is confirmed as to neither, you will acquit both ; and if you
think that he is confirmed as to both, you will find both guilty.
The jury found both the prisoners guilty.
\What kind of confirmation is useless.^
REGINA V. PRATT.
Hertford Assizes. 1865. 4 Foster and Fjnlason 315.
Indictment for feloniously receiving certain goods, knowing them
to have been stolen
Two bushels of wheat were stolen on January 21st, 1865. On the
same day the property was found on prisoner's premises, who was
a carpenter, living near to the prosecutor. The only express evidence
to prove the rest of the case was that of the thief; who was called for
the prosecution.
Pollock, C.B. There is no evidence here, either of the theft, or of
the guilty knowledge, except that of the thief. He proves the theft ;
he proves the possession (for the mere fact of the goods being on the
prisoner's premises, which might be without his knowledge or assent,
does not prove possession, much less receiving by him) ; and he proves
the guilty knowledge. There is nothing to confirm him, except a fact
which is quite consistent with the falsity of his story ; for he might
have put the goods on the prisoner's premises without his knowledge.
The evidence, therefore, is not such as would make it safe or proper to
convict, and the jury ought to acquit.
SECT. III.] The King v. Yewin. 643
Chapter X. Discrediting a Witness.
[ Wlien cross-examined as to his own discreditable conduct, his answers
are final,^
REX V. YEWIN.
Monmouth Assizes. 1811. 2 Campbell 637.
Yewin was indicted for stealing wheat. The principal witness
against him was a boy of the name of Thomas, his apprentice.
The prisoner's counsel asked Thomas, in cross-examination
(1) whether he had not been charged with robbing his master; and
(2) whether he had not afterwards said he would be revenged of him
and would soon fix him in Monmouth gaol. He denied both. The
prisoner's counsel then proposed to prove that he had been charged
with robbing his master, and had spoken the words imputed to him.
Lawrence, J. His answer as to the former fact must be taken' ;
but [as to the latter] , as the words alleged are material to the guilt or
innocence of the prisoner, evidence may be adduced that they were
spoken by the witness.
1 [Editor's Note. "Had this been a matter in issne, I would have allowed
you to call witnesses to contradict him. But it is entirely collateral, and you
must take his answer. I will permit questions to be put to a witness as to any
improper conduct of which he may have been guilty, for the purpose of trying
his credit; but when these questions aro irrelevant to the issue on the record, you
cannot call other witnesses to contradict the answers he gives. No witness can be
prepared to support his character as to particular facts; and such collateral in-
quiries would lead to endless confusion." Per Lawrence, J., in Harris v. Tippett
(2 Camp. 637) ; a case in which, however, the accepted rule, thus admirably laid
down, was applied to an answer that perhaps fell more properly within the doctrine
of Thomaa v. David, infra, p. 544.]
5^^ Select Cases on Criminal Law. [part hi.
[But not when eross-examined as to his bias in the particular
litigation.^
THOMAS V. DAVID.
Carmarthen Assizes. 1836. 7 Carrinqton and Payne 350.
Action against the defendant as the maker of a promissory note.
Plea — that the defendant did not make the note.
A witness on the part of the plaintiff, who was his female servant,
and who was one of the attesting witnesses to the defendant's signature
of the promissory note, was asked on cross-examination whether she did
not constantly sleep with the plaintiff. She said that she did not....
On the part of the defendant several witnesses were called ; and one of
them (Edward Lloyd) was tendered to prove the fact which the servant
had denied....
Evans, for plaintiff. I submit that the evidence of this witness is
not admissible; because the point upon which he is called to contradict
the witness for the plaintiff is collateral to the issue.
Coleridge, J. Is it not material to the issue, whether the principal
witness who comes to support the plaintiff's case is his kept mistress ?
If the question had been whether the witness had walked the streets as
a common prostitute, I think that that would have been collateral to
the issue, and that, had the witness denied such a charge, slie could
not have been contradicted. But here the question is, whether the
witness had contracted such a relation with the plaintiff as might
induce her the more readily to conspire with him to support a forgery ;
just in the same way as if she had been asked if she was the sister or
daughter of the plaintiff, and had denied that. I think that the con-
tradiction is admissible.
The witness Edward Lloyd was examined, and stated that the
witness in question slept constantly with her master.
Verdict for the defendant.
INDEX
Accessoi-y : see Modes of participatin<i
Accomplice : see Modes of particiyatuKj
evidence of, 539-542
Animals^, negligence as to, 120
Appropriation by bailee : see Larcemi,
223-237
Assault, 146-152 ; 497
force allowed in constable's duties, 116
in self-defence, 147
in removing trespasser, 148
limits to self-defence, 149-152
evidence as to what was said, 497
Attempt, 85-88
at an Impossibility, 88
Bailee, Appropriation by : see Larceny
Battery : see Assault
Bigamy, 423-432
second marriage otherwise invalid, 423
mistaken belief that spouse dead, 15
evidence and burden of proof, 426-429
conflict of presumptions, 429
burden of proof as to the marriage, 459
Burden of proof, 471-475
Usually on atKrmant, 471
But not if negative avers a crime, 471-
474
unless affirmative best proveable by
accused, 474
burden of proof as to infant's mens
rea, 41-43
See Presumptions, passim, 446-470
Burglary, 160-179
must be of a Dwelling-house, IfiO
what is a dwelling-house, 161-165
there must be a Breaking, 165
what is sufficient Breaking, 166-172
Constructive breaking, 169-172
what is sufficient Entry, 172-175
insertion of instrument, 173-175
Intention to commit a felony, 175,
176
but not a mere misdemeanour, 176,
177
not a mere breach of trust, 177
This intent must exist at Breaking,
178
Presumption from possession of
property stolen, 466
Character : see Evidence
Conspiracy, 398-415
constituted by mere Agreement, 398
objects of indictable agreement, 399-
401
agreements injurious yet not indict-
able, 405
more than one conspirator necessary,
407
how i)roved, 408
insullicient proof, 409
wide range of evidence, 409-411
nature, and evidence, of Conspiracy,
412
Contract, breach of, 1, 2
Corporations, 69
Coverture, 64-68
husband's presence may excuse, 64
but not in the gravest crimes, 06
nor where wife the more active, 60
Damnum sine injuria, 1
Degrees of participation in crime : see
Modes of participating
Duress, 56-61
fear of death may excuse, 56
but no lesser fear, 57
D\Velling-house, what it is, 161-165
Embezzlement, 304-323
distinguished from Larceny, 304-305
statutory enactment, 306
who is a Servant, 306-310
what can be embezzled, 311-321
not earnings from unauthorised
dealings, 311-313
otherwise if dealings authorised, 314
forging master's cheque, 315
cashing cheques belonging to master,
316
property obtained throui,'h fellow-ser-
vant from master, 318
through fellow-servant, from stranger,
319
delivery to master before appropria-
tion, 305, 320, 321
proof of appropriation, 323, 324
Evidence, 475-514
Eelevancy. 479-490
to the points in issue, 479
in trials for ct>nspiracy, 409-411
evidence of prisoner's other crimes,
481-490
Leading questions, 490, 491
inadmissible in examination in chief,
490
546
Select Cases on Cr'tminal Law.
but not in cross-examination, 491
Writings, 492-494
contents not proveable by Oral evi-
dence, 492
It suffices for other chattels, 492
Or for condition of a writing, 494
Hearsay, 494-520
usually is not evidence, 494-497
otherwise if it is, or qualifies, a fact
in issue, 497
or describes speaker's feelings, 498-
501
but not if describing past conduct,
501
complaints of prosecutrix, 503
admissions of party against himself,
506, 507
made during infancy, 508
admission by silent conduct, 509-511
statement by person, now dead, against
pecuniary interest, 511-513
by person, now dead, in course of duty,
514, 515
dying declaration by person slain, 515-
520
Confessions, 521-528
inadmissible after Inducement con-
nected with prosecution, 521
inducement by person unconnected
with prosecution, 524
inducement by religious appeal, 525
Temporal Inducement unconnected
with result of trial, 527
evidence of Character, 528-533
Privilege, 534-539
counsel and solicitors, 534
criminating questions, 535
medical advisers, 524
Accomplices, 539-542
corroboration desirable, 539
but not absolutely necessary, 540
effective and ineffective, 541, 542
Discrediting a witness, 543, 544
witness's answers usually final, 543
but not as to Bias, 544
evidence as to Insanity, 49, 50
evidence as to Conspiracy, 408-415
evidence as to Perjury, 422
Circumstantial evidence in Murder,
449, 450
evidence to rebut presumption of
Innocence, 450-454
False pretences, 823-358
statutory definition, 323
the Pretence, 323-339
of an Existing Fact, 323-325
of a merely mental state, 326-332
fact or opinion, 331
representations implied, 333-339
the Obtaining, 339-347
obtaining must follow the pretence,
339
and be caused by it, 310
and not caused too remotely, 34?
lapse of time, 344
the Right obtamed, 347-358
not mere right to possession, 347
ownership obtained, 348
ownership to jmss only on a condition,
249-253
unauthorised agent, 254
the Subject-matter of the right, 355-
359
must be personal property, 355
and larcenable, 357
Felonious intent, 106-110; 175-179:
223 ; 284-292
Forgery, 179-211
the document, 179-187
forgery by ante-dating, 188
by exceeding an agent's authority, 191
by using imaginary name, 195
or even one's own name, 197
assumed name not necessarily forgery,
199
nor false oralstatemeut about a writing.
200
intent to defraud usually necessary,
202
where no fraud possible, no forgery,
205
intent to defraud but not to cause loss,
208
intent to obtain your due, 209
Hearsay : see Evidence
High Treason : see Treason
Homicide : see also Suicide, Murder,
Manslaurihter
when not a crime, 136-143
by mere accident, 136, 137
in self-defence, 137-139
or defeuce of near relation, 140
self-defence when retreat possible, 141,
142
in effecting arrest, 143
declarations of person slain, 515 -
.-.20
Housebreaking : see Burglary, 165-179
Ignorance
of fact, 27, 28
of law, 29
See Mens Hea
Inchoate Crimes, 83-88
Incitements, 83
Infancy, 41-43
infant above seven capable of crime,
41
but until fourteen presumably in-
capable, 41-43
Insanity, 43-53
some forms may excuse, 43-48
how proved, 48
insane Impulse, 50-52
Index.
b-^1
Intoxication, 54-5(5
compatible with mens rea, 54
but may shew mistake of fact, 54
or disprove a special mens rea, 55
Jury
determining negligence in Homicide,
122
function in Libel trial, 444
methods of forming verdict, 467
Larceny, 211-304
Taking is essential, 211, 212
taking by act of owner's agent, 213
by present possessor, 214
by mere custodian, 216-218, 225
Carrying Away essential, 218-222
slightest asportation sullices, 219,
220
goods need not be retained, 220-222
Appropriation by a Bailee, 223-237
is not a taking, 223-225
unless bulk broken first, 223-225
statutory enlargement of larceny,
226 (note)
bailees who must deliver identical
thing, 227-229
bailments of cash, 229
what creates such bailment, 231
con version must bequiteinconsistent
with the bailment, 235
pawning may be, 236
selling after bailment ended, 237
No larceny of Real Property, 238-244
even what originally was personal,
238
unless Realty merely by a fiction , 239
realty rendered personalty by the
theft, 241-244
No larceny of what has no Value, 244
but the slightest value suffices, 245-
248
No larceny of things having No Owner,
249
ownership of living things, 249
defeasible ownership, 251
mere right to possession, 253, 254
ownership created by theft, 255
No larceny if Claim of Right, 250-283
ov.ncr's consent, 259, 266
consent in order to detect, 260
consent through intimidation, 262
consent through fraud, 264
larceny by a Trick, 265
owner's consent, 266
owner's wife's consent, 274, 275
finder of a lost article, 276-280
taker's claim of ownership, 280, 281
claim to equivalent, 282
claim of lien, 281
the necessary Intention, 284-304
intent to acquire temporary jjosses-
eion, 284
intent wholly inconsistent with true
possessor's interest, 285
ignorance of law, 287, 288
wionpfiil intent necessary at time
of appropriation, 288-292
mutual mistake, 202-304
stealing by a Wife or by a Partner,
367-369
Possession of goods recently stolen,
464-470
Leading questions : see Evidence
Libel, 432-445
nature of the ofifence, 432
libel without words, 434
Oral defamation, 436, 437
publication to person libelled, 437,
438
truth as a defence, 438
publication in Parliament, 440
fair comment on matter of public
concern, 441
publication invited by person defamed,
441
to person having a joint interest, 441
reports of judicial proceedings, 442
functions of judge and jury, 444
Malice, 13-69, 100-120, 144-146,152-160
Malicious offences against property, 152-
160
what Malice is necessary, 152-160
Manslaughter : see Murder
Master and Servant, 35-40
Mayhem : see Assaidt
Mens Rea, 13-73
essential to crime, 13-20
slight, sufiices, 20
may exist, though crime not intended,
20-26
may be excluded by ignorance of fact,
26-28
if the ignorance be reasonable, 28
but not by ignorance of law, 29
nor by religious motive, 31
in certain crimes a less mens rea
suffices, 32
servant's unauthorised act, 35
servant's act in ordinary couise, 38
servant obeying without mens rea, ;!9
See also Infuncy, Insanitij, Intoxicu'
tion, Perjury
Mental element in crime: see Metis Bea
Mistake : see Ignorance
Modes of participating in a crime, 73-ss
principals in first and second degree,
73-78
accessory before the fact, 78-82
accessory after the fact, 82
Murder and Manslaughter, 91-135
the external act, 91-100
the King's Peace, 91
prisoner's act not immediate cause of
death, 92-100
548
Select Cases on Criminal Law.
the mental state in Murder, 100-110
intent to kill, 100, 102
intent to do unlawful dangerous act,
103, lOi
dangerous excess in lawful act, 105
intent to commit a felony, 106-110
the mental state in Manslaughter,
111-135
intent to do grievous harm on sudden
provocation, 111-115
inteut merely to hurt, 116-120
mere negligence, 120-135
high degree of negligence necessary,
120
the question of degree is for jury, 122
negligence with regard to firearms,
122, 123
improper medical treatment, 124
negligence in lawful but dangerous act,
125
dangerous animals, 126
driving, 130
lawful games, 131
mere omission, 132
negligence, when too remote, 133, 134
where diligence would not have averted
the death, 134
contributory negligence, 185
homicide by infant under fourteen,
41-43
circumstantial evidence of murder,
449, 450
Necessity, 61
Overt act : see Treason
Participation : see Modes
Penalty
sued for by private informer, 4
sued for by public official, 7
Perjury, 415-423
a crime, 415
in a judicial proceeding, 416
extra-judicial false oath, 417
pci j u ry must be material to proceeding,
418
what may be material, 419
mens rea necessary, 421
what evidence required, 422
Possession of goods recently stolen : see
Presumptions
Presumptions, 446-470
against the commission of crime,
44(;-4o0, 459
evidence to rebut presumption of
innocence, 450-454
statutory presumptions of mens rea,
454
niHPter's liability for servant's act,
454
presumption against immorality, 458
rit^ esse acta, 460-463
due licence, 460
due ajDpoiutment of official, 461
fulfilment of statutory condition, 461
Natural Consequences of a man's act,
463, 464
Continuance of existing state of things,
464
possession of goods recently stolen,
464-470
See also : Burden of proof
Principal : see Modes of participating
Receiving stolen goods, 359-369
the goods must already have been
stolen, 359
and not yet returned to owner, 360
aud must have reached prisoner's
possession, 361
and been received with guilty know-
ledge, 364
a felony, if original taking a felony,
367
common law and statute, 369
possession of goods recently stolen,
464-470
Remoteness of a cause of death, 92-100 ;
133
Riot : see Unhtwful Assembly
Self-defence, 137-143, 147-152
Statutory ofi'euces against the person,
144-146
the kind of intent necessary, 144
Suicide, 89
Tort, 2-4, 116, 117, 176
Treason, 309-379
constructive compassing the king's
death, 369
constructive levying of war, 370
what amounts to war against king,
372-375
adhering to king's enemies, 375
what amounts to an overt act, 377-
379
Trtas(),i-felony, 379-384
what it is, 379
how proved, 380
Unlawful Assembly and Riot, 884-397
Riot by statute aud common law, 384
Riot and Unlawful Assembly distin-
guished, 387
what renders assemblies unlawful,
388-394
magistrate's power of suppressing,
394
his duty of suppressing, 396
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