PRINCIPLES
OF
iHE CRIMINAL LAW
A CONCISE EXPOSITION OF THE NATURE OF CRIME,
THE VARIOUS OFFENCES PUNISHABLE BY THE ENGLISH LAW,
THE LAW OF CRIMINAL PROCEDURE,
AND THE LAW OF SUMMARY CONVICTIONS.
TABLE OF OFFENCES, THEIR PUNISHMENTS,
AND STATUTES.
BY
SEYMOUR F. HARRIS, B.C.L., M.A. (Oxon.),
AUTHOB OF "a concise DIGEST OF THE INSTITUTES OF GAIUS AND JC8TIHIAN.
THIRTEENTH EDITION.
BY
a'. M. WILSHERE, M.A., LL.B.,
OF GRAY'S INN AND THE WESTERN CIRCUIT, BABRI8TEB-AT-LAW.
LONDON :
SWEET AND MAXWELL, LIMITED,
3 CHANCERY LANE.
TORONTO: I SYDNEY. N.S.W.:
THE CARSWELL CO., ' LAW BOOK CO. OF AUSTRALASIA,
LIMITED. I LIMITED.
1919.
PRINTED BT
THE EASIERN PRESS. LTD.,
LONDON AND RHADINU.
PREFACE TO THE THIRTEENTH EDITION.
The alterations in this edition are A'ery numerous and have
necessitated the re-Avriting of a considerable part of the book.
The last edition was published in 1912, and since its
publication there have been many additions to the complicated
mass of statutes which goes to make up the Criminal Law.
If statute law continues to increase at the present rate without
any serious attempt at codification it will soon be impossible to
produce a work of this size which will not, for any practical
purposes, be valueless owing to the extent of the omissions.
Although the present edition covers more ground than the
last the size of the book has been slightly reduced. This has
been effected by the use of a different method of printing
and by the deletion of some obsolete matter and unnecessary
repetitions.
A. M. WILSHEItE.
1 Elm Court, Temple.
June, 1919.
CONTENTS.
PAOK
Table of Statutes xi
Table of Cases xxi
BOOK I.
I. INTRODUCTORY CHAPTER. CRIME, DIVISIONS OF
CRIME 1
II. ESSENTIALS OF A CRIME 9
III. PERSONS CAPABLE OF COMMITTING CRIMES 14
IV. PRINCIPALS AND ACCESSORIES 25
BOOK II.
PART I.
OFFENCES OF A PUBLIC NATURE.
I. OFFENCES AGAINST THE LAW OF NATIONS 31
Piracy. Offences as to Slaves.
VI CONTENTS.
CHAP. PAQB
II. OFFENCES AGAINST THE GOVERNMENT AND SOVE-
REIGN 34
Treason. Misprision of Treason. Attempts to Alarm or Injure
the King. Treason-Felony. Sedition. Unlawful Oaths and
Societies. Offences against the Foreign Enlistment Act. Deser-
tion, Mutiny, and Inciting thereto. Illegal Training and
Drilling. Unlawful Dealings with Public Stores. Offences by
Members of the Army and Navy. Coinage Offences. Conceal-
ment of Treasure Trove. Disclosure of Official Secrets.
III. OFFENCES AGAINST RELIGION 66
Apostasy — Blasphemy. Disturbing Public Worship, Profana-
tion of Sabbath. Fortune Telling.
IV. OFFENCES AGAINST PUBLIC JUSTICE 60
Escape. Breach of Prison. Being at Large during Term of
Penal Servitude. Rescue. Obstructing Lawful Arrest, &c.
Perjury. Subornation of Perjury. False Declarations. Volun-
tary Oaths. Bribery. Embracery, &c. Common Barratry.
Maintenance. Champerty. Compounding Offences. Misprision
of Felony. Extortion, &c. Contempt of Court.
V. OFFENCES AGAINST THE PUBLIC PEACE 83
Riots. Affray. Challenge to Fight. Sending Threatening
Letters. Libel and Indictable Slander. Forcible Entry or
Detainer.
VI. OFFENCES AGAINST PUBLIC TRADE 96
Smuggling. Offences against the Bankruptcy Laws. Counter-
feiting Trade Marks, and applying False Trade Descriptions.
Unlawful Interference with Trade by Combinations, &c.
VII. CONSPIRACY ... 106
VIII. OFFENCES AGAINST PUBLIC MORALS, HEALTH, AND
GOOD ORDER llO
Bigamy. Indecent Conduct. Gaming and Gaming Houses.
Common or Public Nuisances. Adulteration and Unwholesome
Provisions. Factories, Workshops, and Mines. Wanton and
Furious Driving. Vagrancy. Sending Unseaworthy Ships to
Sea. Neglect of Duty by Masters, Ac, of Ships. Trades
requiring Licence or Registration.
IX. OFFENCES RELATING TO GAME 138
CONTENTS. Vll
PART n.
OFFENCES AGAINST INDIVIDUALS.
THEIR PERSONS.
CHAP.
PAGE
INTRODUCTION ^37
I. HOMICIDE 138.
Suicide or Self-murder. Murder. Manslaughter. Attempt to
Murder.
II. RAPE, &c 155-.
Rape. Carnall^ Abusing Children, Lunatics, &c., and other
Offences against Women. Unnatural Crimes. Incest. Attempts
to Procure Abortion. Concealment of Birth. Abduction. Child
Stealing, Abandoning, &c.
III. ASSAULTS, &c 170
Common Assault. Actual and Grievous Bodily Harm. Assault
with Intent to Commit a Felony. Attempt to Choke, &c., with
Intent, &c. Administering Poison, &c. Injuring by Explosive
or Corrosive Substances. Endangering Safety of Railway Pas-
sengers. Assaults, &c., connected with Wrecks. Forcing Sea-
men on Shore. Assaults on Officers. Assaults on Others in the
Execution of their Duty. Assaults on those in a Defenceless
Position. False Imprisonment.
PART III. ^
OFFENCES AGAINST INDIVIDUALS.
THEIR PROPERTY.
I. LARCENY. Receiving Stolen Goods ... 180
n. EMBEZZLEMENT 222
in. FALSE PRETENCES, &c 230
False Pretences. False Personation. Cheating.
IV. BURGLARY AND HOUSEBREAKING 241
VIU CONTENTS.
.CHAP. PAGE
V. FORGERY 248
■yi. INJURIES TO PROPERTY 259
Arson. Malicious Injury.
BOOK III.
CRIMINAL PROCEDURE.
I. COURTS OF A CRIMINAL JURISDICTION 274
The High Court of Parliament. Court of the Lord High Steward
of Great Britain. Court of Criminal Appeal. King's Bench
Division of the High Court of Justice. Assizes. The High
Court of Admiralty. Central Criminal Court. Quarter Sessions.
Court of the Coroner. University Courts in Oxford and Cam-
bridge.
II, PROCESS TO COMPEL APPEARANCE 288
III. PROCEEDINGS BEFORE THE MAGISTRATES 298
IV. MODES OF PROSECUTION 306
V. PLACE OF TRIAL. TIME OF TRIAL 322
VI. THE GRAND JURY ...
VII. CERTIORARI
VIII. ARRAIGNMENT. Confession
Demurrer. Pleas
IX. THE PETTY JURY ...
. X. THE TRIAL
Motion to Quash Indictment.
335
338
350
357
363
XI. THE WITNESSES ...
Competency of Witnesses. Credibility of Witnesses. Number
of Witnesses.
Xn. THE EXAMINATION OF WITNESSES 381
Xni. EVIDENCE 388
CONTENTS .
IX
CHAF.
XIV. VERDICT AND JUDGMENT
XV. INCIDENTS OF TRIAL
XVI. PUNISHMENT
XVII. APPEAL
XVIII. REPRIEVE AND PARDON .
PAGE
.. 408
.. 415
.. 422
.. 446
.. 447
BOOK IV.
SUMMARY CONVICTIONS
451
BOOK Y.
APPEAL 474
Appeal from Summary Conviction. The Criminal Appeal Act, 1907.
APPENDIX. Table of Offences
Forms of Indictment
494
511
INDEX
521
TABLE OF STATUTES.
PAGE
6 Edw. I. c. 9 141
23 Edw. I. {Stat, de frang. pris.) 61
25 Edw. III. St. 5, c. 2 ... 35 et seq.
5 Kich. II. c. 8 95
13 Rich. II. c. 5 326
15 Rich. II. c. 3 326
13 Hen. IV. c. 7 85
11 Hen. VII. c. 1 35
28 Hen. VIII. c. 15 32
33 Hen. VIII. c. 9 115, 116
35 Hen. VIII. c. 2, s. 1 ... 325, 357
5 & 6 Edw. VI. c. 16, 8. 1 71
1 & 2 Phil. & Mary, c. 10 40
13 Eliz. c. 5 240
18 Eliz. c. 5 78
27 Eliz. c. 4 240
31 Eliz. c. 5 316
c. 11 95
21 Jac. I. c. 16 95
29 Car. H. c. 7 58
31 Car. 11. c. 2 302, 448
a. 5 300
s. 7 304
1 Wm. & M. sess. 2, c. 2 302
2 Wm. & M. c. 5 63
7 & 8 Wm. III. c. 3, 88. 2, 4 ... 39
8. 5 ... 38, 315
8. 6 38
8. 11 276
9 & 10 Wm; III. c. 32 (c. 35) ... 56
10 & 11 Wm. in. c. 17 122
11 Wm. III. c. 7 326
s. 7 32
8. 8 33
12 & 13 Wm. III. c. 2, s. 12 ... 448
1 Anne, 8t. 2, c. 17, s. 3 37
6 Anne, c. 41 37
7 Anne, c. 21, s. 14 38
PAGE
9 Anne, c. 19 115
1 Geo. I. St. 2, c. 5 85, 139, 315
6 Geo. I. c. 19 32
8 Geo. I. c. 24, s. 1 33
12 Geo. I. c. 29, s. 4 75
2 Geo. II. c. 28 33
9 Geo. n. c. 5 58
11 Geo. II. c. 19, 8. 10 63
12 Geo. n. c. 28 115, 116
13 Geo. II. c. 19 115, 116
16 Geo. II. c. 31, 8. 3 61
18 Geo. II. c. 30 32
c. 34 115
19 Geo. II. c. 21 58
24 Geo. II. c. 44, a. 6 290
25 Geo. II. c. 36, s. 8 122
c. 37, 8. 9 63
12 Geo. III. c. 20 339
c. 24, 8. 1 262
8. 2 322
21 Geo. HI. c. 49, s. 1 58
30 Geo. ni. c. 48 39
32 Geo. III. c. 60 91
36 Geo. III. c. 7, s. 1 38, 40
37 Geo. III. c. 70 46
8. 2 322
c. 123, 8. 1 43
38 Geo. III. c. 52 323
39 Geo. III. c. 37 326
c. 69, 8. 104 262
c. 79 44
39 & 40 Geo. III. c. 93 38, 355
c. 94, s. 2 ... 18,
339
42 Geo. III. c. 85, s. 1 325
c. 119, 8. 2 122
45 Geo. III. c. 92, ss. 3, 4 ... 371, 378
46 Geo. III. c. 54 326
xn
TABLE OF STATUTES
PAGE
48 Geo. ni. c. 68, s. 1 333
49 Geo. III. c. 126, bs. 1, 3, 4... 71
51 Geo. III. c. 100 323
52 Geo. III. c. 104, ss. 1, 2 43
c. 155, 8. 12 67
c. 156 61
54 Geo. III. c. 146 39
66 Geo. III. c. 138, s. 2 79
67 Geo. III. c. 6, s. 1 38
c. 7 46, 322
c. 19 44
(50 Geo. III. & 1 Geo. IV. c. 1,
ss. 1, 2 ... 47
s. 7 316
c. 8 393
1 & 2 Geo. IV. c. 88, s. 1 62
3 Geo. IV. c. 114 122
4 Geo. IV. c. 48, s. 1 414
c. 76, s. 21 112
5 Geo. IV. c. 83 69, 114
s. 3 127,128
s. 4 128,129
8. 5 129
8. 10 130
s. 14 129
c. 84 448
8. 22 ... 62, 63, 325
c. 113, 88. 9-11 33
6 Geo. IV. c. 60 360-352
8. 1 328
88. 20, 29 356
8. 21 38
8. 30 366
8. 61 75
c. 97 ;. 287
7 Geo. IV. c. 16, s. 38 238
c. 64, 88. 12, 13 324
8. 28 296
8. 30 297
7 & 8 Geo. IV. c. 28, s. 2 339
8. 3 355
88. 8, 11.426
8. 10 422
8. 13 448
8. 43 .... 322
9 Geo. IV. c. 31, s. 2 34
c. 69, s. 1.. 133,134,316
8. 2 134
8. 4 135,316
8. 9 134
8. 12 133
PAOB
11 Geo. IV. & 1 Wm. IV. c. 70,
. 8. 35... 281
1 & 2 Wm. IV. c. 32, s. 30 .... 145
2 & 3 Wm. IV. c. 63, 8. 49 238
4 & 6 Wm. IV. C.36,
88. 16,19,21.. 280
s. 22 32,326
c. 67 62
5 & 6 Wm. IV. c. 50 120
c. 62, s. 13 69
6 & 7 Wm. IV. c. 86, 8. 39 112
c. Ill 393,413
c. 114, 8. 4 305
7Wm.IV. &1 Vict. c. 88, 88.2,3 33
c. 91,8. 1 33,
43,46,63,85
1 &2 Vict. c. 38 127
2 & 3 Vict. c. 47, 8. 66 296
c. 71, 8. 17 290
88.27,28,40 .. 421
c. 82, 8. 1 322
3 & 4 Vict. c. 9. ss. 1,2 93
4 & 5 Vict. c. 22 275
5 & 6 Vict. c. 38 282
c. 61, s. 1 38
8. 2 40
6 & 7 Vict. c. 85, 8. 1 363
c. 96, ss. 4, 6 94
8. 6 42, 89
8. 7 92
7 & 8 Vict. c. 2 326
8. 1 32
c. 29 133, 134
c. 71 281
8 & 9 Vict. c. 20, ss. 103, 104 ... 295
c. 109, 8. 2 116
8. 4 115
8. 17 ... 114,236
9 & 10 Vict. c. 24 422
c. 33 44
10 & 11 Vict. c. 89 130, 294
11 & 12 Vict. c. 12, 8. 1 38
B. 3 40
8. 7 41
c. 42, ss. 1, 2 288
s. 3 ... 332, 333
8. 4 290
ss. 8, 9 289
8. 10 290
8. 11 ... 290,332
8s. 12-15 .... 290
TABLE OF STATUTES.
Sll)
PAfiE
11 & 12 Vict c. 42, 8. 16 ...298, 299
s. 17 ... 298,397
8. 18 299
8. 19 298
s. 20 ... 299, S05
8. 21 299
8. 23 ... 301,303
8. 25 299
8. 27 305
c. 43, s. 1 461
s. 2 ... 460,462
s. 3 462
8. 5 29
8. 7 462
s. 10 460
s. 11 ... 315,460
8. 12 ... 298, 463
8. 13 .: 463
8. 14 ... 464,465
s. 15 464
88.18,24,26.467
8. 19 466
88.21,22,23.466
8. 33 452
c. 44, 8. 5 461
c. 110, 8. 10 128
12 & 13 Vict. c. 96 326
13 & 14 Vict. c. 21, 88. 7, 8 403
14 & 15 Vict. c. 19, s. 5 410
c. 19, 8. 11 ... 134,295
c. 55, 88. 5, 8, 297
8. 18 290
88. 19, 23, 24. 323
c. 99, 8. 3 373
s. 13 347
s. 16 65
c. 100, s. 9 ... 13,209,
2.35,410
8. 12 109,
234, 410
8. 23 323
s. 27 3.34
s. 29 113
15 & 16 Vict. c. 61 451
16 & 17 Vict. c. 30, 8. 9 378
c. 99, ss. 6,9-11 . 426,
449,450
c. 119 114,117
17 & 18 Vict. o. 38 115,116
c. 102 72,73,379
19 & 20 Vict. c. 16, 88. 1, 3 337
PAr.e
19 & 20 Vict. c. 17, 8. 18 286
20 & 21 Vict. c. 3 62,426,448
s. 2 426
s. 3 ... 325,426
s. 5 450
c. 43, 88. 2, 3, 14 . 470
c. 83 113,293
21 & 22 Vict. c. 73, S8. 9-11 281
c. 87 72
22 Vict. c. 32 448
22 & 23 Vict. c. 4 281
c. 17 165,379
s. 1 330
s. 2 332
c. 35, 8. 24 194
23 & 24 Vict. c. 32, 8. 2 57
8. 3 295
24 & 25 Vict. c. 94, ss. 1, 2 27
F«. ^.4.8 ... 29
8. 7 325
c. 96, h. 1 195
88.12-15,17
198,458
88.18,19 . 199,
458
s. 21 458
s. 22 ... 199,458
e. 23 458
8. 24 135,
199,458
8. 26 200
e. 27 195
8. 28 194
8. 29 ... 195,196
8. 30 196
8. 33 ... 193,452
8. 36 194
8. 39 193
88. 82-84 ... 228
88. 85,86 .. 229
8. 87 283
8. 97 218
s. 102 78
s. 108 465
s. 115 .327
8. 116 392
c. 97, ss. 1-4 259
88. 5-8 260
88. 9,10 ... 264
ss. 11,12 ... ««.
264
XIV
TABLE OF STATUTES.
24 & 25 Vict, c,
PAOE
97, S8. 13-15... 265
88. 16-18 .. 261
8. 19 269
88. 20-22 .. 269
88. 22-24 ..269,
459
8. 25 ... 267,459
88. 26, 27 .. 261
88. 28, 29
88. 30, 31
8. 32
88. 33, 34
88. 35, 36
88. 37, 38
265
266
268
267
177
267,
459
270
268
261
266
87
270
271
294
. 262
, 263
. 295
. 465
. 327
. 433
. 429
. 239
. 253
8. 39
88. 40, 41
88. 42-44
ss. 45-49
8. 50
S8. 51,52
8. 54
8. 67
8. 58
88. 59,60
8. 61 ....
8. 66 ....
8. 72 ....
8. 73 ....
8. 75 ....
c. 98, 8. 3
88. 5, 6 .
8. 28 254 j
8. 34 239
8. 50 327
8. 51 433
c. 99, 88. 2, 18, 22,
29, 30 ... 49
88. 3-6, 16,
17... 50
8. 14 49,50
88. 7-10,19 51
88. 11, 13,
14,20.21,
23, 25 ...
88. 12, 15 ..
51,52
8. 24
8. 26
B. 27
8. 28
52
52,389
53
33.293
324
PAGE
24 & 25 Vict. c. 99, 8. 31 295
8. 36 327
8. 37 31)2
s. 38 433
c. 100, 8. 1 148
8. 2 414
8. 4 107
8. 5 ... 152,428
8. 7 141
8. 8 34
8. 9 ... 157,323
8. 10 325
88. 11-15 ..13,
144,154
8. 16 87
88. 17, 37 . 178
8. 18 ... 64,174
8. 20 174
8. 21 175
ss. 22-25,
28 ... 176
6. 26 180
8. 27 169
8. 29 176
8. 30 177
s. 31 .135
ss. 32-34 . 177
8. 35 127
8. 36 179
8. 38 .. 63,175,
179
ss. 42,43 .. 457
88. 44, 45 .. 347,
458
s. 46 458
s. 47 .. 171,174
8. 48 157
s. 52 161
ss. 53, 54 . 166
s. 55 167
8. 56 168
8. 57.. 110,111,
112,323
ss. 58, 59 . 165
s. 60 .. 165.410
ss. 61, 62 . 163
8. 63 156
8. 65 292
8. 66 294
8. 67 148
8. 68 327
TABLE OF STATUTES.
XV
24 & 25 Vict
25 & 26 Vict
26 & 27 Vict.
27 & 28 Vict.
28 & 29 Vict.
29 & 30 Vict
30 & 31 Vict
31 & 32 Vict
32 & 33 Vict
33 & 34 Vict
PAGE
c. 100, B. 70 429
8. 71 433
c. 65 280
c. 67 2.52
c. 68, ss. 7, 8... 249
c. 107 352
c. 114, s. 2 460
c. 29 72
c. 44 174
c. 73. 8. 14 239
c. 87, s. 9 229
c. 103, s. 1 210
c. 47,88. 4-10.449,450
c. 18, s. 2 358,359
8. 3 385
88. 4, 6 373
8. 6 374
8. 7 405
8. 8 406
c. 124, 88. 8, 9... 238
c. 126, ss. 20, 32,
33 ... 306
' 8. 37 ... 61
c. 108. S8. 15-17... 229
c. 109 46, 48
8. 34 262
c. 35, s. 2 331
8. 3 .. 299,305,
397
8. 4 305
8. 6 398
8. 9 420
8. 10 332
c. 102. s. 49 .... 72
c. 24, 8. 2 425
c. .37, 8. 4 254
c. 45 199
c. 110, 8. 20 218
c. 119, 8. 5 229
c. 125 72
. c. 62, 8. 13 101,
233,236
s. 18 331
c; 73, 8. 23 218
c. 112 126
. c. 14, ss. 4, 6 38
8. 5 356
c. 23, 8. 1...7,39,40,
144,441
s. 2 442
8. 4 443
PAGE
33 & 34 Vict. c. 23, s. 5 441
ss. 9, 18,
21 ... 442
8. 31 39
c. .52 290
c. .58, s. 4 239
c. 65, 8. 3 78
c. 77 350,352
8. 6 356
88. 8, 9, 12.. 351
8. 10 . 352,. 353
s. 23 355
c. 90 44-46
88. 16, 17.. 324
c. 112, 8. 15 128
34 & 35 Vict. c. 31, s. 2 104
c. 78, 8. 10 229
c. 87 58
c. 108, 8. 7 128
c. 112, 88. 3-5... 449
8. 7 ... 294,295,
346,430,454
8. 8 430
8. 9 412
88. 10, 11
220,292
8. 12 .. 64,179,
292, 457
s. 13 292
8. 18 404
8. 20 412
35 & 36 Vict. c. 33 68,73
8. 3 73
c. 77 126,265
c. 93, 8. 30 421
8. 34 . 295,421
8. 36 291
s. 38 220
c. 94, 8. 12 130
36 & 37 Vict. c. 38 114,128
c. 60 290
c. 66, 8. 16 277,
279,280
8. 29 . 279,280
8. 47 471
c. 71, 8. 13 268
c. 88 33
37 Vict. c. 15 116
37 & 38 Vict. c. 36, ss. 1, 2 ...... 239
s. 3 283
38 & 39 Vict. c. 17 121
XVI
TABLE OF STATUSES.
PAGE
38 & 39 Vict. c. 24 226, 264
c. 25 389
88. 4, 5,
7-11... 47
38 & 39 Vict. c. 65, as. 9, 96, 98. 120
88. 116-119 125
c. 63, 88. 3, 4 ... 124
ss. 5, 6, 9,
25, 27... 126
c. 77, 8. 19 301
c. 80 58
c. 86, 88. 3-6, 9.. 106
8. 7 104
39 & 40 Vict. c. 36, s. 168 68
68. 85, 189,
193... 96
88.190,257
97,389
8. 217 70
s. 229 324
8. 257 316
s. 258 322
c. 49, ss. 3, 5, 9.. 276
c. 77 268
40 & 41 Vict, c 14 364
41 Vict. c. 16 126
41 & 42 Vict. c. 49, s. 26 240
c. 73 326
42 & 43 Vict. c. 11 393
c. 21, 8. 10 96
c. 22, 8. 2 320
c. 34, 8. 3 183
c. 49, 8. 4 465
88. 5, 7 ... 467
s. 8 468
s. 10 .. 454,455
s. 11 .. 177,455
8. 12 .. 200,455
s. 13 457
s. 15 455
8. 17 . 431,453
8. 20 . 462,463
8. 21 . 466,467
8. 25 434
8. 27 . 347,452
8. 31 468
8. 33 470
8. 35 467
8. 36 462
8. 43 466
6. 44 420
PAGE
42 & 43 Vict. c. 49, s. 45 435
8. 46 452
8. 47 467
8. 49 . 452,454
c. 55, 8. 2 430
43 & 44 Vict. c. 35 135
c. 41, 8. 7 58
c. 45, 8. 2 .. 161,171
44 & 45 Vict. c. 51 135
c. 58, 88. 12, 153. 46
88.144,156,
162... 48
8. 154 295
c. 60, s. 4 90
8. 6 ... 90,331
c. 69 290
45 & 46 Vict. c. 9, 8. 3 254
c. 19 144
c. 36, s. 5 128
c. 50, s. 158 .... 285
s. 186 .... 351
c. 56, 8. 22 267
c. 75, 88. 12, 16..
203, 367
46 & 47 Vict. c. 3, ss. 2, 3 264
8. 4 .. 264,389
c. 38, 8. 2 ... 18,412
c. 46 63
c. 51 ... 72,73,316,
386
47 & 48 Vict. c. 14 204
c. 27 199
c. 39 46,48
c. 58 320
c. 70 74
8. 30 316
c. 76, s. 11 . 218,254
48 & 49 Vict, c. 51, 8. 8 126
c. 69, 8. 2 .. 169,160,
376
8. 3 ... 155,159,
375
8. 4 ... 159,429
8. 5 .. 158,159.
316
8. 6 158
88. 7, 8 ... 167
8. 9 ... 159,411
8. 10 292
8. 11 163
s. 13 122
TABLE OF STATUTES.
XVll
PAGE
48 & 49 Vict. c. 69, 6. 17... 160, 331
c. 75 64, 179
50 & 51 Vict. c. 28, s. 2 ... 102,103,
254,389
ss. 3, 6, 15. 103
8. 12 293
8. 13 331
c. 29 126
c. 55, 8. 29 ... 80,31
c. 71, 8. 3 .. 285,319
a. 4 319
8. 5 ... 304,319
8. 36 286
51 & 52 Vict. c. 41, 8. 31 285
8. 40 281
c. 43, s. 28 404
8. 78 68
c. 46 357
8. 1 ... 298,370
s. 3 371
c. 64, 8. 3 93
8. 4 94
8. 8 42,93
52 & 53 Vict. c. 12 284
c. 18 113
0.21,88.3,4,33 . 240
c. 45, 8. 9 461
c. 63, 8. 13 463
c. 69 70
53 Vict. c. 5 161, 185
53 & 54 Vict. c. 21, a. 10 70
c. 59, 8. 28 125
54 & 55 Vict. c. 69, s. 1 43,61,
163,422,
^ 426,427
8. 2 ... 294,430,
450
8. 3 450
8. 4 ... 430,449
8. 6 431
8. 7 128
c. 75 126
55 Vict. c. 4, 88. 1-4 118
55 & 56 Vict. c. 62 126
c. 64 82
66 k 67 Vict. c. 53, a. 48 442
c. 54 58
c. 61, s. 1 316
c. 71, 8. 22 417
88. 23-25 . 418,
419
O.L.
57 & 58 Vict,
58 & 59 Vict
60 & 61 Vict
61 & 62 Vict
62 & 63 Vict
63 & 64 Vict
1 Edw. VII
2 Edw. VII
3 Edw. VII.
4 Edw. VII.
5 Edw. VII.
PAGE
c. 60 287
88. 419, 422
130
s. 457 . 130,389
8. 680 179
8. 684 .... 324,
452
8. 686 .... 326,
327
8. 687 327
8. 691 377
c. 33 290
c. 37 126
c. 39 172,173
c. 40 72
c. 18 355
c. 30, 8. 1 .. 295,420
c. 52 ; 183
c. 7 301
c. 36, 8. 1 .. 160,168,
299, 359,
364,368,
464
8. 2 ... 357,464
8. 3 359
s. 4 ... 160,162,
168
a. 6 364
c. 39 129
c. 41, a. 11 378
c. 60, 8. 1 440
Sched. I. 442
c. 22, 8. 1 455,457
8. 2 455
s. 3 . 232,456
c. 51 ... 125,126,237
. c. 51, s. 2 132
8. 4 237
a. 5 118
c. 22 126
c. 8, a. 8 124
c. 28, 8. 2 130
8. 5 .. 172,173
8. 6 130
c. 36, 83. 1, 9, 11... 127
c. 38 4'''
c. 45, 88. 1, 3 184
c. 15, 8. 2 183
8. 27 .. 159,316
c. 13, SB. 3, 7 129,
140,141
b
XVI 11
TABLE OF STATUTES.
PAGE
5 Edw. VII. c. 15, s. 66 103
c. 27 126
c. 34 74
8. 2 330
6 Edw. VII. c. 47, ss. 1, 2 105
c. 48 178
c. 55 68
7 Edw. VII. c. 17, 8. 1 416,423
88. 2, 6, 9 .. 424
c. 21 126
c. 23, s. 1 474
8. 2 475
8. 3 476
8. 4 477
8. 5 478
8. 6 479
8. 7 480
83. 8, 9 .... 481
88. 10,11 .. 482
88. 12,13 .. 483
8. 14 484
8. 15 485
88. 16,17 .. 486
8. 18 487
8. 19 488
8. 20 489
83. 21, 22,
23... 490
c. 29, s. 60 103
3. 89 254
c. 39 126
c. 53, 8. 79 127
8 Edw. Vn. c. 3 320
c. 15, 8. 1 ... 379,415,
468
8. 6 379
8. 7 380 J
8. 9 ... 121,380
c. 40, 8. 3 ... 440,442
c. 41, 8. 3 281
c. 45 164
8. 4 .... 331,411
8. 5 340
c. 46, 8. 1 474
8. 2 476
c. 48 216
88. 60, 51, 53,
64, 69... 217
B. 55 194
88. 56-58 .. 216
a. 59 .. 196,262
PAGE
8 Edw. VII. c. 48, s. 63 113
8. 65 264
8. 72 323
8. 89 218
c. 69, 88. 1, 4, 6,
6, 7... 439
8. 10 430
B. 11 432
8. 12 ... 411,432
88. 13-16 .... 432
c. 65, 8. 25 290
c. 67, 88. 1-11 182
8. 12 .. 169,180,
411
8. 14 183
88. 16, 19 .. 182
8. 17 .. 158,182
8. 21 181
8. 22 .. 181,438
8. 24 .. 182,293
8. 26 181
8. 27 .. 184,367
88. 28, 29 .. 398
8. 30 369
8. 31 184
8. 32 .. 309,314
8. 35 331
8. 37 181
s. 38 180
8. 57 437
8. 68 .. 437,439
ss. 69,60 .. 439
88. 65, 68,
70... 438
88. 94-96,
98... 305
8. 99 423
8. 100 .. 442,468
8. 102 427
s. 103 423
8. 104 437
88. 106, 108 . 436
8. 107 435
8. Ill 464
8. 114 340
8. 115 340,
404
8. 120 183
8. 128 454
8. 131 180,
435
TABLE OF STATUTES.
SIX
PAGE
8 Edw. Vn. c. 69, s. 38 239
ss. 216, 281,
Sched. 6 229
9 Edw. VII. c. 12, s. 1 115
c. 39 371
10 Edw. VII. & 1 Geo. V.
c. 24, 8. 75 130
8. 79 117
c. 25, 8. 1 .. 158,182
1 & 2 Geo. V. c. 4 121
C. 6, 88. 1, 15
64-66, 371
ss. 2, 4, 9,
10, 13... 67
8. 3 ..... 67,112
8. 5 .... 68,229
s. 6 68
8. 7 69
8. 8 323
8. 11 ... 66,331
c. 7 74
c. 16, 8. 4 442
c. 27 268,269
c. 28 53
8. 9 293
8. 10 325
c. 50 263
2 & 3 Geo. V. c. 17, 8. 1 268
c. 20, 8. 2 160
s. 3 159
s; 7 129
c. 22 121
c. 31, 88. 46-48 .. 131
3 & 4 Geo. V. c. 7, ss. 1, 3 185
c. 27, 8. 1 .... 249,250
8. 2 251
8. 3 252
8. 4 254
8. 5 ... 254,255
s. 6 257
88. 7-10 ... 257
8. 12 .. 254,257,
428, 433
8. 14 323
8. 15 256
8. 16 .. 257,292
8. 17 .. 250,256
8. 18 . 251,252,
257
c. 28, 8. 1 163
ss. 8, 11 ... 440
PAGE
3 & 4 Geo. V. c. 28, ss. 51, 54,
55, 57, 58,
60... 186
8. 66 .. 161,162
4 & 5 Geo. V. c. 14, s. 1 195
c. 58, 88. 1, 3 467
8. 8 424
8. 9 476
88. 10, 12,
13... 466
8. 11 439
s. 14 291
8. 15 .. 455,457
8. 16 ,. 428,466
8. 20 300
8. 22 304
8. 23 301
8. 25 .. 466,467
s. 27 450
8. 28 .. 112,369,
404
s. 29 462
8. 36 429
8. 37 468
8. 38 462
8. 39 241
8. 44 467
c. 59, 8. 137 404
8. 157 99
ss. 155,159 . 100
8. 156 101
8. 157 97
8. 158 ... 98,99
8. 161 102
8. 164 .. 101,331
8. 166 229
5 & 6 Geo. V. c. 90, ss. 1, 2, 3... 307
8. 4 309
8. 5 ... 310,312
88. 6,7,8 .. 313
6 & 7 Geo. V. c. 50, s. 1 ... 197, 199,
201,202,209
8. 2 210
88. 3, 4 .... 200
8. 5 199
s. 6 195
88. 7-10 .... 196
8. 8 ... 193,194
8. 9 213
8. 11 193
b*
xz
taSlk of statutes.
& 7 Geo. V. c.
PAOE
50, 8. 12 217
8. 13 247
8. 14 215
8. 15 212
8. 16 210
8. 17 .. 194,210,
212,222,224
8. 18 .. 194,216
8. 20 224,
226,228
ss. 21,22 ... 227
8. 23 .. 214,215
8. 24 247
8. 25 241
ss. 26-28 .. 246
ss. 29-31 .. 88
s. 32 .. 230,237
s. 33 .. 218,220
8. 34 78
8. 35 27
B. 36 203
PAGE
6 & 7 Geo.V. c. 50, s. 37.. .211, 428,
429, 433
8. 38 283
8. 39 323
8. 40 .. 202,220,
225,235
8. 41 .. 294,295,
420
8. 42 .. 291,292
8. 43 .. 196,219,
229
8. 44 .. 190,215,
220,346,
409, 410
8. 45 416
8. 46 227,
241,242
8. 47 197
c. 64, 8. 1 74
B. 2 75
7 Geo. V. c. 4 307
Erratum.— P. 160, note (2), /or 2 & 3 Geo. V. c. 20, s. 3, read 2 & 3 Geo. V.
c. 20, 8. 2.
TABLE OF CASES.
The cases in capitals are contained in Wilshere's Leading Cases in
Criminal Law.
PAGE
Abbott 144
Abramovitch 221
Adams 91
Ahlers 37
Alexander 476
Allen V. Flood 109
(41 L. J. (M. C.) 101) .... Ill
(1 B. & S. 850) 416
ANDERSON 326
Antonelli 42
Appleby v. Franklin 3
ARDLEY 232
Arnold 16
Arrowsmith v. Le Mesurier 187
Ashman 175
Ashwell 208
Aspinall 108
Astley 212
Aston 256
Att.-Gen. v. Moore 53
V. Sillem 4
Aughet 347
Aveson v. Lord Kinnaird 396
Ayes 142
Badger 303
Bagg V. Colquhoun 465
Bagshaw v. Buxton Local Bd... 120
Bailey 223
Baines ?i2
Baker 66
Ball 164
BANCROFT 232
Banks 382
Banks (de) 202
PAGE
Barber v. Penley 120
Barker v. Hodgson 471
BARNARD 233
Barrett 168
Barronet, In re 302
Barrow 346
Basherville 376
BEATTY V. GILLBANKS 84
Beckwith v. Philby ^ 296
Bedingfield 395
Bellingham 16
Bellis 168
Benford v. Sims 29
Benjamin v. Storr 119
Berry (45 L. J. (M. C.) 123) ... 339
(104 L. T. Jo. 110) 340
Best (9 C. & P. 368) 79
([1909] 1 K. B. 692) 399
Betts V. Armstead 125
Birchall 150
Birmingham and Gloucester Ry. 284
Blades v. Higgs 417
Bleasdale 25, 391
Boaler 94
Bond 390, 391, 392
Booth 168
Boult 248
Boulter (21 L. J. (M. C.) 57) ... 67
(72 J. P. 188) 57
Bowden 247
Bowen 304
BOWERS 223
Bows V, Fenwick 116
Boyce 174
Boyes 374
Bradford 470
BRADFORD CANAL CO 122
XXll
TABLE 01? CASES.
PAOB
Bradlaugh t). Newdegate 76
E. V. (16 Cox, 217) 57
Brailsford 106, 108
Braithwaite 67
Brice 244
Briggs 174
Broad v. Pitt 369
Bromage v. Prosser 11, 92
Bros 461
BEOWN (L. E. 1 C. C. E. 70).. 373
(63 J. P. 790) 165
(C. & M. 314) 64
([1895] 1 Q. B. 119) 453
V. Att.-Gen. of New Zea-
land 22
V. PATCH 116
Bryan 232
Bubb 29
BUCKMASTEE 207
Buggs 282
BULL (9 C. & P. 22) 140
(2 Leach, 841) 205
BUNKALL 202
Burdett 42
BUEGESS 77
Burgon 231
Burns 42
Butler 302
Butt 226
Butterfield 63
BUTTON 235
Byers 118
Cabbage 210
Cade 249
Campbell v. E. (11 Q. B. 799) 409
E. V. ([1911] W. W. 47) 413
Capital and Counties Bank v.
Henty 91
Carden 90
CAELILE 120
Carpenter 235
Carr (52 L. J. (M. C.) 12) 326
V. Anderson ([1903] 2Ch.
279) 442
Casement 37
CASTEO 422
CATTEL V. lEESON 4
Cavalier v. Pope 124
Chamberlain 347
PAOtL
Chambers (65 L. J. (M. C.) 214) 453
(W. N. 1919, p. 95) 335
Chandler 244
Chappie 28
Charlesworth 344
Chatterton v. Secretary of State
for India 92
Cheesemau 143
CHILD (L. E. 1 C. C. E. 307).. 260
(2 Cox, C. C. 102) 95
V. Afleck 94
Chinn v. Morris 187
CHISHOLM V. DOULTON ... 12
Christie 394, 395, 400, 407
Clarence 171, 174
Clayton v. Le Eoy 417
Clemens 270
Clewes 399
Clifford V. Brandon 85
Closs 249
Cockshott 453
Colclough 256
CoUey 382
CONEY 171
Cooke 190
COOPEE 231
COPPEN V. MOOEE 12
Corporation of London 420
Corrie 117
Costello 248
Cotham 461
Cotton 159
Coward v. Baddeley 171
V. Wellington 94
Cowle '. 397
Cox (54 L. J. (M. C.) 41) 370
([1898] ,1 Q. B. 179) 184
Crabb 231
Cramp 165
Crippen 359
Crisp ...! 79
Crossiey 231
Cruse 18, 23
Crutchley 21
CULLUM 229
CUNDY V. LE COCQ (13
Q. B. D. 209) 12
c, Lindsay (3 App. Cas.
469) 418
Curgerwen Ill
Curran v. Treleaven 104
Table op cases.
XXlll
PAGB
Dadson 140
Dammaree 36
Daniel v. Janes 268
Davis, E. V. (14 Cox, 563) 19
, Ex parte (35 J. P. 551)... 435
V. Shepstone 93
Deana 141
Deaville 117
Deer 219
De Banks 202
De Jager v. Att.-Gen. of Natal.. 38
De Marny 113
Derbyshire v. Houliston 125
Dimes v. Petley 119
Dixon 123
Doherty 18, 360
Dolan 219
Donnally 212
Downes v. Johnson 117
Drury 347
Dublin, &c., Ey. Co. v. Slattery 152
Du Cros V. Lambourne 29
Dudley 142, 337
Duffy 42
Duncan v. Toms 463
Dunn 433
Dyson ([1894] 2 Q. B. 176) 100
([1908] 2 K. B. 454) 146
Eastgate 418
Eaton 335
Edwards 302
Edwick V. Hawes 95
Eggington 204
Eichholz V. Bannister 233
Eldershaw 20
Elworthy 397
Emmens v. Pottle ;. 92
Esop 21, 23
Etheridge 248
Fadebman 343
Falkingham 169
FAENBOEOUGH 409
Faulkner 262
Felstead v. E 476
Fennell 399
Fenton 150
Ferens v. O'Brien .••• 196
PAGE
Field V. Eeceiver of Metropolitan
Police 84
Firth 391
Fisher (8 C. & P. 182) 149
FISHEE (U910] 1 K. B. 149).. 236
— — V. Apollinaris Co 78
Flannagan 242
Flatman 203
Flattery 155
Flowers 208
Foote 304
Ford V. Harrow Urban Council .. 119
Foss ». Best 470
Foster (46 L. J. (M. C.) 128) ... 232
(6 C. & P. 325) 395
Frances 17
Francis 236, 391
Franklin 150
Friel , 346
Frost 36
Fryer 17
Gallagher 376
Gardner (1 C. & P. 479) 88
([1899] 1 Q. B. 150) 358
Garland 476
Gaunt 172
Gaylor 27
Geering 391
Giles 232
Gill 107
Gilmore 178, 344
Girod 219
Glyde 209
GNOSIL 214
Gordon (Doug. 593) 36
(12 L. J. (M. C.) 84) 382
(58 L. J. (M. C.) 117) 1 232
Gould 399
Grant v. Thompson 76
Gray (4 F. & F. 110-.^) 392
([1900] 2 Q. B. 36) 81
Great North of England Ey. Co. 23
Greenacre 138
Greening 149
Greenough v. Eccles 385
Greenslade ,371
Gregory 28
Griffin 143
Griffiths 250
XXIV
TABLE OF CASES.
PAGE
Grout 151
Grubb 226
Hadwen 368
Hall (R. & R. 355) 244
([1891] 1 Q. B. 747) 5, 307
V. Cox ([1899J1Q. B. 198) 122
Hamilton 450
Hammersmith, &c., Ry. Co. v.
Brand 122
Handcock v. Baker 296
Handley 168
Hardy (1 East, P. C. 60) 36
(24 How. St. Tr. 753).. .370, 386
Hargreave v. Spink 417
Harris (15 Cox, 75) 262
(69 L. T. 25) 223
V. Brisco 76
V. Tippett (2 Camp. 637) ... 374
Harvey (1 Leach, 467) 205
(2 B. & C. 864) 11
Hassall 202
Haswell 62
Hay (2 F. & F. 4) 369
(22 Cox, 268) 17
V. Justices of Tower Divi-
sion (24 Q. B. D. 561) 449
HAYWARD 149
HAZELTON 233
Hazelwood 233
Hibbert 167
Hickman 145
Higgins 28
Hill (R. & R. 190) 234
(8 C. & P. 74) 251
(2 Den. 254) 368
„. Wright (60 J. P. 312) ... 471
Hodges • 17, 329
Hodgkiss 386
Hodgson (3 C. & P. 422) 225
(1 Leach, 6) 143
Hole t). Barlow 121
Holland 146
HOLLOWAY 11, 201
Holloway (Governor) 202
Holmes 157
Holt 236
Hook 66
Hopley 143
Horwood V. Smith 419
PAOB
Howard 490
Hudson 366
Hughes V. Marshall (2 Tyr. 134) 71
(2 Mood. C. C. 190) 156
(1 Mood C. C. 370) 223
(1 Leach, 406) 245
Humphrey 117
Hunt V. G. N. R 94
Hunter v. Johnson 170
Hurley 255
Hutchinson 347
Hyams 244
I'Anson v. Stuart 90
Ibrahim t). R 399
Ingleson 476
INSTAN 151
Ireland 412
Jackson 225
James (2 Strange, 1256) 282
([1902] 1 K. B. 540) 203
Jameson 45
Jarrold 245
Jarvin, Ex parte, Inhabitants of 285
Jarvis (37 L. J. (M. C.) 1) 399
(20 Cox, 249) 167, 168
Jefferson 17
Jenkins (L. R. 1 C. C. R. 187)... 396
(R. & R. 224) 242
Jenks V. Turpin 116
JENNISON 232
Jessop 234
Johnson (2 East, P. C. 488) 243
(C. & M. 218) 244
(3 M. & Sel. 556) 6
([1909] 1 K. B. 439) ...478, 489
JONES ([1898] 1 Q. B. 119) 101, 233
(2 C. & K. 236) 210
^ (11 Cox, 544) 151
(72 J. P. 215) 149
V. German ([1896] 2 Q. B.
418) 291
Jordan 20, 360
Judge of Brompton County Court 81
Justices of the Central Criminal
Court 419
Justices of Cheshire 469
Justices of Durham 469
TABLE OF CASiS.
XXV
PAGE
Jufitices of London 469
Justices of Oxfordshire 468
Justices cf Surrey 169
Keir v. Leeman 78
Kelly 432
Kennedy 288
Kenny 203
Kenricic 232
KILHAM 231
Kinnersley 106
Kinnis v. Graves 465
KIRKHAM 147, 149
Knock 149
Krause 108
LABOUCHERE 318
Lake 238
Lancaster 71
Langmead 219
Langrish v. Archer 144
Lansbury v. Riley 434
Lapier 214
Larkins 476
LATIMER 148, 175
Leach 160, 164, 184, 367
Leconfield v. Lonsdale 119
Lee (9 Cox, 304) 232
— — V. Dangar Grant & Co.
([1892] 2 Q. B. 337) 5, 81
Lefroy 81
Lehwers 70
Lester i; . Quested 114
Levy 28
Levels, Ex parte 461
Light 234
Lillyman 394
Lines 134
Linford «. Fitzroy 303
LINNEKER 12
Lister 225
Lloyd Jones 225
Lofckhart v. Mayor of St. Albans 470
London, R. t). Corporation of (27
L. J. (M. C.) 231) 420
V. Mayor of (55 L. J.
(M. C.) 118) 94
Mayor of, Ex parte Boaler
([1893] 2 Q. B. 146) 467
London, Brighton and South
Coast Railway v. Truman... 122
London and Globe Finance
Corporation, In re 250
LONG 151
Lovelass 43
Lovell 208
Lows V. Telford 95
Lumley 143
LYNCH 38, 147, 149, 277, 342
Lynn 196
Macdaniel 214
MACDONALD 203
M'Donald (2 Cr. App. R 365
(L. & C. 85) 223
M'GRATH 208
M'Growther 21
McKALE 207
McKenzie 104
McLean 423
McLeod V. St. Aubyn 81
M'NAUGHTEN 16
Maddy 149
Mahon 171
Makin v. Att.-Gen. of New
South Wales 390, 391
Mankletow 168
Mann 144
Mann v. Owen 1
Manning (2 C. & K. 903) 32
(53 L. J. (M. C.) 85) 106
Mansell v. R 354
Manzano 360
Marks v. Beyfus (25 Q. B. D.
494) 370
(3 East, 157) 43
Markuss 152
MARRIOTT 145
Marsh 170
Martin (5 C. & P. 130) 146
(R. & R. 108) 242
MARTIN (L. R. 1 C. C. R.
378) 336, 416
MARTIN (51 L. J. (M. C.) 36) 176
(L. R. 1 C. C. R. 56) 234
MASTERS 190
Mawbey 65
Mead 396
XXVI
TABLE OF CASES.
PAGE
MEADE (19 Times L. B. 540) 123
([1909] 1 K. B. 895) 19
Meekins v. Smith 378
Merivale v. Carson 93
Metropolitan Asylums v. Hill... 122
Meunier 376
Michael 25
MIDDLETON 205, 208
MIDLAND INSURANCE CO.
V. SMITH 3
Miles V. Hutchings ([1903] 2
K. B. 714) 268
MILES (24 Q. B. D. 431).. .345, 381
Millard 391
MILLS 234
Milner v. Maclean 95
Milnes 404
Mitchell 396, 398
Money v. Leach 291
Moore (3 C. & K. 319) 18
(61 L. J. (M. C.) 80) 371
(2 Den. C. C. 522) 399
MORBY 151
Morris (9 C. & P. 349) 200
MORRIS (L. R. 1 C. C. R. 90) 346
Morrison v. Lennard 368
Mortimer 28
Most 107
Mulcahy v. R 107
MUNSLOW 92
Nash 251
Nattrass 260
Naylor 235
NEGUS 223
NEIL 121
Neville 121
Nicholas 396
Nicholson ». Booth (57 L. J.
(M. C.) 43) 172, 457
(65 J. P. 298) 63
Noakes 376
Norman 225
Norton 406
Nott 69
Oakey v. Jackson 181
O'Connor 114, 236
PAOB
Olifier 167
Ollis 236
(Jppenheimer v. Frazer & Wyatt 207
Orman 107
Orton 153
Osborn 89
Osborne 395
Owen 19
Palmer 149
Pardoe 269
Parker ^ 251
Parkin v. Moon 386
Parnell 106
Parsons v. Birmingham Dairy
Co 124
Partridge 221
Patch 207
Payne ». Wilson 419
Pearce 392
Pearson's Case 18
PEASE 122
Pedley 66
Peltier 89
PEMBLITON 263, 270
Penfold 413
Perry 195, 396
Peters 100
Phillips 264
Pickering v. Willoughby 457
Pigott 41
Pitt 4; Mead 71
Pitts 145
Plummer 106
Pointon v. Hill 127, 128
Pope 360
Porter 108, 302
Powell V. The Kempton Park
Racecourse Co 117
Preston 366
Price (8 C. k P. 19) 22
PRICE (12 Q. B. D. 247) ...123, 320
PRINCE 168
Pritcbard 339
Privett 210
Puddick 382
Qdinn v. Leathern 106
TABLE OF CASES.
XXVI 1
PAGE
Kam 155
Kamsay 57
Eappolt 366
Rawlings v. Coal Consumers'
Association 416
Eead 197
Reed 113
Eeeve 399
Reid, Ex parte 332
Reynolds v. Urban District
Council of Presteign 119
RHODES 231, 236, 329, 365
Rice 86
Richards 148
Richardson 391
Richmond 347
Riley (4 F. & F. 964) 373
(18 Q. B. D. 481) 157
RILEY ([1896] 1 Q. B. 309)... 248
Ring 13
Robinson (2 Burr. 800) 91, 307
(4 F. & F. 43) 219
(1 Mood. 327) 244
, In, re (23 L. J. Q. B. 286) 302
Robinson 13
Roebuck 235
Rogers (1 Leach, 89) 243
V. Hawken (67 L. J. Q. B.
526) 399
Rose (67 L. J. Q. B. 289) 399
15 Cox, 540) 140
Rothwell 149
Rouse 366
Rowland 342, 408
Rowlands 108
Rowton 368, 390
Roxburgh 172
Rudd 342
Russell (Earl) ([1901] A. C.
446) 110, 275
(1 Mood. C. C. 377) 244
(93 L. T. 407) 817
Russett 207
Rust 245
Sagar 236
St. George 338
SALMON 151
Salt 391
Sampson 233
Sanderson 134
PAGE
Sandoval 45
Savage 206
Scaife (5 Jur. 700) 302
(2 Den. 281) 397
(1 M. & Rob. 551) 396
Scattergood v. Sylvester ....418, 420
Schama 221
Scott V. Baring 452
SCULLY 141
Sell 341
SENIOR 181
Seme 143, 346
Sharman 248
Sharpe 4, 123
Sherlock 64
SHERRAS V. DE RUTZEN... 12
Sherriflf 360
Shurmer 398
Silverlock 234, 406
Simmonds 382
Smith V. Moody ([1903] 1
K. B. 66) 104
(R. & R. 267) 224
(R. & R. 368) 134
(R. & R. 417) 242, 244
SMITH (8 C. & P. 160) ....142, 145
([1910] 1 K. B. 17) 486
(24 L. J. (M. C.) 135) 219
(1 Mood. C. C. 178) 244
(92 L. T. 208) 236
V. Selwyn 3
V. Thomasson (16 Cox,
740) 104
Smyth 95
Snow V. Hill 117
Solomons 226
Southern 134
Spanner 245
Speed 232
Squire 223
StafiFord Prison, Governor of ... 340
Stanley v. Jones 76
Starey v. Chilworth Powder
Co 102
Stedman 150
Stephens (L. R. 1 Q. B. 702)... 124
(16 Cox, C. C. 387) ,391
Stephenson (31 L. J. (M. C.)'
147) 397
(13 Q. B.D. 331).. .64, 123,
285, 320
XXVlll
TABLE OF CASES.
PAGE
Steward 212
Stoddart v. Sagar ([1895] 2
Q. B. 474) 122
([1901] 1 Q. B. 177) 117
Stokes V. Mitcheson 470
Stone 78
Stride 197
Stubbs 376
Sugden v. Lord St. Leonards.., 393
Sullivan 41, 42
Surrey, Justices of 469
Sutton 134
Swindall 151
Symondson 140
Tate 376
Taylor (1 C. & P. 84 n.) 382
([1911] 1 K. B. 674) ....... 214
V. Reg. ([1895] 1 Q. B. 25) 234
V. Smetten (11 Q. B. D.
207) 122
(11 Cr. App. R. 198) 476
Terry v. Brighton Aquarium
Co 58
Thomas v. Bradbury & Agnew 93
(Car. Sup. 295) 247
(7 C. & P. 817) 18
& Willett (33 L. J. (M. C.)
22) 53
Thompson (1 Mood. C. C. 78)... 209
214
(32 L. J. (M. C.) 53) 205
([1893] 2 Q. B. 12) ...398, 399
([1910] 1 K. B. 640) 400
([1914] 2 K. B. 99) ...342, 347
Thomson 397
Threlfall 67
Threlkeld v. Smith 198
THURBORN 209
Tite 223
Tivnan, In re 32
Tolfree 203
TOLSON 112
Toms , 346
Topham 89
TOWNLEY 192
TreVelli 360
Turner (8 C. & P. 755) 165
([1910] 1 K. B. 3^6) 432
Tyler & Price (8 C. & P. 616) 21
PAGE
TYLER & OTHERS ([1891] 2
Q. B. 588) 23
Tyrrell 158
Vane 35
Vann 123
Vaughan 71
VILLENSKY 219
Vilmont v. Bcntley 420
Vincent 83
Waite 155
Walker 419
Waller 431
Walsall, Overseers of 285
WARBURTON 108
Ward (5 L. J. K. B. 221) ...4, 121
(10 Cox, 573) 356
Wason V. Walter 93
Watson : 384
Watts 121
W^ebb V. Catchlove (50 J. P.
795) 463
(11 Cox, 133) 363
Webster 158
Wells 532
Westmore v. Paine 470
Weston (14 Cox, 346) 360
([1910] 1 K. B. 17) 477
Westwood 242
Wheatly 240
Wheeler 66
Whitaker 70
Whitbread 382
White (3 Camp. 97) 369
(Dears. C. C. 203) 196
WHITE ([1910] 2 K. B. 854) 12, 13
V. Garden (10 C. B. 927) 230
Whitehorn v. Davison 206
Whitmarsh 143, 396
WilkiuH 231
Wilkinson 309
Willetts 108
Williams (11 Cox, 684) 166
(7 C. & P. 354) 236
([1893] 1 Q. B. 320) 171
V. Bayley (L. R. 1 H. L.
220) ..." 71
Williamson 231
TABLE OF CASES.
XXIX
PAGE
Wilson (1 Den. C. C. 284) 251
([1909] 2 K. B. 756) 456
Windhill Local Board v. Vint ... 416
Wise V. Dunning 293
Wolstenholme 225
Wood 174
Woodhall 215, 452
Woolley 245
Wright (2 F. & F. 320) 341
,'Hill V. (60 J. P. 312) 521
(R. & R. 456) 3«4
PAGE
Wyatt 233, 236
Wylie ". 392
Wynn 202
York's Case 20
Young & Harston, In re 10
ZULUETA 33
C..L
PKINCIPLES
OF
THE CKIMINAL LAW
BOOK I.
INTRODUCTORY CHAPTER.
CRIME.
The term " crime " admits of description rather than
definition. There are no certain and universal intrinsic quali-
ties which at once stamp an act with the character of a crime.
We term a flagitious act a crime rather on account of its
legal consequences than from any regard to such intrinsic
characteristics. One of the most satisfactory explanations of
the term under consideration is " an act or omission forbidden
by law under pain of punishment" (a).
The question at once presents itself, What are the distin-
guishing marks of " punishments " ? This will, perhaps, be
seen most clearly by a contrast. Sanctions (that is, evils
incurred by a person in consequence of disobedience to a
command, and thus enforcing that command) fall under two
heads :
(1) Those which consist in the wrongdoer being obliged to
indemnify the injured party, as by paying him damages.
(2) Some suffering experienced by the wrongdoer.
(a) Mann v. Owen, [1829] 9 B. & C. 599, 602.
C.L. 1
4 CRIME,
In the first case the enforcement of the sanciion is in the
discretion of the injured party (or his representative), and its
object is his compensation.
In the second case the sanction is a punishment imposed
for the public benefit, and enforced or remitted at the dis-
cretion of the sovereign as the representative of the public (6).
Here we arrive at the true distinction between Civil Injuries
or Torts, and Crimes. The difference is not a difference
between the natures of the two classes of wrongs, but a
difference between the modes in which they are respectively
pursued — that is, whether as in the first or second of the cases
mentioned above (c).
That there is nothing in the nature of a crime which, per se,
determines that a particular wrongful act should be neces-
sarily relegated to the category of crime, two considerations
will suffice to show. First, in different countries, and at
different eras in the history of the same country, the line
between civil and criminal is, and has been, utterly different.
For example, at Rome simple theft was regarded as a civil
injury, for which pecuniary redress had to be made. The
second consideration is that the same wrongful act may be
regarded as a crime or a civil injury according as proceedings
are taken with reference to the one or the other sanction. In
the English law the best examples of this are libels and
assaults. The same writing, or the same assault, may be
made the subject of civil or of criminal proceedings. If A.
write of B. that he is a swindler, B. may either indict A. for
the crime, or bring an action against him for the civil
injury {d).
It may be well to interpose an explanation of the courses
open to the injured person when the same wrong is both a
crime and a civil injury. He has not always the power of
choosing in which way he will proceed. The rule is based on
(b) Austin's Jurisprudence, 518.
(c) Austin, 417. A good description of crimes, having in view the true ground
of difference, is given in Bishop, 1 Cr. L. § 43 : " Those wrongs which the
government notices as injurious to the public, and punishes in what is called a
criminal proceeding in its own name."
(d) Austin, 417, 318.
CRIME. 3
the distinction of crimes into felonies and misdemeanours (e).
An action for damages based upon a felonious act on the part
of the defendant, committed against the pUiintiff, is not main-
tainable so long as the defendant has not been prosecuted or
a reasonable excuse shown for his not having been prosecuted,
and the proper course for the Court to adopt in such a case is
to stay further proceedings in the action until the defendant
has been prosecuted (/). In misdemeanours there is no sucli
rule; either proceedings may be taken first, or both may be
pursued concurrently.
Before leaving the subject of the difference between crimes
and civil injuries, two other groundless distinctions may be
adverted to. First, the distinction does not, at the present
day, consist in this, that the mischief of crimes (as a class)
is more extensive than that of civil injuries (as a class).
If we consider the origin of law, and particularly if we
examine the customs and law of some of the primitive
societies still existing in various parts of the wOrld, we find
that the notion of reprisal or vengeance precedes that of com-
pensation. Its enforcement is usually left to the aggrieved
party, but any serious breach of custom may be regarded
as a public offence, so that the offender may incur ^punish-
ment by the community. And, before sin and crime have
been distinguished, the motive for thus punishing serious
offences is the fear that the criminal may bring down upon
the society the anger of the gods, and his punishment
often takes the form of expulsion or outlawry, as in
the Roman law sacratio. While, therefore, it may be
true, as & historical explanation, to say that the possible
mischief of an offence led to its being considered as what we
now call a crime, yet this at the present day is no test of what
is a crime.
Secondly, the moral nature of an act is an element of no
value in determining whether it is criminal or not. On the
one hand, an act may be grossly immoral, and yet it may not
(e) V. p. 6.
(/) Smith V. Selwyv, [1014] 3 K. B. 88; v. also Apvleby v. Franklin, [1886]
17 Q. B. D. 93; Midland Insurance Co. v. SmUh, [1881]'6 Q. B. D. 561.
4 CRIME.
bring the doer within the pale of the criminal law — as in the
case of adultery. " Human laws are made, not to punish sin,
but to prevent crime and mischief " {g). On the other hand,
an act perfectly innocent, from a moral point of view, may
render the doer amenable to punishment as a criminal. To
take an extreme example : W. was convicted on an indictment
for a common nuisance, for erecting an embankment which,
although it was in some degree a hindrance to navigation,
was advantageous in a greater degree to the users of the
port (Ji). Here the motive, if not praiseworthy, was at least
innocent. The fact that the motive of the defendant is
positively pious and laudable does not prevent a conviction if
his act is in itself unlawful (i).
Some acts have been recognised as crimes in the English
law from time immemorial, though their punishments and
incidents may have been affected by legislation. Thus murder
and rape are crimes at common law. In other cases, acts
have been pronounced crimes by particular statutes, which
have also provided for their punishment— e.^., offences against
the Bankruptcy Laws.
It is often of the utmost importance to determine whether
a particular proceeding is a criminal or a civil proceeding.
Thus, the right of appeal which generally exists in civil causes
is, where there is a right of appeal, of a different nature and
form in criminal proceedings. The true test is whether or
not the infliction of punishment follows on the result being
.unfavourable to the defendant. If the end of the proceeding
is that the defendant is required to pay a sum of money, the
question will resolve itself into whether the fine is a debt or a
punishment (J<).
In treating of the Criminal Law, or the Pleas of the
Crown {I), the subject naturally divides itself into two por-
(g) Attorney-General v. Sillem, [1863] 2 H. & C. 526.
(h) R. V. Ward, [18.36] 6 L. J. K. B. 221.
(t) R. V. Sharpe, [1857] 26 L. J. M. C. 47. But v. p. 10.
(fc) Cattell V. Ireson, [1858] 27 L. J. M. C. 167.
(I) So called because the king, in whom centres the majesty of the whole
community, is supposed by the law to be the person injured by every infraction
of the public rights belonging to that community, and is, therefore, in a\l cases
the proper prosecutor for every public offence, 4 Bl. 2.
CRIME. O
tions. The first, dealing with crimes generally and the
various individual crimes, their constituents, their differences,
appropriate punishments, and other incidents, may be termed
— The Law of C Times. The second, dealing with the
machinery by means of which these crimes are prevented, or,
if committed, by means of which they meet with their
punishment, may be termed — The Law of Criminal Procedure.
DIVISIONS OF CRIME.
Crime. Offence. — These terms are sometimes used synony-
mously of the whole class of illegal acts which entail
punishment. Each of them, however, has sometimes a
narrower signification; and in this sense they are opposed to
each other, and divide between them the whole field of acts
which each in its wider sense covers. The latter use is that
which confines the term " offence " to acts which are not
indictable, but which are punished on summary conviction,
or by the forfeiture of a penalty (w,) ; while "crime" is
restricted to those which are the subjects of indictment.
The main classification of indictable crimes is threefold
— Treason, Felony, Misdemeanour — though " treason " is
strictly included in the term " felony."
Indictable Crimes. — All treasons, felonies, and mis-
demeanours, misprisions of treason and felony, whether
existing at common law or so created by statute, are the
subjects of indictment. So also are all attempts to commit
any of these acts (n). Further, if a statute prohibits a
matter of public grievance, or commands a matter of
public convenience (such as the repairing of highways or
the like), all acts or omissions contrary to the prohibition or
command of the statute are misdemeanours at common law,
and are punishable by indictment, if the statute does not
manifestly exclude this mode of proceeding (o). But it is
otherwise if the rights which are regulated are merely private.
(m) V. Lee v. Dangar, Grant dt Co., [1892] 2 Q. B. at pp. 347, 348.
(n) V. p. 12.
(o) R. V. Hall, [1891] 1 Q. B. 747; v. p. 307.
b CRIME.
Misprision. — In general this term signifies some neglect or
contempt, especially when a person, without assenting thereto,
knows of any treason or felony and conceals it (p). But it
has also been applied to every great misdemeanour which has
no certain name given to it in the law; for example, the
maladministration of public officers.
Felony. Misdemeanour.- — In distinguishing felony from
misdemeanour as in distinguishing a crime from a civil injury,
we shall also find that the difference is only one founded on
the consequences of each. It is a popular idea that the
present distinction between felonies and misdemeanours is one
founded on the degree of enormity of the crime. That this
is not necessarily the case will be seen when we consider what
offences belong to the one class and what to the other. No
one will maintain that perjury, which is a misdemeanour, is
of less gravity than simple larceny, which is a felony. As a
rule, however, the more serious crimes are felonies.
The origin of the word " felony " is very doubtful (q), but
in feudal times it was understood to mean a crime which
resulted in the forfeiture of the land of the criminal to the
lord of the fee, although it must be admitted that to this
rule there were one or two exceptions. By a slight deflection
the term was extended to offences which involved forfeiture
of goods. Blackstone thus defines a felony to be " an offence
which occasions a total forfeiture of either lands or goods, or
both, at the common law; and to which capital or other
punishment may be superadded according to the degree of
guilt " (r). Capital punishment, indeed, usually followed
upon a conviction for felony, the exceptions being petty
larceny and mayhem.
It may be noticed that where a statute declares that an
offender against its provisions shall be deemed to nave
feloniously committed the act, the offence is thereby made a
felony (s).
(p) V. pp. 39, 79. ...
Iq) For various derivations, see Murray's " New English Dictionary," sub
tit. "Felon."
(r) 4 Bl. 96.
(») R. V. Johnson, [1815] 3 M. & S. 556.
CHIME.
" Misdemeanour " is to be regarded as a negative expression,
being applied to indictable crimes not falling within the class
of felonies.
In the year 1870 the Legislature struck at the root of the
distinction we have been treating of; but the terms " felony "
and " misdemeanour," having become firmly attached to the
various indictable offences, still remain. It was provided that
no confession, verdict, inquest, conviction, or judgment of or
for any treason, or felony, or felo de se, should thereafter
cause any attainder or corruption of blood, or any forfeiture
or escheat (t).
In addition to the distinction as to forfeiture, which we
have just seen to be a thing of the past, there are other points,
some nominal, others real, which distinguish felonies from
misdemeanours. The following are the most important :
(i) As to arrest. — It will suffice here to state generally that
an arrest without warrant is justifiable in certain cases of
supposed felony, where it would not be in cases of supposed
misdemeanour (u).
(ii) As to the parties implicated. — The distinction between
principals and accessories is recognised only in felonies (w).
(iii) As to the trial. — Misdemeanours may be tried upon an
indictment, inquisition, or information; felonies upon the
first two only.
The right of peremptory challenge to jurors is confined to
cases where the prisoner is indicted for felony.
On minor points there is also a difference, e.g., the form
of oath taken by the jury (x) ; again, in misdemeanour the
defendant is not given in charge to the jury (y) ; and in
felonies the prisoner must be present throughout the trial,
while a case of misdemeanour may be tried although the
accused be not present, if he have previously pleaded (z). In
many cases of misdemeanour the person accused is entitled to
it) 33 & 34 Vict. c. 23, s. 1.
(a) V. pp. 293—296.
(w) V. p. 25.
(x) V. p. 357.
(y) V. p. 358.
(z) Archbold, 169.
8 CUIME.
be released on bail while awaiting his trial, whereas this is
not the case if the charge is one of felony (a).
(iv) As to the civil remedy. — As we have seen (6), the
felony should be prosecuted before a civil action is commenced
against the guilty person with reference to the same act;
in misdemeanour there is no such necessity.
(o) V. p. 301 et seq. (b) v. p. 3.
CHAPTER II.
ESSENTIALS OF A CRIME.
In order to ascertain who are and who are not capable of
committing crime, it will be necessary to examine certain
terms which are liable to confusion.
In the first place we must deal with those mental elements
which occur in every case of crime, and the absence of which
(except in a limited number of cases to which we will refer)
excludes the act from the category of crimes, viz., Will and
Criminal Intention or Mens rea. In dealing with these we
must necessarily consider the external or physical facts which
create criminal liability, i.e., Acts and their Consequences,
and in relation to will and intention we must further
consider Motive. All these five terms have received many
definitions, and moreover are frequently used, even by
lawyers, with somewhat different shades of meaning. It is
perhaps safer, therefore, to attempt a broad explanation rather
than definition.
The term Act denotes, strictly speaking, only such physical
facts as follow immediately upon a determination of the will
to effect them : Acts therefore are said to be willed.
Consequences, on the other hand, are the results which follow
as the effect of the act and to the attainment of which the
act is directed; consequences, therefore, are said to be intended
— i.e., aimed at. Thus if I strike a match, the act is the
muscular movement of striking to which my will is
determined; the intended consequence is the ignition of the
match. (The distinction between act and consequences is,
however, frequently disregarded, and an act with its immediate
consequences, e.g., the whole process of lighting the match,
is spoken of as an act.) Since acts are willed, a man does an
10 ESSENTIALS OF A CHIME.
act wilfuUy when he is a free agent and what is done arises
from the spontaneous action of his will (c), when his act is
done, not by accident or inadvertence, but so that his mind
goes with it {d). If the act be not willed, it is said to be
involuntary and does not render its doer amenable to the
criminal law. An omission to act may, similarly, be either
wilful or involuntary.
Intention and Motive.— The term "intention " has reference
to the effect which is aimed at by an act, either, as above
illustrated, to the consequences, or to the jiurpose which will
ultimately be effected, as, e.g., in the expression " Assault with
intent to rob." (It may also have another looser meaning, as
when a man says that he " intends " to do something to-
morrow.) Intention must always be carefully distinguished
from motive, which is the incentive to acts. Motive, speaking
broadly, is a term applicable to any mental condition or
consideration which induces us to particular conduct, as, for
example, a mere feeling of hostility which induces one man
to libel another, or the desire of winning a scholarship which
induces a student to work. It is not correct to say that
motive is immaterial in determining whether conduct is
criminal. It is true that, if conduct is per se criminal, the
fact that the motive was innocent is no defence; but in
some caises, on the other hand, the presence or absence of a
particular motive may determine the criminality of con-
duct (e) ; and, further, the presence or absence of motive may
be a clue as to the existence of intention — thus if A. kills B.,
the presence or absence of motive may be a clue as to whether
the killing was intended or unintended. Intent, however, is
much more material than motive in determining the character
of conduct, and the same conduct may or may not amount to
a crime according to the intention. For example, A. takes
a horse from the owner's stable without his consent. If he
intend fraudulently to deprive the owner of the property and
appropriate the horse to himself he is guilty of the crime
(c) Young d Harston, In re, [1886] 31 C. D.. at p. 175.
(d) R. V. Senior, [1899] 1 Q. B., at p. 290; 68 L. J. Q. B. 175
(e) V. pp. 15, 149.
ESSENTIALS OF A CRIME. 11
of larceny. If he intend to use it for a time and then return
it, it is a mere trespass which is only a civil injury (/). It
should be noted that, if there be present a criminal intention,
the prisoner is not exculpated because the results of the steps
which he takes to carry out that intention are other than
those which he anticipated. For example, if A., intending
to murder B., shoots at him, but kills C, the intention {i.e.,
to shoot B.) being criminal and felonious, A. is guilty of
murder.
Malice. — The law presumes that every person intends the
natural consequences of his acts. If a man voluntarily does
an act from which harm naturally arises he is deemed to
intend harm (g). Malice, therefore, is deemed to exist when-
ever a wrongful act is done voluntarily without justification
or excuse (h). This is sometimes termed malice in law or
implied malice, to distinguish it from malice in fact or easpress
malice, i.e., actual hostility or ill will, which may be a motive
for conduct, and may have other effects which will be noted
later {%).
To make a person a criminal he must as a general rule have
a mens rea, i.e., some guilty or culpable condition of mind.
Thus if I offer a forged note, not knowing it to be such and
therefore not intending to defraud, I have committed no
crime. But if I have such intention, this criminal intention
stamps my conduct with the character of crime. The criminal
condition of mind necessary for any particular offence varies
according to the rules of the common law or the statute
relating to that offence, and which may require that an act
in order to be criminal must have been done " maliciously,"
" feloniously," " fraudulently," or with some particular
"intent." Generally it may be classed as
(i) Active — When the mind is actively or positively in fault,
as where there is an intent to defraud, or
(/) R. V. Holloway, 2 C. & K. 942; 18 L. J. M. C. 60.
(g) R. V. Harvey, 2 B. & C, at p. 864.
(h) Bramane V. Prosser, 4 B. & C, at p. 255.
(t) V. p. 93
V^ ESSENTIALS OF A CRIME.
(ii) Passive — Where the conduct is the result of in-
advertence.
There are, however, some exceptions to the rule that mens
rea is necessary to constitute a crime. It is impossible to
systematise or define these exceptions, which, however, except
in the case of public nuisances, relate for the most part only
to minor offences created by statute, and particularly to
offences such as the adulteration of food, or the sale of food
under false trade descriptions, or the sale of intoxicants [k).
In many of such cases the Court has come to the conclusion
that the object of the statute would be defeated if guilty
knowledge or intention were held to be necessary to constitute
the offence, and therefore that criminal responsibility may be
fixed upon a man for acts done by his servant in the course
of his employment, even though the master may have
expressly forbidden them. The same principle applies to
"some and perhaps all public nuisances" (Z). No general rule
can be laid down as to when mens rea is necessary to constitute
a statutory offence, and it is necessary to look at the object
and terms of each act to see whether, and how far, knowledge
or any criminal intention is of the essence of the offence
created (m).
Though a mere intention is not punishable if no steps are
taken to carry it into effect, an atteTnpt to commit either a
felony or a misdemeanour is itself a crime, and therefore the
subject of punishment. An attempt may be said to be the
doing of any of the acts which must be done in succession
before the intended object can be accomplished, with the
limitation that it must be an act which directly approximates
to the offence, and which, if the offence were committed, would
be one of its actual causes as distinct from a mere act of
preparation (n). Thus A., with the intention of endeavouring
(fc) See Sherras v. De Rutzen, [1895] 1 Q. B., at p. 921; 64 L. J. M. C. 218;
Coppen V. Moore, [1898] 2 Q. B., at p. 312; 67 L. J. Q. B. 689.
(l) [1895] 1 Q. B., at p. 921.
(m) Cundy v. Le Cocq, [1884] 13 Q. B. D., at p. 209. Compare Chisholm v.
Doulton, 22 Q. B. D. 736; 58 L. J. M. C. 133.
(n) R. V. White, [1910] 2 K. B. 124; 79 L. J. K. B. 85'4; R. v. Linneker, 75
L. J. K. B. 385. ,
ESSENTIALS OF A CRIME. 13
fraudulently to obtain insurance moneys, represented that a
burglary liad taken place at bis shop and tbat jewellery had
been stolen. He had, in fact, hidden the jewellery in his shop,
and was found by the police tied up as if by burglars. He
had made no application for the insurance. It was held that
he had not yet made any attempt, but only preparation for an
attempt which he contemplated (o). But one of a series of
acts done to attain a desired result may be an attempt
although it could not effect the result unless followed by other
acts. For instance, the giving of a small dose of poison, which
would not be fatal unless followed by other doses, may be an
attempt to murder (p).
An attempt to commit a crime which in fact, owing to the
circumstances of the case, cannot be committed, is neverthe-
less punishable as an attempt. Thus a person may be
convicted of attempting to steal from a pocket, although that
pocket may have contained nothing that could be stolen (q).
Every attempt to commit an indictable offence is itself an
indictable misdemeanour at common law. In one case, i.e.,
attempt to murder, it is a felony by statute (r).
If on the trial of a person charged with felony or mis-
demeanour the jury do not think that the offence was
completed, but, nevertheless, are of opinion that an attempt
was made, they may find a verdict to that effect. The prisoner
is then dealt with as if he had been convicted on an
indictment for the attempt (5).
(0) R. V. Robinson, [1915] 2 K. B. 342; 84 L. J. K. B. 149.
(p) R. V. White, supra.
(q) R. V. Ring, 61 L. J. M. C. 116. He might also properly be charged with
assault with intent to commit a felony ; v. p. 175.
(r) 24 & 25 Vict. c. 100, ss. 11—15.
(s) 14 & 15 Vict. c. 100, s. 9.
CHAPTER III.
PERSONS CAPABLE OF COMMITTING CRIMES.
There are certain exemptions from criminal responsibility;
and, under certain circumstances, acts which would otherwise
be criminal are on some special ground not deemed so. The
personal exemptions are based upon exceptional considerations
and will be dealt with at the end of this chapter. Apart from
these special cases the exemption, as a. rule, arises from the
absence of one of the essential elements dealt with in the
preceding chapter. The burden of proving the circumstances
which confer the exemption lies upon the accused. The law,
in the first instance, presumes that he is innocent. But as
soon as it is proved that he has committed what, ordinarily,
is a criminal offence, the law, as we have seen, presumes that
his acts were voluntary and that he intended their natural
consequences, and therefore had a criminal intention.
Accordingly it is for the accused to rebut these presumptions.
So also it is for him to prove any matters which, under the
special circumstances of the case, may amount to a
justification or excuse.
The several instances of irresponsibility may be reduced to
the following classes: —
(1) Absence of criminal intention: — Insanity: Infancy:
Ignorance (mistake) : Accident.
(2) Absence of will, i.e., the act is purely involuntary: —
Physical compulsion, as if A. kills B. with C.'s hand.
(3) Instant and well-grounded fear, which either is, or
in theory is assumed to be, stronger than the fear naturally
inspired by the law : —
Fear of excessive unlawful harm : Coercion of married
women by their husbands.
PERSONS CAPABLE OF COMMITTING CRIMES. 15
(4) When an act, under ordinary circumstances criminal,
is denuded of tliat character, inasmuch as it is directly
authorised by the law : —
In pursuance of legal duty; e.g., the sheriff hanging
a criminal.
In pursuance of legal right; e.g., slaying in self-
defence.
Here the Tuofive of the accused justifies or excuses his act.
Thus if A. kills B. in a fight, his intention, viz., to do harm
to B., is the same whether he is acting purely in self-defence
or from revenge or a desire to fight (5.'?), but in the former
case his motive is one which is lawful and therefore exemptf-
him from criminal responsibility.
Some of these grounds of exemption must now be dealt witli
more fully.
Insanity.— Two classes of mental alienation are usually
recognised : —
(1) Dementia naturaUs, or a nativitate — in other words,
idiocy, or absence of understanding from birth, without
lucid intervals. A person deaf and dumb from birth is
by presumption of law an idiot, but it may be shown that
he has the use of his understanding.
(2) Dementia accidentalis, or adventitia — usually termed
insanity. The mind is not naturally wanting or weak, but
is deranged from some cause or other. It is either partial
(insanity upon one or more subjects, the party being sane
upon all others) or total. It is also either permanent or
temporary, the person in the latter case being afflicted with
his disorder at certain periods only, with lucid intervals (t).
Three stages in the history of the law as to insanity may
be discerned. The first may be illustrated by the following
dictum of an English Judge in the year 1724 : A man who
is to be exempted from punishment " must be a man that
is totally deprived of his understanding and memory, and
(ss) V. p. 149.
(t) As to dementia affectata, or drunkenness, v. p. 18.
16 PERSONS CAPABLE OF COMMITTING CRIMES.
doth not know what he is doing, no more than an infant,
than a brute, or a wild beast " (u). In the second stage the
power of distinguishing right from wrong in the abstract was
regarded as the test of responsibility^^). The third" and
existing doctrine dates from the trial of M'Naughten in the
year 1843 (x).
In M'Naughten's case certain questions were propounded
by the House of Lords to the Judges, The substance of their
answers was to the following effect : " 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
wa^ labouring under such a defect of reason, from disease^ of
the mind, as not toJbiQSL-thg_nature and quality^ of the act
^ he was doing, or, if he^ did know it, that he did not know
^J he was doing Tijawrt was wrong." Thus the question of
'^ knowledge of right or wrong, instead of being put generally
and indefinitely, is put in reference to the particular act at
the particular time of committing it.
As to partial insanity, that is, when a person is sane on
all matters except one or more, the judges declared that " 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 hiin in revenge
for such supposed injury, he would be liable to punishment,"
And again : " Notwithstanding the party accused did the act
complained of with a view, under the influence of insane
delusioh, of redressing or revenging some supposed grievance
or injury, or of producing some public benefit, he is neverthe-
less punishable if he knew at thejbime of committing such
crime that he was acting contrary to the law of the land."
(u) R. V. Arnold, [1724] 16 How. St. Tr. 764.
(w) R. V. Bellingham, [1812] Collinson on Lunatics, 671.
(x) 10 CI. & Fin. 200; 1 C. & K. 130.
PERSONS CAPABLE OF COMMITTING CRIMES. 17
An irresistible impulse affords no defence if it is due to
mere moral insanity, i.e., when, although the moral faculties
of the accused are diseased, his intellectual faculties are
sound so that he knows what he is doing. But a man may be
insane if, through actual disease of the mind, he is deprived
of the capacity to control his actions {y).
As to medical evidence on the question of insanity — a
witness of medical skill may be asked whether, assuming
certain facts, proved by other witnesses, to be true, they,
in his opinion, indicate insanity. But he cannot be asked,
although present in Court during the whole trial, whether
from the evidence he has heard he is of opinion that the
prisoner, at the time he committed the alleged act, was of
unsound mind; for such a question, unlike the previous one,
involves the determination of the truth of the evidence, which
it is for the jury to determine {z).
The law presumes sanity : and, therefore, the burden of
the proof of insanity lies on the defence (a). Even in the
case of an acknowledged lunatic, the offence is presumed to
have been committed in a lucid interval, unless the contrary
be shown. It is for the petty jury to decide whether a case
of insanity, recognised as such by the law, has been made
out. The grand jury have no right to ignore a bill on the
ground of insanity (6).
When evidence is given of the insanity of the prisoner at
the time of commission of the offence, and it appears to the
jury that he did the act charged, b^^t was insane at the time
when he committed it, they must find a special verdict to
the effect that the accused is guilty, but was insane at the
time of the commission of the offence. If such a verdict is
found the Court will order the accused to be kept in custody
as a criminal lunatic in such place and in such manner as
it shall think proper, till the King's pleasure be known; and
the King may order the confinement of such person during
iy) R. V. Hay, 22 Cox, 268; R. v. Fryer, 24 Cox, 403; v. also Archbold, p. 17.
(z) R. V. Frances, [1849] 4 Cox, 57. See also M'Naughten's Case.
(a) R. V. Jefferson, [1908] 72 J. P. 467, 469.
(b) R. V. Hodges, [1838] 8 C. & P. 195.
C.L. ' 2
18 PERSONS CAPABLE OF COMMITTING CRIMES.
his pleasure (c). So if a person indicted is insane, and upon
arraignment is found to be so by a jury impanelled to discover
his state of mind, so that he cannot be tried, or if on his
trial, or when brought up to be discharged for want of
prosecution, he appears to the jury to be insane, the Court
may record such finding, and order him to l^e kept in custody
till the King's pleasure be known {d).
In accordance with the dictates of humanity no criminal
proceedings can be taken against a man when he becomes non
compos Tuentis. Thus, if a man commit murder and become
insane before arraignment, he cannot be called upon to plead :
if after trial before judgment, judgment cannot be pro-
nounced; if after judgment before execution, execution will
be stayed.
Drunkenness. — Drunkenness is sometimes termed dementia
affectata — acquired madness. A state of voluntary in-
toxication is not, properly speaking, any excuse for crime (e).
It would, however, be incorrect to say that the consideration
of drunkenness is never entertained in the criminal law.
Though it is no excuse for crime, yet it is sometimes an index
of the quality of an act. Thus, in a case where the intention
with which the act was done is the essence of the offence, the
drunkenness of the accused may be taken into account by
the jury when considering the motive or intent with which
he acted; for example, on the question whether a person wlio
struck a blow was excited by passion or acted from ill-will;
whether expressions use^ by the prisoner were uttered with
a deliberate purpose, or were merely the idle expressions of a
drunken man (/). So a person cannot be said to have intended
suicide if he were so drunk that he did not know what he
was doing {g). And to rebut the presumption that a man is
taken to intend the natural consequences of his acts it may
(c) 46 & 47 Vict. c. 38, s. 2.
(rf) 39 & 40 Geo. III. c. 94, s. 2.
(e) V. Pearson's Case, [1835] 2 Lew. C. C. 144.
(/) R. V. Thomas, [1837] 7 C. & P. 817 ; v. also R. v. Cruse, [1838] 8 C. & P.
541 ;'E. V. Doherty, [1887] 16 Cox. 306.
iff) R. V. Moore, [1852] 3 C. & K. 319.
PERSONS CAPABLE OF COMMITTING CRIMES. 19
be shown that his mind was so affected by drink that he was
incapable of knowing that what h^ was doing was likely to
inflict serious injury (h).
If the drunkenness be involuntary — as, for example, if it
be by the contrivance of the prisoner's enemies — he will not
be accountable for his action while under that influence (?').
Also, if drunkenness has been so far persisted in as to produce
the disease of insanity, or such a degree of madness (as
delirium tremens), even for a time, as to render a person
incapable of distinguishing right from wrong, this, equally
with other kinds of mental disease, may be pleaded in
defence (/i).
Infancy. — Infancy can be used in defence only as evidence
. of the absence of criminal intention, though there are certain
presumptions of law on the subject, some of which may, and
some may not, be rebutted.
The age of discretion, and therefore of responsibility, varies
according to the nature of the crime. What the civil law
technically terms " infancy " does not terminate till the age
of twenty-one is reached; but this is not the criterion in
criminal law. Two other ages have been fixed as points with
reference to which the criminality of an act is to be
considered.
Under the age of seven, an infant cannot be convicted of
a felony, or even, it is stated, of any indictable offence (?) ; for
until he reaches that age he is presumed to be doli incapax;
and the law does not permit this presumption to be rebutted
by even the clearest evidence of a mischievous discretion (m).
Between seven and fourteen, he is still, prima facie,
deemed by law to be doli incapax; but this presumption may
be rebutted by clear evidence of a mischievous discretion, or,
in other words, that the person accused had a guilty
knowledge that he was doing wrong {n), the principle of the
{h) R. V. Meade, [1909] 1 K. B. 895, 899; 78 L. J. K. B. 476. Pv . 'V , 8<ivV
(i) Archbold, 20. i a r
ik) R. V. Davis, [1881] 14 Cox, 563. / d wi
(l) Archbold, 10. ^-i . '/
(m) A prasumptio juris et de jure.
(n) A prcBSumptio juris. See R. v. Oicen, [1830] 4 C. & P. 236.
20 peksojvs capable of committing crimes.
law being malitia supplet a^tatem. Thus, it was held that a
boy of nine years might be hanged for murder, having
manifested a consciousness of guilt, and a discretion to
discern between good and evil, by hiding the body (o). There
is one exception to this rule, grounded on presumed physical
reasons. A boy under the age of fourteen cannot be convicted
of rape or similar offences, even though he has arrived at the
full state of puberty (p). He may, however, be convicted as
principal in the second degree, i.e., of aiding and assisting
others, if he be proved to be of a mischievous discretion (q).
Between fourteen and twenty-one, an infant is presumed to
be doli capax, and accordingly, as a rule, may be convicted
of any crime. But this rule is said to be subject to exceptions,
notably in the case of offences consisting of mere non-
feasance— as, for example, not repairing highways. It is
given as a reason for the exemption in cases of the latter
character that, not having the command of his fortune till
he is twenty-one, the person wants the capacity to do those
things which the law requires (r). The extent and even the
existence of those exceptions is, however, doubtful {s).
Though, as we have seen, infants who have arrived at years
of discretion are not allowed to commit crimes with impunity,
we shall find that in certain cases the law deals with juvenile
offenders in an exceptional way, in order, if possible, to
prevent their becoming confirmed criminals {t).
' Ignorance (including mistake).- — Two kinds of ignorance
must be distinguished — Ignorance of Law, Ignorance of
Fact. It is a leading principle of English law that ignorance
of law in itself will never excuse. Though it is implied in
some of the excuses of which we have treated, e.g., infancy,
the ignorance of the law is not the ground of exemption. It
is no defence for a foreigner charged with a crime committed
(o) Archbold, 11. v. York's Case, [1748] Fost. 70.
(p) R. V. Jordan, [1839] 9 C. & P. 8.
iq) R. V. Eldershaw, [1828] 3 C. & P. 896.
(r) 4 Bl. 22.
is) Archbold, 14.
t) Summary convictions of infants will be dealt with in a special chapter.
PERSONS CAPABLE OF COMMITTING CRIMES. 21
in England that he did not know he was doing wrong, even
though the act is not an offence in his own country (u).
Ignorance or mistake of fact will or will not excuse,
according as the original intention was or was not lawful.
For example, if a man, intending to kill a burglar breaking
into his house, kill his own servant, he will not be guilty of
an offence. But if, intending, without any legal justification,
to do grievous bodily harm to A., he, in the dark, kill B., he
will be guilty of murder.
Accident, &c. — To be valid as an excuse, the accident must
have happened in the performance of a lawful act with due
caution. For example. A., properly pursuing his work as a
slater, lets fall a slate on B.'s head; B. dies in consequence of
the injury. Here A. will not be liable; but it would have
been otherwise had he at the time been engaged in some
criminal act, or if he had not exercised proper skill or care.
We shall find cases of this description most frequently in
drawing the line between culpable and excusable homicide.
The third division comprises cases where the act is done
under a fear stronger than that which the law inspires.
Fear of Great and Unlawful Harm. — It is believed that in
only one class of cases, viz., where compulsion by threats has
been applied by rebels or rioters, has the excuse been allowed
that an offence was committed under threats of personal
violence or injury (iv), the reason given for the exception
being that in times of public insurrection and rebellion the
person offending may be under so great pressure as to be
unable to resist, there being no legal, tribunal or officer of
justice to whom he can appeal. But in a time of peace,
though a man be violently assaulted, and have no other
possible means of escaping death but by killing an innocent
person, if he commit the act he will be guilty of murder; for
he ought rather to die himself than escape by the murder of
(u) R. V. Esop, [1836] 7 C. & P. 456.
iw) R. V. M'Growther, 18 How. St. Tr. 391; 2 St. Hist. Cr. Law, 106.
V. also R. V. Crutchley, [1831] 5 C. & P. lS3; and R. v. Tyler and Price,
[1838] 8 C. & P. 616.
22 PERSONS CAPAliLE OF COMMITTING CHIMES.
an innocent man. But in such a case he may kill his
assailant (^x).
State of Married Women. — In many cases of felony, if a
married woman commits the crime in the presence of her
husband, the law presumes that she acts under his coercion,
and therefore excuses her from punishment. But this
exemption is not allowed in treason, nor even in all felonies,
though it is not well settled where the line is drawn. It
appears, however, that in murder, at all events, this
protection is not allowed to the wife {y). In no case is she
excused if her husband be not present, not even if the act be
done by his order [z). The presumption of law may be
rebutted by evidence. Thus, if it can be shown that she acted
voluntarily, and was the principal actor and inciter of the
crime, she may be convicted, although her husband were
present {a).
In cases of misdemeanour the prevailing opinion seems to be
ihat the wife is responsible for her acts, although her husband
was present at the commission (b). However, in earlier cases
this was doubted, and the rule prevailing in felony applied (c).
At any rate, the exemption does not extend to those offences
relating to domestic matters and the government of the house,
in which the wife may be supposed to have a principal share,
as in keeping a disorderly or gaming house.
It requires the co-o])eration of two persons at least to con-
stitute a conspiracy. Of this crime, therefore, a husband and
wife cannot by themselves be convicted, inasmuch as in the
eye of the law they are regarded as one person. So a wife
cannot be convicted of stealing her husband's goods, except
under the Married Women's Property Act, 1882 (d); nor of
harbouring him when he has committed a crime.
(x) V. p. 140.
(«) R. V. Manning, [1849] 2 C. & K. 903.
(z) Brown v. Att.-Gen. of New Zealand, [1898] A. C. 234: 67 L. J. P. C. 7.
(o) Archbold, 21 ; R. v. Raines, [1900] 69 L. J. Q. B. 681.
(b) R. V. Cruse, [1838] 8 C. & P. 541; v. Archbold, 21.
(c) R. V. Price, [1837] , 8 C. & P. 19.
(d) 45 & 46 Vict. c. 75, s. 16; now reproduced by 6 & 7 Geo. 5, c. 50, a. 36;
V. p. 203.
TERSOXS CAPABLE OF COMMITTING CRIMES. 23
This relation of wife to the husband is the only one which
the law recognises as a shield from criminal punishment.
The other private relations, parent and child, master and
servant, will not excuse the commission of any crime; either
child or servant being liable, notwithstanding the command
or coercion of the parent or master.
Certain exceptional cases, where the ordinary rules as to
the capability of committing crime do not entirely prevail,
require a brief notice.
The Sovereign. — The Sovereign can do no wrong; therefore-
he is not amenable to the ordinary criminal Courts of his
kingdom. But although it is presumed that he can do no
wrong, yet if he commands an unlawful act to be done, e.g.,
an unlawful arrest, the person doing it is not indemnified, but
is punishable.
Corjwrations. — Even corporations aggregate, such as rail-
way and other companies, may be indicted by their corporate
names for breaches of duty; whether such breaches consist
of wrongful acts, e.g., obstructing highways, or wrongful
omissions, e.g., neglecting to repair bridges (e).
Aliens. — Foreigners who commit crimes in England are
punishable exactly as if they were natural-born subjects. It
is no defence on behalf of a foreigner that he did not know he
was doing wrong, the act not being an offence in his own
country. Though this is no defence, it may mitigate the
j)unishment (/).
Ambassadors. — Different views, materially conflicting with
each other, have been held as to the criminal liability of
ambassadors and their suites. Most writers maintain that for
no ofi'ence, whether it be against the life, person, or property
of an individual, is an ambassador amenable to the criminal
(c) R. V. Great North of England Railway Co.. [1846] 9 Q. B. 315; R.
Tyler ,i Others, [1891] 2 Q. B. 588; 61 L. J. M. C. 38.
If) R. V. Esop, [1836] 7 C. & P. 456. ^
24 PERSONS CAPABLE OF COMMITTING CRIMES.
law of the country to which he is sent (g) : for, by the fiction
of exterritoriality, he is regarded as continuously resident in
the State of which he is the representative (h). Others assert
that though he is not punishable for crime made such by the
laws of the particular country, he is so for any great crimes
which must be such in any system. Or, as it is sometimes
expressed, he is punishable for Tnala in se, but not for acts
which are merely Tnala quia prohibita. Thus, upon this view,
which is, however, very doubtful, an ambassador might be
convicted for murder or rape, but. not for smuggling. There
is, however, one class of offences which, if committed by an
ambassador or one of his suite, might stand on a different
footing, namely, offences affecting the existence and safety
of the State. For a direct attempt against the life of the
Sovereign, it is said that the offender would be directly
punishable by the State (i).
(q) Phillimore's International Law, vol. ii. part vi. c. 7.
(h) Foote's Foreign and Domestic Law, pp. 165, 554.
(»•) 1 Hale, P. C. 96—99; Fost. 187, 188.
CHAPTER IV.
PRINCIPALS AND ACCESSORIES.
Those who are implicated in the commission of crimes
are either Principals or Accessories. This distinction is
recognised in felonies alone.
Principals are either
Principals in the first degree, or Principals in the second
degree.
Accessories are either
Accessories before the fact, or Accessories after the fact.
Of these in their order : —
Principal in the first degree. — He who is the actor or actual
perpetrator of the deed. It is not necessary that he should be
actually present when the offence is consummated ; thus, one
who lays poison or a trap for another is a principal in the
first degree. Nor need the deed be done by the principal's
own hands; for it will suffice if it is done through an innocent
agent, as, for instance, if one incites a child or a madman to
murder {k).
Principal in the second degree. — One who is present aidiiig
and abetting at the commission of the deed. This presence
need not be actual; it may be constructive. That is, it will
suffice if the party has the intention of giving assistance, and
is sufficiently near to give the assistance ; as when one is
watching outside, while others are committing a felony inside
the house. There must be both a participation in the act and
{k) R. V. Michael, 9 C. & P. 356; R. v. Bleasdale, 2 C. & K. 765.
26 PRINCIPALS AND ACCESSOEIES.
a community of purpose (which must be an unlawful one) at
the time of the commission of the crime. So that, as to the
first point, mere presence or mere neglect to endeavour to
prevent a felony will not make a man a principal; as to the
second, acts done by one of the party, but not in pursuance of
the arrangement, will not render the others liable.
The distinction between principals of the first and of the
second degree is not practically a material one, inasmuch as '
the punishment of offenders of either class is generally the
same.
Accessories are those who are not (i) the chief actors in the
offence, nor (ii) present at its performance, biit are some way
concerned therein, either before or after the fact committed.
Accessory before the fact. — One who, being absent at the
time when the felony is committed, yet procures, counsels,
commands, or abets another to commit a felony {I). The bare
concealment of a felony about to be committed does not make
an accessory. It is not necessary that there should be any
direct communication between the accused and the principal :
e.g., if A. requests B, to procure the services of C. in order
to murder D., A. will be an accessory.
The accessory will be answerable for all that ensues upon
the execution of the unlawful act .commanded, at least for all
probable consequences: as, for instance, if A, commands B.
to beat C, and he beats him so that he die, A. is accessory to
the murder. But if the principal intentionally commits a
crime essentially different from that commanded, the person
commanding will not be answerable as accessory for what he
(lid not command. Thus, if A. commands B. to break into
C.'s house, and B. sets fire to the house, A. cannot be con-
victed of the arson. But a mere difference in the mode of
effecting the deed, or in some other collateral matter, will not
divest the commander of the character of accessory if the
felony is the same in substance. Thus, if A. commands B to
kill C. by poison, and he kills him with a sword, A.'s command
suffices to make him an accessory {m).
{I) Archbold, 1375. (m) Archbold, 1376.
PRINCIPALS AND ACCESSORIES. 4 1
xWith regard to manslaughter. — As a rule the offence is
sudden and unpremeditated, and this view of the nature of
the crime having been taken, it has been said that there can be
no accessory before the fact in manslaughter. But in many
eases there is deliberation, though it is not accompanied by
an intention to take away life. It is easy to present a case in
which there may be an accessory before the fact to man-
slaughter. A. counsels B. to mischievously give C. a dose of
medicine merely to make him sick, and C. dies in con-
sequence. A. is guilty as an accessory before the fact to the
manslaughter {71).
As to the trial of those who command, counsel, or procure
the commission of a felony. — Until a recent date it was the
rule that such a person could not without his own consent be
tried except at the same time with the principal or after the
principal had been tried and found guilty. He was merely
an accessory, and therefore he could not be tried before the
fact of the crime was established. Now, however, it is pro-
vided that an accessory before the fact may be indicted, tried,
convicted, and punished in all respects as if he were a prin-
cipal felon (o). Two courses are therefore open to the prose-
cution: either (a) to proceed, as formerly, against the person
who counsels, «!Jcc., as an accessory before the fact, together
with the principal felon, or after his conviction ; or (b) to
indict the counsellor for a substantive felony (for to that his
offence is declared by the statute to amount), and this may be
done whether the principal has or has not been convicted, and
although he is not amenable to justice (p). The punishment
in either case is the game. If one of these two modes has
been adopted, of course the offender cannot be afterwards
prosecuted in the other. To convict of the substantive felony
under this Act, it is still necessary to prove that the principal
deed has actually been committed.
To solicit or incite to the commission of a felony or a
(n) R. V. Gaylor, [1857] 7 Cox, 253.
(0) 24 & 25 Vict. c. 94, s. 1; and as to larceny, etc., see Larceny Act, 1916„
35.
(p) 24 & 25 Vict. c. 94, s. 2.
28 I'RINCirALS AND ACCESSORIES.
misdemeanour, if the deed is not committed, is a misde-
meanour at common law (q).
Accessory after the fact. — One who, knowing a felony to
have been committed by another, receives, relieves, comforts,
or assists the felon (r). AVhat is required to make a person
an accessory after the fact? (i) There must have been some
felony committed and completed; (ii) the party charged must
have had notice, direct or implied, at the time he assisted, &c.,
the felon, that he had committed a felony; (iii) he must have
done some act to assist the felon personally. It will suffice if
there has been any assistance given in order to hinder the
felon's apprehension, trial, or punishment; for example, con-
cealing him in the house, or supplying him with horse or
money to facilitate his escape, or destroying or making away
with evidence which might be used against him (s). But
merely suffering the principal to escape will not make the
party an accessory after the fact {t).
Receiving stolen goods, knowing them to have been stolen,
is generally treated as a separate offence ; the receiver being
convicted of a felony, misdemeanour, or summary offence,
according as the stealing of the property is a felony, mis-
demeanour, OB offence punishable on summary conviction (v).
If, however, the stealing, obtaining, &c., is a felony, the
receiver may be indicted either as an accessory after the fact,
or for a substantive felony (w). And every receiver may be
indicted and convicted whether the principal be or be not
convicted, or be or be not amenable to justice (x).
We have noticed (y) that, as a rule, the wife is protected
from criminal liability for acts committed in the presence of
her husband. Much more, then, can she claim this immunity
when the offence with which she is charged is that of relieving
(g) R. V. Gregory, [1866] L. E. 1 C. C. E. 77; 36 L. J. M. C. 60; R. v.
Higgins, [1801] 2 East, 5.
(r) Archbold, 1383.
(s) R. V. Levy, 7 Cr. App. E. 61; [1912] 1 K. B. 158.
(t) Archbold, 1383; R. v. Chappie, [1840] 9 C. & P. .355.
(m) v. p. 218.
(w) Archbold, 701.
(a;) 6 & 7 Geo. 5, c. 50, s. 33, sub-s. 3; v. p. 218.
iy) V. p. 22.
PRINCIPALS AND ACCESSORIES . 29
and assisting her husband after he has committed a felony.
There is no exemption in respect of any other relation. Even
the husband may be convicted for assisting his wife (z).
An accessory after the fact to a felony may be tried in the
same manner as an accessory before the fact; that is, either
as an accessory with the principal, or after his conviction, or
as for a substantive felony, independently of the principal (a).
An accessory after the fact is, in general, punishable by
imprisonment for any term not exceeding two years (with or
without hard labour), and may also be required to find security
for keeping the peace, or, in default, to suffer additional
imprisonment for a period not exceeding one year (6). But
an accessory after the fact to murder may receive sentence of
penal servitude for life, or for any term not less than three
years, or imprisonment not exceeding two years (c).
As to treason. — The same acts which in a felony would make
a man an accessory before or after the fact will in treason
make the offender a principal traitor. This rule is said to
exist propter odium delicti.
As to Tnisdemeanours . — Those who aid or counsel the com-
mission of the crime are dealt with as principals {d) ; those
who merely assist after the misdemeanour has been committed
are not punishable (e), unless, indeed, the act amount to the
misdemeanour of rescue, obstructing the officer, or the like.
The same rules apply to offences punishable on summary con-
viction (/), and a person who knowingly either aids, or
counsels, or procures another to commit an offence punishable
on summary conviction may himself be convicted of that
offence whether he be actually present when it is committed
or not (g).
(z) Archbold, 1383.
(a) 24 & 25 Vict. c. 94, s. 3.
(b) 24 & 25 Vict. c. 94, s. 4.
(c) 24 & 25 Vict. c. 100, s. 67.
(d) 24 & 25 Vict. c. 94, s. 8. The same provision is also made by many later
statutes; v. Archbold, 1383.
(e) 1 Hale, 613, see R. v. Buhb, [1906] 70 J. P. 143.
(/) 11 & 12 Vict. G. 43, s. 5.
(g) Benford v. Sims, [1898] 2 Q. B. 641; 67 L. J. Q. B. 655; Da Cros v
Lambourwe. [1907] 1 K. B. 40; 76 L. J. K. B. 50.
30 PKINCIPALS AND ACCESSORIES.
Recapitulation .
The following outline of the present state of the law on the
subject of degrees of guilt may serve to place the matter in a
clearer light : —
There are no accessories in treason or misdemeanours, only
in felonies.
Principals, whether of the first or second degree, are
virtually dealt with in the same way.
Accessories, whether before or after the fact, may be treated
as such, or charged with a substantive felony; but if once
tried in either of these capacities, the other may not be
afterwards resorted to.
Accessories before the fact receive the same punishment as
principals; accessories after the fact generally imprisonment
not exceeding two years.
In the following imaginary case examples of each of the
four kinds of participation in a crime will be found, A.
incites B. and C. to murder a person. B. enters the house and
cuts the man's throat, while C. waits outside to give warning
in case any one should approach. B. and C. flee to D., who,
knowing that the murder has been committed, lends horses to
facilitate their escape. Here B. is principal in the first
degree, C. in the second degree. A. is accessory before the
fact, D. after the fact.
BOOK II.
PAET I.
OFFENCES OF A PUBLIC NATURE.
CHAPTER I.
OFFENCES AGAINST THE LAW OF NATIONS.
Certain offences are regarded as violating those unwritten
laws which are admitted by nations in general. It must not be
assumed that any State is at liberty to take upon itself the
punishment of an offence against the law of nations, if such
offence is committed by a foreign subject within the territories
of a foreign jurisdiction. The most that it can do in such
a case is to demand that justice be done by the foreign State.
But the case is otherwise if the offence is committed in parts
which are considered extra-territorial, such as the high seas.
In these all nations equally have an interest, and may
proceed against individuals who are there guilty of offences
against the law of nations.
PIRACY.
The term includes both the common law offence and also
certain offences which have been provided against by
particular statutes.
Piracy at ComTnon Law. — The offence consists in commit-
ting acts of robbery within the jurisdiction of the Court of
Admiralty (a). Formerly the proper Courts for the trial of
piracy were the Admiralty Courts (&), but later the trial was
(a) Archbold, 621. ih) Archbokl, 621.
'62 OFFENCES AGAINST THE LAW OF NATIONS.
by commissioners nominated by the Lord Chancellor, in whose
number were always found some common law Judges (c).
Now, the Judges sitting at the Central Criminal Court and
at the assizes are empowered to try cases of piracy (d).
The robbery must be proved as in ordinary cases of that
crime committed on land. The taking must be without
authority from any prince or State, for a nation cannot be
deemed guilty of piracy. If the subjects of the same State
commit robbery upon each other on the high seas it is piracy.
If the injurer and the injured be of different States the
nature of the act will depend on the relation of those States.
If in amity it is piracy; if at enmity it is not; for it is a
general rule that enemies can never commit piracy on each
other, their depredations being mere acts of hostility (e).
The gist of the offence is the place where it is committed,
viz., the high seas, and within the jurisdiction of the
Admiralty (/).
Piracy by Statute. — By particular statutes certain acts are
made piracy. Such are the following: —
For any natural-born subject to commit an act of hostility
upon the high seas against another of His Majesty's subjects
under colour of a commission from a foreign power (g), or,
in time of war, to assist an enemy on the sea (7i).
For any commander, master of a ship, or any seaman or
marine, to run away with the ship or cargo, or to yield them
up voluntarily to any pirate; or to consult or endeavour to
corrupt any such person to the commission of such acts;
or to bring any seducing message from any pirate, enemy,
or rebel; or to confine the commander or to put force upon
(c) 28 Henry VIII. c. 15. v. p. 326.
(d) 4 & 5 Wm. IV. c. 36, s. 22 ; 7 & 8 Vict. c. 2, s. 1.
(e) Tivnan, In re, [1864] 5 B. & S. 645; Archbold, 626.
It should be remembered that the Declaration of Paris (1856) contained a
provision that privateering should be abolished, binding on the countries parties
to that declaration — Eussia, Turkey, England, France, Italy, Austria, and
Prussia.
(/) As to the jurisdiction of the Admiralty, v. Arch. 30 — 35, and post, p. 326.
(g) 11 Wm. III., c. 7. s. 7, made perpetual by 6 Geo. I. c. 19.
(h) 18 Geo. n. c. 30, s. 1.
OFFENCES AGAINST THE LAW OF NATIONS. 33
him so that he cannot fight in defence of his ship; or to
make, or endeavour to make, a revolt in the ship (i).
For any person to have dealings with, or render any
assistance to, a pirate (k).
For any person to board a merchant ship and throw over-
board or destroy any of the ship's goods (l).
The punishment for piracy was formerly death. Now the
offender is liable to penal servitude to the extent of life,
or to imprisonment not exceeding two" years. But piracy
accompanied with an assault with intent to murder, or with
wounding or endangering the life of any person on board of,
or belonging to, the vessel, is still punishable with death (m).
OFFENCES AS TO SLAVES.
This class of offences is connected with the last, inasmuch
as the first and chief crime which we shall notice is declared
to be piracy, felony, and robbery — viz., for any British
subject, or person within British territory, to convey away,
or assist in conveying away, any persons on the high seas
as slaves, or to ship them for such purpose (n). The punish-
ment formerly was death, but now may be penal servitude
to the extent of life (o).
Dealing in slaves and certain other offences are made
felonies. And it is a misdemeanour for a seaman to serve
on board a ship engaged in the slave trade (p).
A more recent statute consolidates the law on the subject
of trading in slaves; but it preserves the provisions noticed
above (q).
(t) 11 Wm. III. c. 7, s. 8.
(fe) 8 Geo. I. c. 24, s. 1, perpetual by 2 Geo. II. c. 28.
il) Ibid.
(m) 7 Wm. IV. and 1 Vict. e. 88, ss. 2, 3. The rules governing punishment
will be found on pp. 422-455. In future only the maximum punishment for each
offence will be noted in the text. Usually imprisonment, with or without hard
labour, for (as a rule) not more than two years, may be awarded as an alterna-
tive to penal servitude. In case of misdemeanour a fine may be imposed as part
or all of the sentence. Whipping of males can be ordered only when specially
allowed by statute, and only once for the same offence.
(n) 5 (*eo. IV. c. 113, s. 9.
(o) 7 Wm. IV. & 1 Vict. c. 91, s. 1.
. (p) S (ieo. TV. c. 113, ss. 10, 11.
(q) 3fi & 37 Vict. c. 88; v. R. v. Zulueta, [1843J 1 C. & K. 216, *
c.ii. 3
CHAPTEE II.
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
We now have to deal with offences committed by members
of the community in violation of their duties as subjects,
these offences for the most part also incidentally causing
injury to individuals.
TREASON (r).
The crime comprises the three following main classes of
acts : —
(1) Compassing and imagining the King's death, including
every conspiracy, the natural effect of which may probably
be to cause personal danger to the King.
(2) Actual levying of war against the King for the attain-
ment by force of public objects.
(3) Political plots and conspiracies intending to bring
about the deposition of the King, or levying war against him,
or the invasion of his territories.
To these should be added adhering to the King's enemies,
i.e., foreign powers with whom we are at open war, and a
few acts which are of the rarest occurrence, and at the present
day hardly demand any notice.
(r) Treason against the Government was termed " high " treason to distin-
guish it from " petit " treason, which consisted in the murder of a superior by
an inferior in natiu'al, civil, or spiritual relation; " and therefore for a wife to
kill her lord or husband, a servant his lord or master, and an ecclesiastic his
lord or ordinary, these being breaches of the lower allegiance of private and
domestic faith, are denominated petit treason " (4 Bl. 75). But as every cfifence
which would previously have amounted to petit treason is now regarded simply
as murder (9 Geo. IV. c. 31, s. 2, and 24 & 25 Vict. c. 100, s. 8), there is no,
.longer any reason for distinguishing the graver offence by the epithet " high."
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 35
The present law on the subject dates back to an Act passed
in the reign of Edward III., known as the Statute of
Treasons (s).
By the terms of this statute, treason is committed " when
a man doth compass or imagine the death of our lord the
King, or of our lady his Queen, or of their eldest son and
heir; or if a man do violate the King's companion, or the
King's eldest daughter unmarried, or the wife of the King's
eldest son and heir; or if a man do levy war against our lord
the King in his realm, or be adherent to the King's enemies
in his realm, giving them aid or comfort in the realm or
elsewhere, and thereof be probably (or provably ' probable-
ment ') attainted of open deed by people of their condition."
The statute proceeds to define as other acts of treason the
counterfeiting of the King's great or privy seal or his money,
and bringing false money into this realm (which offences are
no longer treason) ; and slaying the chancellor, treasurer, or
the King's judges while doing their offices.
By the " King " is to be understood the Sovereign de facto,
though he be not the King de jure (t). On the other hand,
the person rightfully entitled to the crown, if not in posses-
sion, is not within the statute. The " Queen " referred to
is the Queen consort, a Queen regnant being included in the
term "King."
It is the designing that constitutes the offence of com-
passing the death of the King, &c. But this design must
be evidenced by some overt act, so that if there be wanting
either the design, as in the case of killing the King by
accident, or the overt act, as when the design has been
formed, but laid aside before being put into execution, there
can be no conviction for treason.
What will constitute an overt act? Anything wilfully
done or attempted by which the Sovereign's life may be
endangered ; for example, conspirators meeting to consult on
the means of killing the Sovereign (w) ; or of usurping the
(s) 25 Edw. III., St. 5, c. 2.
(t) 11 Hen. VII. c. 1, s. 1.
(«) R. V. Vane, [1553] Kel. 15.
36 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
powers of government (w) ; writings, if published, importing
a compassing of the Sovereign's death, and even -words
advising, or persuading to what would be an overt act, will
suffice as evidence of the design ; but not so loose words which
have no reference to any designed act (a).
To constitute a levying of war against the Sovereign there
must be an insurrection, there must be force accompanying
that insurrection, and it must be for an object of a general
nature (y). But there need not be actual fighting; nor is
the number of persons taking part in the movement material.
The levying is either direct or constructive. It is direct
when the war is levied directly against the King or his forces,
with intent to do some injury to his person, to imprison him,
or the like (z) ; for example, a rebellion to depose him, or
delivering up the Sovereign's castle to the enemy. It is
constructive when committed for the purpose of effecting
innovations of a public and general nature by an armed force,
the pretended end of the movement being rather the purifica-
tion of the Government than its overthrow. Thus it is
treason to attempt by force to alter the religion of the State,
or to obtain the repeal of its laws. So it is treason to throw
down all enclosures, open all prisons; but not if the attempt
be to break down a particular enclosure, or to deliver a
particular person from prison, because in these latter cases
the design is particular and not general (a).
The offence of adhering to the Sovereign's enemies must
dlso be evidenced by some overt act, as, for example, by
raising troops for the enemy, or sending them money, arms,
or intelligence. By the " Sovereign's enemies " are meant
the subjects of foreign powers with which he is at war.
It appears, therefore, that a British subject, though in open
rebellion, can never be deemed an enemy of the Sovereign,
so as to make assistance rendered to him treason within this
branch of the statute (b).
(w) R. V. Hardy, 1 East, P. C. 60.
(x) V. R. V. Gordon, [1781], Doug. 593.
(y) R. V. Frost, [1839] 9 C. & P. 129.
(z) Archbold, 1025.
(a) R. V. Dammaree, [1710] 15 How St. Tr. 522,
(h) Archbold, 1032.
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 37
The meaning of the words in the statute relative to this
offence is this : " Giving aid and comfort to the King's
enemies " are words in opposition; they are words to explain
what is meant by being " adherent to." Therefore, whether a
man be adherent to the King's enemies in his realm by giving
to them aid and comfort in his realm, or if he be adherent
to the King's enemies elsewhere, that is by giving them aid
and comfort elsewhere, he is equally adherent to the King's
enemies, and if he is adherent to the King's enemies, then
he commits the treason which the statute defines (c). Where
the accused, a British subject, acting as German Consol,
assisted German subjects of military age to return to
Germany after a state of war existed, and was in consequence
convicted of adhering to the King's enemies, it was held, on
appeal, that the conviction must be quashed, because the jury
had not been told that they must consider whether the acts
of the accused were done by him with the intention of
assisting the King's enemies or whether (as he asserted), he
acted without any evil intention and in the belief that it
was his duty to assist German subjects to return to
Germany, in which case he would not be guilty (d).
Subsequent to the Statute of Treasons Parliament from
time to time made other offences treason — notably several
in the reign of Henry YIII., in the matter of religion. All
these new treasons, however, were abrogated in the reigns
of Edward VI. and Mary, and the statute of Edward III.
was restored to its place as the standard of treason ; but
subsequent additions to the number of treasonable offences
were afterwards made by the Legislature. The following still
remain : —
(i) Endeavouring (to be evidenced by some overt act) to
prevent the person entitled under the Act of Settlement from
succeeding to the Crown (e), or maliciously, and advisedly,
by writing or printing, maintaining that any other person
has any right to the Crown (/).
(c) R. V. Casement. [1917] 1 K. B. 98.
(d) R. V. Ahlers, [1915] 1 K. B. 616; 11 Cr. App. K. 63.
(e) 1 Anne, st. 2, c. 17, s. 3.
if) 6 Anne, c. 41.
•38 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN,
(ii) Compassijig, imagining, or intending death, er any
harm tending to death, maim or wounding, imprisonment, or
restraint of the person of the Sovereign (g).
This offence can be committed not only by British subjects
but also by aliens who are subjects of Sovereigns at peace
with the King; but alien enemies cannot be tried for treason
unless they have, during the war, been living in this country
under the King's protection (h). A British subject may
change his nationality (i), but this must not be done in time
of war, as the taking of an oath of allegiance to a foreign
power which is at war with the King is in itself an act of
treason (k).
There are some points in connection with the procedure in
prosecutions for treason which may be noticed here.
In the first place, no prosecution for treason can take placp
after three years from the commission of the offence, if it
be committed within the realm, unless the treason consist of
a designed assassination of the Sovereign (Z).
The prisoner indicted for treason (or misprision of treason)
is entitled to have delivered to him, ten days before the trial,
a copy of the indictment, and a list of the witnesses to be
called, and of the petty jurors, to enable him the better to
make his defence (m). But these provisions do not apply to
cases of treason in compassing and imagining the death of
the Sovereign (or misprision of such treason) where the overt
act is an act against the life or person of the Sovereign. In
such cases the prisoner is indicted, arraigned, and tried in
the same manner and upon like evidence as if he stood
charged with murder, though, if he be found guilty, the
consequences are those of treason (n).
(g) 36 Geo. III. c. 7, s. 1, confirmed by 57 Geo. III. c. 6, s. 1. The former
statute also denominated certain other acts of treason ; but all these offences,
with the exception of those against the person of the Sovereign noticed above,
were converted into felonies by 11 & 12 Vict. c. 12, s. 1 ; v. Treason-Felony,
p. 40.
(h) See De Jager v. Attorney -General of Natal, [1907] A. C. 326.
(i) 33 & 34 Vict. c. 14, ss. 4, 6.
(fe) R. V. Lynch, [1903] 1 K. B. 444; 72 L. J. K. B. 167.
(I) 7 & 8 Wm. III. c. 3, 88. 5. 6.
(m) 7 Anne, c. 21, s. 14; 6 Geo. IV. c. 50, e. 21.
(n) 39 & 40 Geo. III. c. 93; 5 & 6 Vict. c. 51, 8. 1.
OFFENCES AGAINST THE GOVEHNMENT AND SOVEREIGN. 39
One overt act is sufficient to prove the treason, but any
number may be mentioned in the indictment. To this overt
act, or else to it and another overt act of the same treason,
there must be two witnesses, unless the accused confesses
willingly (o).
Formerly the punishment for treason was of a most
barbarous character. Males were drawn on a hurdle to the
place of execution, and hanged, but cut down while alive;
afterwards they were disembowelled, the head was severed
from the body, the body quartered, and the quarters placed
at the disposal of the Sovereign. By a wholesome statute,
this proceeding was deprived of its more outrageous features,
and it was provided that beheading might be substituted by
the Sovereign, or the capital sentence might be altogether
remitted (p). By a previous Act (q), the punishment of
females, formerly burning alive, had been changed to
hanging. Now, by the Abolition of Forfeiture fer Felony
Act, 1870 (r), the only part of the sentence which is retained
in any case is the hanging, for which, however, beheading
may be substituted by the Sovereign.
Certain additional consequences of conviction and attain-
der (.S-), viz., forfeiture of lands and goods, and corruption of
blood, were abolished by the statute just mentioned (t), but
certain incapacities were at the same time attached to con-
victions for treason or felony (m).
MISPRISION OF TREASON.
Misprision of treason consists in the bare knowledge and
concealment of treason without any assent, any degree of
assent making the party a principal traitor. At common
law this mere concealment, being construed as aiding and
(o) 7 & 8 Wm. III. c. 3, ss. 2, 4; except in cases tried, as above, as for murder.
(p) 54 Geo. III. c. 146.
iq) 30 Geo. III. c. 48.
(r) 33 & 34 Vict. c. 23, s. 31.
(s) A man is convicted when found guilty; he was said to be attainted when
judgment had been given.
(t) 33 i^ 34 Vict. c. 23, s. 1.
(u) V. p. 441.
40 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
abetting, was regarded as treason, inasmuch as, it will be
remembered, there is no distinction between principals and
accessories in treason (ic). It was specially enacted that a
bare concealment of treason should be held a misprision
only (a;). Misprision of treason is a high misdemeanour. The
punishment was imprisonment and forfeiture of goods, and it
would appear that forfeiture is still a part of the punishment,
as the Act to abolish Forfeiture for Felony {y) only applies
to convictions for treason, felony, or felo de se. The party
knowing of any treason must, as soon as possible, reveal it
to some Judge of Assize or Justice of the Peace.
ATTEMPTS TO ALARM OR INJURE THE KING.
It may be remembered that at the beginning of the reign
of Queen Victoria a morbid desire for notoriety induced
certain youths to annoy her by discharging firearms at her
person, or in her presence. To put an end to this the
Legislature provided that deeds of this kind should be
regarded as high misdemeanours (z). The acts enumerated
are : To discharge, point, aim, or present at the person of
the Sovereign any gun or other arms, whether containing any
explosive or destructive material or not; to discharge any
explosive substance near him; to strike or throw anything
at him with intent to injure or alarm him, or break the
public peace ; or in his presence to produce any arms or
destructive matter with like intent. The punishment may
be penal servitude to the extent of seven years, with a
whipping.
TREASON-FELONY, Or FELONIOUS COMPASSING TO LEVY WAR, ETC.
Certain offences which had been declared treason by
statute (a) were, by a later statute (6), made felonies. To
these, on account of their treasonable character, the name
"treason-felony" is sometimes given. The acts enumerated
(w) V. p. 29. (x) 1 & 2 Phil. & Mary, c. 10.
iy) 33 & 34 Vict. c. 23, s. 1. (z) 5 & 6 Vict. c. 51, s. 2.
(o) 36 Geo. III. c. 7, s. 1. (b) 11 & 12 Vict. c. 12, s. 3.
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 41
are — compassing, &c. (i) to deprive or depose the Sovereign
from the style, honour, or name of the Crown of the United
Kingdom, or other of his dominions; (ii) to levy war against
the Sovereign within the United Kingdom, in order by force
or constraint to compel him to change his measures or
counsels, or to put force or constraint upon, or intimidate or
overawe both Houses, or either House of Parliament; (iii) to
move or stir any foreigner or stranger with force to invade
the United Kingdom, or any other of the Sovereign's
iominions.
This compassing, &c., must be evidenced by some overt act,
or by something published in printing or writing. Though
the facts alleged in the indictment, or proved on the trial of
any person indicted under this Act for felony, amount to
treason, the person is not by reason thereof entitled to be
acquitted of such felony; but if tried for the felony he cannot
afterwards be prosecuted for treason upon the same facts (c).
The punishment may extend to penal servitude for life.
Nothing contained in this Act lessens the force of the Statute
of Treasons.
SEDITION.
Sedition is a comprehensive term, embracing all those
practices, whether by word, deed, or writing, which are
calculated to disturb the tranquillity of the State, and lead
ignorant persons to endeavour to subvert the Government and
the laws of the Empire. The objects generally are to excite
discontent and insurrection, to stir up opposition to the
Government, and to bring the administration of justice into
contempt (d).
This description is somewhat vague ; but in that respect
it only resembles the offence itself. It is hard to lay down
any decisive line, on one side of which acts are seditious and
on the other innocent. The term " sedition " is commonly
used in connection with words written or spoken. It is.
(c) 11 & 12 Vict. c. 12, s. 7.
id) R. V. Sullivan; R. v. Pigott, [1868] 11 Cox, 44, 45.
42 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
however, used of many other matters, some of whicli are
treated of separately; for example, unlawful training to arms,
and unlawful secret societies or meetings.
What is sufficient to constitute seditious libels or words?
It may be answered generally — such political writings or
words as do not amount to treason (e), but which are not
innocent. We have already seen what constitutes treason.
As to what are innocent : it is the right of a subject to
criticise and censure freely the conduct of the servants of the
Crown, whether ministerial or judicial, and the acts of the
Government and proceedings in Courts of Justice, so long as
he does it without malignity, and does not impute corrupt or
malicious motives (/). Any words or'writinq-3 betweeif these
extremes may be seditious if they have a plain tendency to
produce public mischief by perverting the mind of the subject
and creating a general dissatisfaction towards Government [g),
or causing general disaffection or disorder [h). ^
Proving the truth of a seditious libel is no excuse for the
publishing it; nor should it extenuate the punishment,
inasmuch as the statute (i), which allows the defendant
charged with libel to plead the truth under certain conditions,
does not apply to seditious libels (k).
The punishment for seditious libels or words is fine and
imprisonment as for a misdemeanour. Punishable in the same
way are slanderous words uttered to a Judge or magistrate
while acting in the duties of his office {I).
UNLAWFUL OATHS AND SOCIETIES.
Oaths. — At the end of the eighteenth century, in con-
sequence of sedition and mutiny having been promoted by
persons banding themselves together under the obligation of
(e) Though treason itself may be said to be a kind of sedition.
(/) R. V. Sullivan, &c., supra.
ig) i.e., the Gfovernment of this country, not of foreign countries, R. v.
Antonelli, [1906] 70 J. P. 4.
(h) R. V. Burns, 16 Cox, 355.
(t) 6 & 7 Vict. c. 96, s. 6.
(k) R. V. Duffy, [1846] 2 Cox, 45; R. v. Burdett, [1820] 4 B. & Aid. 95. As
to seditious libels in newspapers, v. 51 & 62 Vict. c. 54, s. 8, post, p. 93.
{I) V. p. 81.
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 43
an oath, an Act was passed to make criminally punishable
those who took oaths of a certain character : Any person
administering or causing to be administered, or aiding in or
being present at and consenting to such administering, any
oath or engagement intended to bind any person to engage
in any mutinous or seditious purpose ; or to disturb the peace ;
or to be of any society formed for such purpose ; or to obey
the orders of a committee or body of men not lawfully
constituted, or of any leader or commander or other person
not having authority by law for that purpose ; or not to inform
or give evidence against any associate or other person; or not
to discover an unlawful combination or illegal act, or illegal
oath or engagement — is guilty of felony. The punishment is
penal servitude for a term not exceeding seven years, or
imprisonment not exceeding two years. The same con-
sequences also attend taking such an oath when not compelled
to (m). It will be observed that this statute is not confined to
oaths administered for seditious and mutinous purposes, but
applies to other unlawful combinations (n).
A later statute declares (o) to be felony the taking or the
taking part in administering any oath intended to bind a
person to commit any treason, or murder, or any felony
punishable with death. The punishment for such offence may
be penal servitude to the extent of life.
Persons taking these oaths by compulsion are not excused
on that account unless they disclose the circumstances to a
Justice of the Peace, one of the Secretaries of State, or the
Privy Council, within, under the first statute, four days;
under the second statute, fourteen days (p). The oath need
not be in any precise form so long as the parties understand
it to have the force and obligation of an oath; therefore, of
course, it is not necessary that it should be taken on the
Bible (q).
(m) 37 Geo. III. c. 123, s. 1 ; 54 & 55 Vict. c. 69, s. 1 (2).
(n) R. V. Marks, [1802] 3 East, 157.
(o) 52 Geo. III. c. 104, s. 1; 7 Wm. IV. & 1 Vict. c. 91, s. 1.
(p) 52 Geo. III. c. 104, s. 2,
(q) R. V. Loveless, [1834] 6 C. & P. 596.
44 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
Societies. — Societies whose members are required to take
any oath or engagement unlawful under the two above-
mentioned statutes of George III., or not required or
authorised by law, or of which the members subscribe any
unauthorised test or declaration, or the names of whose
members or officers are kept secret from the society at large,
or which commit certain other specific offences, are, by
statute (r), made unlawful combinations. Exceptions are,
however, made in favour of societies for religious and
charitable purposes and freemasons' lodges; also as to
declarations approved of by two Justices, and registered
according to the provisions of the Act.
All persons who are members of, or aid or support, such
societies are guilty of a misdemeanour, punishable by penal
servitude for not more than seven years. Proceedings can
only be taken in the name of a law officer of the Crown (s).
OFFENCES AGAINST THE FOREIGN ENLISTMENT ACT.
The main object of this statute (t) is to regulate the conduct
of His Majesty's subjects during the existence of hostilities
between foreign States with which His Majesty is at peace,
and to prevent injury to the public by involving the State
in misunderstandings with foreign powers.
Two classes of criminal acts are made misdemeanours: —
Illegal enlistment. Illegal shipbuilding and expeditions.
. Illegal Enlistment.- — To do any of the following acts
without the Sovereign's licence is prohibited : (i) For any
British subject, within or without His Majesty's Dominions,
to enlist and for anyone, within His Majesty's Dominions, to
induce any other person to enlist in the service of a foreign
State at war with a friendly State, (ii) For any British
subject to leave His Majesty's Dominions for, or for any one
to induce any other person to do so, with intent so to enlist,
(iii) For any one by misrepresentation to induce any other
(r) 39 Geo. III. c. 79 ; 57 Geo. III. c. 19.
(s) 9 & 10 Vict. c. 33, s. 1.
(t) 33 & 34 Vict. c. 90.
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 45
person to leave His Majesty's Dominions, or embark on a ship
within His Majesty's Dominions, with intent that such person
should so enlist, (iv) For the master or owner of any ship
knowingly to take on board illegally enlisted persons. In
each case the offender may be punished by fine, or imprison-
ment not exceeding two years, or both. And in the case oi
illegally taking on board, the ship is detained until satis-
faction is given; and illegally enlisted- persons are put on
shore and not allowed to return to the ship (u).
Illegal Shipbuilding, 8fc. — For any person to build,
commission, equip, or despatch a ship, knowing or having
reasonable cause to believe (the burden of proof lying on
the builder that it is not illegal) that the ship is to be
employed in the service of such a State, if done with-
out licence, is punishable in the same way, and the ship
and her equipment are forfeited to the King. If the
contract for building the ship has been made before the
beginning of the war, the builder or equipper is not punish-
able if immediately after the issue of the King's proclamation
of neutrality he gives notice to the Secretary of State, and
ensures that the ship will not be despatched until the
termination of the war without the licence of the King {w).
Augmenting, without licence, the warlike force of a ship
in such service, by adding to the number of guns or to the
equipment, is punishable in the same way {x).
It is also made a similar offence for any person within His
Majesty's dominions to prepare or fit out, or assist in fitting
out, without licence, any military or naval expedition against
a friendly State. All arms and ships used for such a purpose
are forfeited {y). When an expedition is unlawfully prepared
within the King's dominions, a British subject who assists
is guilty of an offence, though his assistance is rendered from
a place outside the King's dominions [z).
(a) 33 & 34 Vict. c. 90, ss. 4—7.
{w) Ibid. ss. 8, 9.
(x) Ibid. 8. 10.
(y) Ibid. 8. 11. V. R. v. Sandoval, [1887] 16 Cox, 206.
(z) R. V. Jameson, [1896] 2 Q. B. 425; 65 L. J. M. C. 218.
46 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
The offender may be tried within the jurisdiction where
the offence was committed, or where the offender may be (a).
A Judge of a superior Court in the United Kingdom, or
elsewhere of the highest British Court of Criminal Jurisdic-
tion, may order the trial to be had at any place within His
Majesty's dominions (6).
DESERTION, JHUTINY, AND INCITING THERETO.
Any person who maliciously endeavours to seduce a person
serving in His Majesty's sea or land forces from his duty or
allegiance, or incites him to any mutiny or mutinous practice,
is guilty of felony. It is punishable with penal servitude to
the extent of life. The trial may be had at the assizes for
any county in England (c).
Other provisions of the same kind are contained in the
Army Act, 1881 [d], which comes into force and remains
in force for the period named in an annual Act passed for
the purpose. That Act makes any person who procures or
persuades a soldier to desert, or knowingly aids or assists,
or conceals a soldier in deserting, liable on summary con-
viction to six months' imprisonment with or without hard
labour (e). The deserter himself is punishable upon trial by
court-martial with death if on, or under orders for, active ser-
vice; or if otherwise, with imprisonment or penal servitude (/).
The Naval Discipline Act, 1866 [g), and the amending
Act of 1884 (h), provide for the punishment by court-martial
and otherwise of mutiny and other offences committed by
persons subject to that Act, mutiny with violence being made
punishable with death. Punishments are also provided for
(a) Ibid. s. 16.
(b) Ihid. s. 18.
(c) 37 Geo. ni. c. 70, perpetual by 57 Geo. II. c. 7 ; 7 Wra. IV. & 1 Vict,
c. 91 s. 1.
' (d)'44 &'45 Vict. c. 58.
(e) Ihid. s. 153.
(/) Ibid. s. 12.
(q) 29 & 30 Vict. c. 109.
(h) 47 & 48 Vict. c. 39.
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 47
those who endeavour to seduce those subject to the Act from
their allegiance (i).
ILLEGAL TRAINING AND DRILLING.
Meetings for the purpose of training or drilling to the use
of arms without authority from the Sovereign, or the
lieutenant or two Justices of the Peace of the county, are
illegal. Any person who is present for the purpose of
training or assisting in training is guilty of a misdemeanour
and is liable to penal servitude to the extent of seven years.
If he is present for the purpose of being himself trained, he
is punishable with fine and imprisonment not exceeding two
years. The prosecution must be commenced within six
months after the offence is committed. Any magistrate,
constable, or peace officer may disperse such meetings, and
arrest and detain any person present (/<•).
UNLAWFUL DEALINGS WITH PUBLIC STORES.
The law on this point is consolidated by the Public Store
Act, 1875 (I). Certain marks are appropriated by the
Government for the distinguishing of public stores. If any
one, without lawful authority, which he must prove, applies
any of these marks in or on any such stores, he is guilty of
a misdemeanour, and may be imprisoned for a term not
exceeding two years {?n). If any one, with intent to conceal
His Majesty's property in such stores, obliterates these marks,
wholly or in part, he is guilty of felony, and is punishable
with penal servitude to the extent of seven years (n). The
unlawful possession of public stores is punishable on summary
conviction (o).
(t) See page 48 for general remarks as to the punishment of offences by
those in the Army or Navy.
(fc) 60 Geo. III. and 1 Geo. IV. c. 1, ss. 1, 2.
H) 38 & 39 Vict. c. 25
(m) Ihid. a 4.
(n) Ibid. s. 5.
(o) Ibid. ss. 7—11,
48 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
It is also an offence punishable on summary conviction
knowingly to buy or receive from a soldier arms, ammunition,
regimental clotting, military decorations, &c., or to be found
in possession of such articles without being able to account
satisfactorily for such possession (p).
OFFENCES BY MEMBERS OF THE ARMY AND NAVY.
It may be convenient to notice shortly offences of a strictly
military nature which are punishable by a court-martial.
As to the Army. — It is provided by the Army Act, 1881,
that every officer or private who shall incite or join any
mutiny, or knowing of it shall not give notice to the com-
manding officer, or shall desert, or enlist in any other
regiment, or sleep upon his post, or leave it before he is
relieved, or hold correspondence with a rebel or enemy, or
strike or use insolence to his superior officer, or disobey his
lawful commands, shall suffer death or such other punishment
as the Act prescribes for these offences. Other offences are set
forth and their punishments prescribed.
The Act does not, however, exempt soldiers from being
punishable by the ordinary criminal Courts. It expressly
provides that nothing therein is to exempt any officer or
soldier from being proceeded against by the ordinary course
of law, when accused of felony or misdemeanour, or of any
offence other than absenting himself from service or mis-
conduct respecting his contract (q). And if a person who
lias been sentenced for an offence by a court-martial is
afterwards tried by a civil Court for the same offence, that
Court in awarding punishment shall have regard to the
military punishment he may have already undergone. No
person acquitted or convicted by a competent civil Court is
to be tried by court-martial for the same offence.
As to the Mavy.— The Naval Discipline Act, 1866 (r), and
the amending Act of 1884 (5) make similar provisions for the
(p) 44 & 45 Vict. c. 58, s. 156; 5 & 6 Geo. V. c. 58, s. 6.
{q) Ibid. ss. 144, 162.
(r) 29 & 30 Vict. c. 109.
(s) 47 & 48 Vict. c. 39.
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 49
navy as to courts-martial, the trial of offences, no exemption
from ordinary criminal jurisdiction, &c.
COINAGE OFFENCES.
The law on this subject has been consolidated by the
Coinage Offences Act, 1861 (t). It will be our task to present
its matter under several heads.
A. CoitJiterfeit Coin. — A distinction is made as to the kind
of coin. Whosoever falsely makes or counterfeits any coin
resembling, or apparently intended to resemble or pass for — -
(i) The King's current gold or silver coin of this realm (w)j
(ii) Foreign gold or silver coin (w),
(iii) The King's current copper coin (x),
is guilty of felony, and is punishable, in the case of gold!
and silver coin of the realm, with penal servitude to the
extent of life, in the other cases to the extent of seven years;
(iv) Foreign coin other than gold or silver coin (y)
is guilty of a misdemeanour, punishable for the first offence
with imprisonment not exceeding one year; for the second
offence with penal servitude to the extent of seven years.
This offence, as also the offences, to be noticed later, of
buying, selling, and uttering counterfeit coin is complete
although the false coin has not been finished, or is not in a
fit state to be uttered (z) ; nor is any attempt to utter
necessary. Any one, not necessarily an officer from the Mint,
may at the trial prove the falseness (a). In this offence is
included that committed by persons lawfully engaged in
coining, but who make the coin lighter, or of baser alloy.
The counterfeiting can generally only be proved by circum-
stantial evidence; for example, by proof of finding coining
(t) 24 & 25 Vict. c. 99. In the present division the quoting of a section must
be understood to refer to this Act.
(«) s. 2.
(w) s. 18.
(x) 8. 14.
(y) s. 22.
(2) s. 30.
(a) 8. 29, '
I
C,L. 4
50 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
tools in working order, and pieces of the money, some in a
finished, some in an unfinished state.
B. Colouring Coin. — To gild, silver, or colour counterfeit
coin, or any piece of metal with intent to make it pass for
gold or silver coin; or to colour, file, or otherwise alter
genuine coin with intent to make it pass for coin of a higher
degree, is a felony punishable with penal servitude to the
extent of life (6).
C. iTnyairing Gold and Silver Coin. — Impairing, diminish-
ing, or lightening any of the King's gold or silver coin, with
the intent that it shall pass for gold or silver coin, is felony,
punishable with penal servitude to the extent of fourteen
years (c).
Having in possession any filings, clippings, dust, «S;c.,
obtained by the above-mentioned process, is a felony, the
limit of penal servitude for which is seven years {d).
D. Defacing Coin. — Defacing the King's gold, silver, or
oopper coin, by stamping thereon any names or words,
although the coin be not thereby lightened, is a misde-
meanour, punishable with imprisonment not exceeding one
year (e). It should be added that coin so defaced is not
legal tender; and by the permission of the Attorney-General
or Lord Advocate, any person who tenders or puts off coin
so debased may be brought before two magistrates, and on
conviction be fined not exceeding forty shillings (/).
E. Buying or Selling, Si'c., Counterfeit Coin at Lower Value.
— Any i^erson, without lawful authority or excuse (the proof
whereof lies on the accused), buying, selling, receiving, or
putting off any counterfeit coin for a lower rate or value than
it imports, is guilty of felony. If the counterfeit be of gold
or silver the extent of penal servitude is life (g) ; if copper,
the limit is seven years (h).
(b) s. 3. (c) s. 4.
(d) s. 5. (e) 8. 16.
(f) a. 17. (j) s. 6.
ih) a. 14.
OFFENCES AGAINST THE GOVEENMENT AND SOVEREIGN. 51
F. Importing and Exporting Counterfeit Coin. — Importing
or receiving into the United Kingdom from beyond tlie seas,
without lawful authority, &c., counterfeit coin resembling
the King's gold or silver coin, knowing the same to be false
and counterfeit, is a felony, punishable with penal servitude
to the extent of life [i). Importing foreign counterfeit coin
is a felony, the limit of penal servitude for which is seven
years (A-).
Exporting, or putting on board any vessel for the purpose
of being exported from the United Kingdom any coin counter-
feit of the King's current coin, without lawful authority,
&c., is a misdemeanour punishable with imprisonment not
exceeding two years {I).
G. Uttering Counterfeit Coin. — Tendering, uttering, or
putting oif counterfeit gold or silver (m) coin, knowing the
same to be false and counterfeit, is a misdemeanour punish-
able with imprisonment not exceeding one year. If at the
time of uttering the offender has any other counterfeit gold
or silver coin in his possession, or if he within ten days utters
another coin, knowing it to be counterfeit gold or silver, the
punishment may extend to two years (n). If the uttering is
after a previous conviction for either of these offences, or for
having in possession three or more pieces of counterfeit gold
or silver coin, or for any felony relating to the coin, the
utterer is guilty of felony, and may be sentenced to penal
servitude for life (o).
Knowingly uttering counterfeit copper coin, or having in
possession three or more pieces of counterfeit copper coin with
intent to utter them, is a misdemeanour punishable by im-
prisonment for one year (p).
Knowingly uttering counterfeit coin meant to resemble a
foreign gold or silver coin is punishable for the first offence
with imprisonment not exceeding six months; for the second
(i) 8. 7. (fc) s. 19.
(I) 8. 8. Im) a. 9.
(n) s. 10. (o) 8. 12.
(p) 8. 15.
52 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
not exceeding two years. The third offence is a felony punish-
able with penal servitude to the extent of life (q).
Uttering spurious coin, e.fj., foreign coin, medals, pieces
of metal, &c., as current gold or silver coin, with intent to
defraud, is a misdemeanour punishable with imprisonment to
the extent of one year (r).
H. Having Counterfeit Coin in Possession. — Having three
or more counterfeit gold or silver coins in possession, knowing
them to be counterfeit, and intending to utter or put them
off, is a misdemeanour punishable with penal servitude for
five years (.v). If after previous conviction for either of the
misdemeanours mentioned in sees. 9 and 10, or any felony
relating to the coin, the crime is a felony, and may be punished
with penal servitude to the extent of life (t). If the coin
is the King's copper coin the limit of the punishment is im-
prisonment for one year (u). Having in possession without
lawful excuse more than five pieces of foreign counterfeit coin
renders the possessor liable to a fine not exceeding forty
shillings for each piece, on conviction before a justice (w).
I. Making, 8fc., Coining Tools. — Knowingly and without
lawful authority, &c., making or mending, buying or selling,
or having in custody or possession any coining instrument or
apparatus adapted and intended to make any gold or silver
coin or foreign coin, is a felony punishable with penal
servitude for life {x). If the instruments, &c., are designed
for coining the King's copper coin, the limit of the penal
servitude is seven years {y).
Conveying out of the Mint, without lawful authority, &c.,
any coining instrument, or any coin, bullion, metal, or
mixture of metals, is a felony punishable with penal servitude
for life [z).
If in any case coin is suspected to be diminished or
counterfeited, it may be cut, bent, &c., by any person to whom
(g) ss. 20, 21. ir) a. 13.
is) s. 11. it) s. 12.
{«) s. 15. (ic) s. 23.
(x) 8. 24. (y) s. 14.
(z) s. 25.
OFFENCES AGAINST THE GOVEliNMENT AND SOVEREIGN. 53
it is tendered ; tlie loss to fall on the deliverer if the coin
is found to be counterfeit or unreasonably diminished; on
the person to whom tendered, if found correct (a). Provision
is also made for the seizure by any one finding them of
counterfeit coin or tools; for search for the same; and for
their ultimate delivery to the officers of the Mint or other
persons duly authorised to receive them (b).
By a more recent statute (c) it was declared to be a mis-
demeanour to make or have in one's possession for sale, any
medal, cast, or coin, made of metal or of any metallic
combination, and resembling in size, figure, and colour any
current gold or silver coin. The punishment is imprisonment
for a term not exceeding one year with or without hard labour.
concealmp:nt of treasure trove.
"' Treasure trove is where any gold or silver in coin, plate,
or bullion is found concealed in a house, or in the earth,
or other private place, the owner thereof being unknown, in
which case -the treasure belongs to the King or his grantee
having the franchise of treasure trove " (d). The offence of
concealing the discovery of it is a common law misdemeanour,
punishable by fine and imprisonment (e).
DISCLOSURE OF OFFICIAL SECRETS.
By the Official Secrets Act, 1911 (/), if any person for any
purpose prejudicial to the safety or interests of the State (g)
approaches or enters any prohibited place (h) or makes any
(a) s. 26.
(b) 8. 27.
(c) 46 & 47 Vict. c. 45. •
(d) Att.-Gen. v. Moore, [1893] 1 Ch., at p. 683.
(e) R. v. Thomas and Willett, [1863] 33 L. J. M. C. 22.
(/) 1 & 2 Geo. V. c. 28.
(g) This purpose will be presumed unless the contrary is proved, section 1,
sub-section 2.
(h) This includes by section 3 any work of defence, arsenal, factory, dockyard,
camp, ship, telegraph or signal station or office belonging to His Majesty, and
any place used for building, making, or storing any ship, arms, or materials for
use in war, or plans or documents relating thereto, any place belonging to His
Majesty which is for the time being declared by a Secretary of State to be a
prohibited place, and any railway, road or means of comnninication, or used for
gas, water, or electricity or other works for purposes of a public character.
54 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN.
sketcli, model, or note calculated or intended to be useful to
an enemy, or obtains or communicates to any otber person
any such sketch, &c., or other document or information, he
is guilty of felony and liable to penal servitude for seven
years (t). Any person who has in his possession or control
any sketch, document, or information, which relates to a
prohibited place, or has been made or obtained in con-
travention of the Act, or which has been entrusted in
confidence to him, and who communicates it to any un-
authorised person or who retains it when he has no right to
retain it, is guilty of a misdemeanour punishable by imprison-
ment for two years, or by a fine, or by both. The person who
receives such sketcli, document, or information, having
reasonable ground at the time to believe that it is .com-
municated to him in contravention of the Act, is also guilty
of a misdemeanour punishable in the same way, unless he
proves that the communication was contrary to his desire (I).
Attempting to commit or inciting to the commission of these
offences in punishable in the same way as the principal
offence (7).
A person who knowingly harbours any one whom he has
reasonable grounds for supposing to be about to commit
or to have committed any of these offences, or who, having
harboured any such person, wilfully refuses to disclose to a
superintendent of police any information as to such person,
is guilty of a misdemeanour punishable by imprisonment
with or without hard labour for one year, or by a fine, or by
both (m). A prosecution under this Act can only be com-
menced with the consent of the Attorney-General or Solicitor-
General (n).
A variety of other offences affecting the Sovereign and
Government, and thence called contem'pU or liigli mis-
demeanours, might be noticed, but it will suffice here merely
to mention them, referring for a fuller notice to Blackstone's
Commentaries. They consisted of contempts against the
(t) Ibid. s. 1. {k) Ibid. s. 2.
(I) Ibid. s. 4. {m) Ibid. s. 7.
(n) Ibid. ss. 8, 12.
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 55
King's palaces or Courts of Justice, or against his title,
i:)erson and government, or prerogative. No prosecution for
such offences has occurred in modern times. It is, however,
a contempt against the King, punishable by fine and imprison-
ment, to disobey any of his lawful commands, e.g., the orders
of his Courts (o) or the provisions of a statute prohibiting a
general grievance or commanding a public convenience {p).
io) V. p. 81. (p) V. p. S.
CHAPTER III.
OFFENCES AGAINST RELIGION.
(Jertain acts or courses of conduct which are forbidden by-
religion are also productive of disorder and mischief to the
•community. These acts have therefore been declared illegal,
and offenders are punishable, not for a breach of the law of
God, as such, but for offending against the law of the country.
That the State does not consider itself bound to enforce in
every respect the obligations of morality is obvious from the
fact that mere lying and other acts of immorality are not
within the pale of the criminal law.
apostasy — blasphemy.
The punishment for apostasy, or the total remmciation of
Christianity, was for a long period death. It was afterwards
provided that if any one educated in, or having made
profession of, the Christian religion, by writing, printing,
teaching, or advised speaking, maintained that there were
more Gods than one, or denied the Christian religion to be
true, or the Holy Scripture to be of divine authority, he
should for the first offence be incapacitated for civil or
aiilitary employment, and for the second offence suffer im-
prisonment for three years (g).
Blasphemy is also punishable at common law by fine and
imprisonment. The offence includes the irreverent denial or
ridicule of the Christian religion, or contumelious reproaches
{q) 9 & 10 Wm. III. c. 32; in the Revised Statutes, c. 35. It is believed that
'there has been no prosecution under this statute.
OFFENCES AGAINST RELIGION. 57
of Jesus Christ, or profane scoffing at the Holy Scriptures
or exposing any part thereof to hatred and ridicule. But
blasphemy consists not in an honest questioning of the truths
of the Christian religion, but in a wilful intention to pervert,
insult, and mislead others by means of licentious and con-
tumelious abuse applied to sacred subjects (r). Publications
which, in an indecent and malicious spirit, assail and asperse
the truth of Christianity, or of the Scriptures, in language
calculated and intended to shock the feelings and outrage
the belief of mankind, are properly regarded as blasphemous
libels (a). But the disputes of learned men upon particular
points of religion are not punished as blasphemy. The law
is rarely put in force, and then only when the libel is of a
most extravagant or outrageous nature.
DISTUllBING PUBLIC WORSHIP.
Any person wilfully and maliciously or contemptuously
disturbing any lawful meeting of persons assembled for
religious worship, or molesting the person officiating or any
of those assembled, upon proof by two or more credible
witnesses before a magistrate, must answer for such offence
at the quarter sessions, and upon conviction is fined forty
pounds (t). Riotous, violent, or indecent behaviour in a place
of worship, otherwise called " brawling," is punishable on
summary conviction by a fine of five pounds or imprisonment
for two months (u).
A similar offence is that committed by a person who, in
any churchyard or graveyard in which parishioners have a
right of burial, under the Burial Laws Amendment Act, 1880,
delivers an address not being part of or incidental to a
religious service permitted by that Act, and not otherwise
permitted by any lawful authority, or who in any such place
wilfully endeavours to bring into contempt or obloquy the
(r) R. V. Ramsay, [1883] 48 L. T. N. S. 733; 15 Cox, 231; R. v. Boulter,
[1908] 72 J. P. 188.
(s) R. V. Bradlaugh, [1883] 15 Cox, 217.
(t) 52 Geo. III. c. 165, s. 12.
(u) V. 23 & 24 Vict. c. 32, s. 2. See also post, p. 179. /
58 OFFEXCES AGAINST RELIGION.
Christian religion, or tlie belief or worship or the members or
any minister of any Church or denomination of Christians,
or is guilty of any riotous, violent, or indecent behaviour at
any burial under the Act, or wilfully obstructs such a burial.
These offences are misdemeanours (w).
MISCELLANEOUS.
Profane swearing is punishable on summary conviction by
fine (x).
Profanation of the Sabbath is also under certain circum-
stances an offence. A statute of Charles II. provides that no
person may do any work of his ordinary calling upon the
Lord's Day, works of necessity and charity only excepted,
under penalty of five shillings. Nor may any one expose
to sale any wares, on penalty of forfeiting his goods ; nor may
drovers, &c., travel, under a penalty of twenty shillings [y).
But no prosecution for such offence may now be commenced
without the consent of the chief officer of police of the district,
or of two justices, or of a stipendiary magistrate {z).
Places of entertainment, amusement, or debate, open on
Sunday, admission to which is paid for, are to be deemed dis-
orderly houses, and the keeper fined or imprisoned {a). The
Crown is now, however, empowered to remit the penalties (6).
Fortune-telling, Sfc. — By an Act of 1735 (c), the old
penalties of the common law for witchcraft were abolished.
But by the same Act it was made punishable by twelve
months' imprisonment to undertake to tell fortunes or to
pretend, from skill in any occult or crafty science, where lost
iw) 43 k 44 Vict. c. 41, s. 7. v. also p. 179.
(X) 19 Geo. IT. c. 21.
iy) 29 Car. IT. c. 7.
(z) 34 & 35 Vict. c. 87 ; the section making this Act temporary was repealcil
by 56 & 57 Vict. c. 54.
(a) 21 Geo. Til. c. 49, s. 1 ; v. Terrif v. The Brighton Aquarium Company,
[1875] L. R. 10 Q. R. 306 ; 44 L. J. M. C. 173 ; 32 L. J. N. S. 458.
(b) 38 & 39 Vict. c. 80.
(c) 9 Geo. IT. c. 5.
OFFENCES AGAINST liELIGION . 59
or stolen goods could be found. Tliis Act, however, is prac-
tically superseded by the Vagrancy Act, 1824 (d), under
which every person is summarily punishable as a rogue and
vagabond who pretends to tell fortunes or uses any subtle
craft, means, or device, by palmistry or otherwise, to deceive
and impose.
id) 5 Geo. IV. c. 83 ; v. p. 127.
CHAPTER lY,
OrFENCES AGAINST TUBLIC JUSTICK.
In the first place we shall treat of that class of offences
against public justice which consist in avoiding, or assisting
another to avoid, lawful custody or the punishments awarded
by a Court of Justice.
ESCAPE.
The offence of escape is committed (i) by a prisoner who,
without the use of force, escapes from custody or prison; (ii)
by a custodian who allows a prisoner to escape.
If a prisoner, whether innocent or guilty, escapes without
force from lawful custody, whether the escape is made from
gaol or in transit thereto, he is guilty of a common law mis-
demeanour and punishable by fine and imprisonment (e).
Officers who, after an arrest, negligently allow a prisoner
to escape, are punishable with a fine (/) ; if they voluntarily
permit it, they are deemed guilty of the same offence, and
are liable to the same punishment as the prisoner who escapes
from their custody, and this whether the latter has been
committed to gaol or is only under bare arrest. But the
officer cannot be thus punished for a felony until after the
original offender has been convicted. Before the conviction,
however, he may be fined and imprisoned as for a mis-
demeanour. Allowing an escape is only punishable criminally
(e) Archbold, 1113.
if) Or. according to some authorities, by fine and imprisonment; v. Arch-
b.>id. 1117
OFFENCES AGAINST PUBLIC JUSTICE. 61
if the original imiDiisonment were for some criminal matter.
If the prisoner is in custody for and is guilty of felony, the
officer is also punishable as an accessory after the fact.
Private individuals having persons lawfully in their
custody, who negligently allow an escape, are punish-
able by fine and imprisonment; if voluntarily, they are
punishable as an officer would be under the same circum-
stances. It is the duty of a private individual to deliver
over to an officer any person whom he has lawfully arrested.
Aiding in the escape of a prisoner from a prison, other
than a convict, military, or naval prison (g), or, with intent
so to aid, conveying to him a mask, disguise, instrument, or
any other thing, is a felony j)unishable with imprisonment
to the extent of two years [K). Aiding a prisoner in custody
for treason or felony to make his escape from prison, or from
the constable or officer conveying him under a warrant to
])rison, is a felony punishable with penal servitude to the
extent of seven years (?'). Aiding a prisoner of war to escape
is a felony punishable with penal servitude for life [h).
BllEACII OF TEISON.
This offence consists in the escape from lawful custody by
the use of any force. The consequences vary according to
the crime for which the prisoner is in custody. If he is in
custody for treason or felony, the breach is also felony (Z),
and punishable by penal servitude to the extent of seven
years. If he is in custody for any other offence, the breach
is <j misdemeanour, and punishable by fine and imprisonment.
There seems also to be this difference between the two cases —
in the first it must be proved that the prisoner escaped; in
the second this is not necessary.
ig) As to these, see the statutes quoted in Arch. 1116.
(h) 28 & 29 Vict. c. 126, s. 37.
(t) 16 Geo. II. c. 31, s. 3 ; 54 & 55 Vict. c. 69, s. 1, sub-s. 2.
ilc) 52 Geo. III. c. 156; 54 & 55 Vict. c. 69, s. 1, sub-s. 2.
il] 1 Edw. II. St. 2, c. 1, in Revised Statutes, 23 Edw. 1. Stat, de fravcj
pris.
62 OFFENCES AGAINST PUBLIC JUSTICE.
To constitute this offence there must be an actual breaking,
though an accidental displacement of loose bricks on the top
of a wall has been held to be a breaking (m). Merely getting
over the wall or the like is an escape only. It will be a
sufficient defence to prove that the prisoner lias been indicted
for the original offence and acquitted ; but unless he has been
actually acquitted, or he can prove that no such offence was
ever committed, it is not material whether the accused was
guilty of the original offence or not.
" Prison " here includes any place where one is lawfully
imprisoned, whether upon accusation or after conviction;
for example, in the gaol or constable's house.
BEING AT LAEGE DURING TEKM OF PENAL SERVITUDE.
Penal servitude was substituted for transportation in the
year 1857 (n), but the incidents of the latter attach to the
former.
For a convict to be at large without lawful authority, which
it lies on him to prove, before the expiration of the term
of transportation or penal servitude to which he was sentenced,
is a felony punishable bv penal servitude to the extent of
life (o).
RESCUE.
Rescue is the forcibly and knowingly freeing a prisoner
from lawful custody. If the original offender is convicted,
the rescuer is guilty of the same offence as such original,
whether it be treason, felony, or misdemeanour. If the
rescuer is thus convicted of felony, the punishment may be
penal servitude to the extent of seven years (p) ; if of mis-
demeanour, fine and imprisonment. If the original offender
is not convicted, the rescuer may still be punished by fine
(m) R. V. Haswell, E. & E. 458.
(n) 20 & 21 Vict. c. 3.
(o) 5 Geo. IV. c. 84, s. 22; 4 & 5 Wm. IV. c. 67.
(p) 1 & 2 Geo. IV. c. 88, s. 1.
OFFENCES AGAINST PUBLIC JUSTICE. 63
and imprisonment as for a misdemeanour (q). If the prisoner
was in private custody, the rescuer is not liable criminally
unless he knew him to be in custody on a criminal charge.
Rescuing or attempting to rescue a person convicted of
murder, whilst proceeding to execution; or rescuing out of
prison a person committed for or convicted of murder, is a
felony punishable with penal servitude to the extent of life (r).
Rescuing or attempting to rescue an offender sentenced to
penal servitude from a person charged with his removal, is a
felony punishable in the same way as if the party rescued
had been in gaol (s).
Another common law misdemeanour is pound breach, that
is, rescuing goods or cattle from the custody of the law when
impounded for rent or (in case of cattle) damage feasant (t).
It is seldom, however, that a prosecution occurs, as by statute
a civil remedy in treble damages is given for pound
breach (u). To rescue cattle distrained when straying or
damage feasant is also summarily punishable under various
statutes (w).
OBSTRUCTIxVG LAWFUL ARREST, ETC.
A person opposing the arrest of a criminal becomes thereby
an accessory in felony, and in treason and misdemeanours a
principal (a*).
An assault upon, resistance to, or wilful obstruction of a
peace officer in the execution of his duty, or any person acting
in his aid, or an assault upon any person with intent to
resist or prevent the lawful apprehension or detainer of the
I^erson assaulting or of any other person for any offence, is
a misdemeanour, punishable with imprisonment to the extent
of two years (y). Wounding, doing grievous bodily harm to,
(q) Archbold, 1150.
(r) 25 Geo. II. c. 37, s. 9; 7 Wm. IV. & 1 Vict. c. 91, s. 1.
(s) 5 Geo. IV. c. 84, s. 22.
(t) R. V. Butterfield, [1893] 17 Cox. 598 ; R. v. Nicholson, [19011 fi'; J. P. 298.
(m) 2 Wm. & Mary, c. 5, s. 3; and 11 Geo. II. c. 19, s. 30
{w) V. Archbold, 1176.
(x) V. pp. 28. ,
iy) 24 & 25 Vict. c. 100, s. 38.
64 OFFENCES AGAINST PUBLIC JUSTICE.
shooting at, or attempting to shoot at, any person with such
intent is punishable with penal servitude to the extent of
life (c). Assaulting and obstructing peace officers in the
execution of their duty is also summarily punishable under
other statutes (d).
In cases where a coroner has jurisdiction to hold an inquest,
it is a misdemeanour to destroy the dead body, or otherwise
to prevent the holding of an intended inquest upon it, and
to do so amounts to an obstruction of an officer in the
discharge of his duty (e).
Not only positively obstructing an officer, but also refusing
to aid him in the execution of his duty in order to preserve
the peace is a crime. This offence is a misdemeanour at
common law (/) ; but the prosecution must show that a breach
of the peace was at the time being committed in the presence
of the constable, and that there was a reasonable necessity
for him to call on the defendant to render him assistance (g).
PERJURY.
The law upon this subject has now been consolidated by
the Perjury Act, 1911 (h).
If any person lawfully sworn as a witness or as an in-
terpreter in a judicial proceeding (which expression includes
a proceeding before any Court, tribunal, or person having by
law power to hear, receive, and examine evidence on oath)
wilfully makes a statement material in that proceeding which
he knows to be false, or does not believe to be true, he is
guilty of perjury and is liable to penal servitude for seven
years or to imprisonment wnth or without hard labour for
tw^o years, or to a fine, and a fine may be imposed in addition
to the penal servitude or imprisonment (i). The false state-
(c) 24 & 25 Vict. c. 100, s. 18.
(d) 34 & 35 Vict. c. 112, s. 12; 48 & 49 Vict. c. 75, s. 2.
(e) R. V. Stephenson, [1884] 13 Q. B. D. 331; 53 L. J. M. C. 176.
(/) V. R. V. Sherlock, [1866] L. R. 1 C. C. R. 20; 35 L. J. M. C. 92.
(g) R. V. Brown, [1841] C. & M. 314.
(h) 1 & 2 Geo. V. c. 6. The Act does not extend to Scotland or Ireland.
(i) Id., s. 1. " Oath " includes " affirmation " and " declaration," s. 15.
OFFENCES AGAINST PUBLIC JUSTICE. 65
ment need not be made before the tribunal itself; it will be
sufficient to constitute the offence if it is made on oath before
a person authorised by law to administer an oath and to
record or authenticate the statement provided the oath is
taken for the purpose of a judicial proceeding (k), e.g., an
affidavit intended to be used upon an application in an action.
Every Court, Judge, justice, officer, commissioner, arbitrator,
or other person having, by law or by consent of parties,
authority to hear, receive, and examine evidence, is em-
powered to administer an oath to all witnesses legally
called (l).
A false statement made by a person lawfully sworn in
England for the purpose of a judicial proceeding in another
part of the King's Dominions, or in a British tribunal law-
fully constituted in any place outside the King's Dominions
{e.g., a Consular Court), or in a tribunal of any foreign State
will amount to perjury within the meaning of the Act; so
also will a false statement made for the purposes of a
judicial proceeding in England, if made by a person lawfully
sworn under the authority of an Act of Parliament in any
other part of the King's Dominions or before a British
tribunal or a British officer in a foreign country, or within
the jurisdiction of the Admiralty of England (m).
The oath must be made wilfully, that is, not by in-
advertence or mistake. It must also be made falsely; that
is, the defendant must know the matter to be false or not
know it to be true (n).
It is not necessary in all cases that he should know that
it was untrue; for he will be guilty if he swears to the truth
of his statement, not knowing anything about the matter, for
he cannot then be said to believe it to be true (o) ; much more
if he swears to its truth, thinking what he swears is untrue.
In other words, he is guilty if the jury is satisfied that his
intention was to deceive. And he may be indicted for perjury
(k) Ibid.
(I) 14 & 15 Vict. c. 99, s. 16.
(m) 1 & 2 Geo. V. c. 6. s. 1, sub-ss. 4, 5.
(n) V. section 1, sub-section 1.
(o) R. V. Mawbey, [1796] 6 T. R. 619, 637.
C.L.
66 OFFENCES AGAINST PUBLIC JUSTICE.
if he swears that he only believes such and such to be the
case if he knows it not to be so (p).
It will have been observed that to be punishable as perjury
the false words must be a material statement, i.e., they must
relate to something which is relevant (q), and be made for
the purpose of affecting a decision of the " Court, tribunal, or
person." A statement is therefore material if it affects the
credit of a witness (/•) or the admissibility of evidence (s) or
even if, after conviction, it is made by the prisoner in
mitigation of his sentence {t).
The question whether a statement on which perjury is
assigned in an indictment was material, is a question of law
for the Judge to decide, and not a question for the jury (u).
It is not necessary to constitute perjury that the false
oath be believed by the Court before which it is taken, or that
any person be damaged by it ; for the prosecution is grounded,
not on the damage to the party, but on the abuse of public
justice.
A false verdict is not regarded as perjury, because it is
said the jurors do not swear to depose to the truth, but only
to judge of the deposition of others (w;).
Perjury and offences punishable under the Perjury Act,
1911, are offences to which provisions of the Vexatious
Indictments Act apply; and, tKerefore, no bill of indictment
can be presented to or found by the grand jury unless one of
the preliminary steps indicated in that Act has been taken (a;).
If any Judge of a Court of record or a petty sessional Court,
or any justice of the peace sitting in special sessions, or any
sheriff before whom a writ of enquiry or a writ of trial is
executed, is of opinion that any witness in a proceeding
before him has been guilty of perjury, he maj order him to
be prosecuted for perjury if he thinks there is sufficient cause
(p) R. V. Pedley, [1772] 1 Leach C. C. 327.
(q) V. p. 383.
(r) R. V. Baker, [1895] 1 Q. B. 797 ; 64 L. J. M. C. 177.
(s) Arch. 1130.
(t) R. V. Wheeler, [1917] 1 K. B. 283; 86 L. J. K. B. 40; 12 Cr. App. R. 159.
(m) 1 & 2 Geo. V. c. 6, s. 1, sub-s. 6.
iw) 1 Ruas. 320.
(x) 1 & 2 Geo. V. c. 6, s. 11; v. p. 330.
OFFENCES AGAINST PUBLIC JUSTICE. 67
for sucli a prosecution, and he may commit him for trial at
the assizes (y).
A Court of quarter sessions has no jurisdiction to try an
indictment for perjury or subornation of perjury or for any
offence against the Perjury Act, 1911 (z).
A person cannot be convicted of perjury or of any oifefice
against the last-mentioned Act, or of subornation of perjury,
solely upon the evidence of one witness as to the falsity of
any statement which he is accused of having made (a). Two
witnesses must contradict what the accused has sworn; or,
at least, one must so contradict, and other evidence must
materially corroborate that contradiction (h). But this rule
does not apply when the perjury consists in the defendant
having contradicted what he swore on a former occasion ; in
this case the testimony of a single witness in support of the
defendant's own original statement will suffice (c).
False oaths which are not taken in the course of a judicial
proceeding are not, properly speaking, perjury, but with
regard to such oaths the Perjurj^ Act, 1911, provides that if
any person, being required or authorised by law to make any
statement on oath for any purpose, and being lawfully sworn,
wilfully makes a statement which is material for that purpose
and which he knows to be false, or does not believe to be
true, he is guilty of a Ttiisdemeanour and is punishable in
the same way as if he had committed perjury [d). Certain
cases are specifically provided for by the Act, namely : —
Using a false affidavit for the purposes of the Bills of
Sale Acts (e).
False oaths or declarations or statements with reference
to marriages (/), or as to births or deaths [g).
(l/) 1 & 2 Geo. V. c. 6, s. 9.
(z) Ibid. s. 10.
(a) Ibid. s. 13.
(b) V. R. V. Boulter, [1852] 21 L. J. M. C. 57 ; 5 Cox, 543; R. v. Braithwaite,
[1859] 1 F. & P. 638; R. v. Threlfall, 111 L. T. 168; 24 Cox, 230.
(c) R. V. Hook, [1858] D. <fc B. 606; 27 L. J. M. C. 222.
(d) 1 & 2 Geo. V. e. 6, s. 2.
(e) Ibid.
</) 1 & 2 Geo. V. c. 6. s. 3.
(g) Ibid. s. 4.
68 OFFENCES AGAINST PUBLIC JUSTICE.
A person wlio knowingly and wilfully makes (otherwise
than on oath) a statement false in a material particular in (i)
a statutory declaration, or (ii) in an abstract, account, balance-
sheet, book, certificate, declaration, report, &c., which he is
authorised or required to make or verify by Act of Parliament,
or (iii) in any oral declaration or answer which he is required
to make by Act of Parliament, is guilty of a misdemeanour
and liable to imprisonment for two years or a fine, or to
both (/i).
A person who attempts to procure himself to be registered
under any Act of Parliament as a person qualified by law to
practise any vocation or calling, or to procure a certificate of
the registration of any person, by wilfully making either
verbally or in writing any declaration, certificate, or repre-
sentation which he knows to be false, is also guilty of a
misdemeanour punishable by imprisonment for one year or
a fine, or by both [i).
There are certain other statutes {Ti) which render punishable
certain other false declarations with regard to the subjects
with which such statutes deal.
Among such subjects are: —
Parliamentary and Municipal elections : 35 & 36 Vict. c. 33.
In Bankruptcy matters : v. p. 98.
In matters relating to the customs, &c. : 39 & 40 Yict. c. 36,
8. 168.
A County Court bailiff indorsing a false memorandum of
service of process : 51 & 52 Yict. c. 43, s. 78.
False statements in reports or certificates for the purpose
of the audit or investigation of trust accounts by a duly
appointed auditor or by the public trustee : 6 Edw. VII.
c. 55, s. 13 (8) (/).
(/i) Ihid. s. 5.
(i) Ihid. s. 6.
(fe) Others have been repealed by the Perjury Act, 1911.
(Z) This offence is punishable upon conviction on indictment by imprisonment
for two years and a fine, or on summary conviction by imprisonment for six
months and a fine.
OFFENCES AGAINST PUBLIC JUSTICE. 69
SUBORNATION OF PERJURY.
The procuring another to take such a false oath as would
constitute perjury in the principal {m). The punishment
for subornation is the same as for perjury itself; and the same
course has to be taken under the Vexatious Indictments Act.
Inciting or attempting to suborn another person to commit
perjury is a misdemeanour punishable by fine and imprison-
ment (n).
VOLUNTARY OATHS.
It is unlawful for a justice of the peace or other person to
administer or receive, or cause or allow to be administered or
received, any oath, affidavit, or solemn affirmation touching
any matter wherof he has not jurisdiction or cognisance by
some statute in force (o). The offence is a misdemeanour,
punishable by fine or imprisonment, or both. The ad-
ministering, &c., is punishable, although the person did
not act wilfully in contravention of the statute, but only
inadvertently (p).
BRIBERY.
The offence of bribery comprises acts differing considerably
from each other. They may be divided into three classes : —
(1) Where some public official is approached by one bring-
ing him a reward, in order to influence his conduct in his
office.
(2) Where some person having it in his power to procure
or aid in procuring for another a public place or appointment,
is so approached (g).
(3) Where a reward is corruptly paid to an agent of another
person to induce such officer or agent to do some act in breach
of his duty.
(m) Archbold, 1134.
(n) 1 & 2 Geo. V. c. 6, s. 7.
(o) 5 & 6 Wm. IV. c. 62, s. 13.
(p) fl. V. Nott, [1843] 12 L. J. M. C. 143.
(q) V. 1 Hawk. c. 67, ss. 1—3.
70 OFFENCES AGAINST PUBLIC JUSTICE.
(1) Tlie offence of offering to, or receiving by, a public
officer, judicial or ministerial, an undue reward to influence
his behaviour in bis office, is a misdemeanour at common law
punishable by fine and imprisonment. Both the giver and
the taker are guilty. And though the reward be refused, the
offerer is equally punishable for the attempt. The offence
is not restricted to the case of influencing the higher officers,
such as Judges or members of the Government, but extends
to those in a subordinate position. Thus, for example, the
colonel of a regiment is a public and ministerial officer, and
it is a misdemeanour for him to receive, or for any one to
pay him, a bribe to show favour in respect of catering
contracts for his regiment (r). So also a constable is a public
official [s).
The bribery of Customs officers and Excise officers is
punishable by special statutes (/), but is not indictable. A
particular species of bribery, viz., corruptly influencing
jurymen, will be treated of hereafter under the title of
Embracery [u).
By the Public Bodies Corrupt Practices Act, 1889 [w),
every person who corruptly solicits or receives any gift or
reward for himself or on account of any member, officer, or
servant of a public body (including a County or Town Council,
Vestry, and certain other bodies defined by the Act) to induce
him to do or forbear from doing anything in respect of any
transaction in which the public body is concerned, and also
any person off'ering or paying any gift or reward for such
a purpose is guilty of a misdemeanour. The punishment is
imprisonment for two years, or a tine of £500, or both, and
an offender who has received a bribe may be ordered to pay it
over to the public body. He may also be adjiidged to forfeit
any public office held by him at the date of his conviction and
to be incapable of holding a public office for seven years.
(r) R. V. Whitaker. [1914] 3 K. B. 12S3; 84 L. J. K. B. 225; 10 Cr. App. R.
245.
(s) R. V. Lehwers, 140 Cent. Crim. Ct. Sess. Pap. 131.
(t) 39 & 40 Vict. c. 36, s. 217 ; 53 & 54 Vict. 21, s. 10.
(u) V. p. 75.
(w) 52 & 53 Vict. c. 69.
OFFENCES AGAINST PUBLIC JUSTICE. 7.1
Upon a second conviction for a like offence he raay be
subjected to further disabilities. The consent of the Attorney-
General is required before a prosecution can be commenced
under the Act.
(2) For the sake of convenience we may distinguish two
varieties of the offence of bribery to secure a place or
appointment :
(a) When the place or appointment is in the gift of some
public officer.
(b) When it is determined by public election.
(a) This offence may also be regarded as falling under the
first class (1), inasmuch as the presentation to the place by
the public officer is one of the duties of his office. The
offence is a misdemeanour at common law. Thus the attempt
to procure an appointment by offering a sum of money to a
Cabinet Minister was punished as a misdemeanour (.t).
By particular statutes it has also been provided that persons
buying or selling, or receiving or paying money or rewards
for offices, are guilty of a misdemeanour punishable by fine
and imprisonment, forfeiture of the office and disqualification
from ever holding it (y). So also are persons who do not
thus directly buy or sell, but who pay money for soliciting
or obtaining offices, or any negotiations or pretended negotia-
tions relating thereto (z).
(b) Bribery at elections.
Bribery or attempted bribery at elections, whether parlia-
mentary, municipal, parochial, or for any other public office
or appointment, and the treating of voters in connection
therewith, have always been offences at common law (a),
which, it has been said, abhorred any tendency to corruption.
But in most cases the offence is also punishable under
particular statutes.
(x) R. V. Vaughan. [17fi9] 4 Burr. 2494.
(i/) 5 & 6 Edw'. VI. c. 16, s. 1 ; 49 Geo. III. c. 126, ss. 1, 3.
(z) Ibid, 8. 4.
(a) R. V. Pitt avd Mead. [1762] 3 Burr. 1335; Hughes v. Marshall, [1831]
3 Tyr. 134; R. v. Lancaster, [1890] 16 Cox C. C. 737.
id OFFENCES AGAINST PUBLIC JUSTICE.
As to parliamentary elections. — Tlie statute law on this
subject is contained chiefly in the Corrupt Practices Pre-
vention Acts, the chief of which are mentioned below (6).
The offences declared to be bribery on the part of the
candidate or his agents are the following :
(a) To, directly or indirectly, give, lend, or agree to give
or lend; or offer, or promise, any money, or valuable con-
sideration (c), to or for any voter, or other person in order
to induce any voter to vote, or refrain from voting, or to
corruptly do any such act on account of such voter having
voted or refrained from voting at any election. An offer to
pay rates, &c., has been since included in this offence (d).
(b) To give, &c., any office, place, or employment, under
the same circumstances (e).
(c) To pay, &c., money, with the intent that it shall be
expended in bribery; or knowingly to pay it in discharge of
what has been so expended (/).
These, and also "treating" and "using undue influence,"
are comprised in the term " corrupt practice " (g).
Treating is defined to be corruptly providing any meat,
drink, entertainment, or provision to any person, for the
purpose of corruptly influencing him to give or refrain from
giving his vote at the election.
Undue influence is defined to be the use of or threats to
use any force, violence, or restraint, or to inflict or threaten
any temporal or spiritual injury or loss upon any person in
order to induce or compel him to vote or refrain from voting,
or by duress or any fraudulent device to impede the free
exercise of the franchise of any elector (Ji).
(b) 17 & 18 Vict. c. 102, amended by 21 & 22 Vict. c. 87 ; 26 & 27 Vict. c. 29 ;
30 & 31 Vict. c. 102, s. 49; 31 & 32 Vict. c. 125, ss. 43—47. As to these Acts,
the Corrupt Practices Act, 1883, 46 & 47 Vict. c. 51. has repealed the following,
viz. : sections 1, 4, 5, 6, 9, 14, 23, 36, 39, and parts of 2, 3, 7, and 38 of the
first of these Acts; the whole of the second, the whole of the third except sec-
tion 6, part of section 34 of the fourth, and sections 43, 45, 46, and 47 of the
fifth. See also 58 & 59 Vict. c. 40.
(c) 17 & 18 Vict. c. 102, ss. 2 and 3.
(d) 30 & 31 Vict. c. 102, s. 49
(e) 17 & 18 Vict. c. 102, s. 2.
(/) Ihid.
ig) 46 & 47 Vict. c. 51, ss. 1—3.
(Ji) 46 & 47 Vict. c. 51, s. 2.
OFFENCES AGAINST PUBLIC JUSTICE. 73
Any voter who allows himself to be bribed or treated is
also guilty of brij)erv or treating (i).
The commission of any '' corrupt practice " other than
personation, or procuring personation, is a misdemeanour.
The punishment is imprisonment for one year, or a fine not
exceeding £200.
Personation of a voter, or procuring such personation, is a
felony, and is punishable by imprisonment with hard labour
for two years (k).
By the same statute a large number of acts are declared
to be " illegal practices," and are made punishable on
summarij conviction by a fine of £100 (I). It is unnecessary
to specify all these offences, but they chiefly have relation
to expenses improperly incurred by a candidate at an election,
to payments made to electors for printing, advertising, &c.,
to the use of certain premises as committee rooms, and to
the publication of untrue statements with regard to a rival
candidate.
A corrupt agreement to withdraw an election petition is a
misdemeanour punishable by imprisonment for twelve months
and a fine of £200 (w).
Certain disqualifications also attach to candidates and
others who have been found guilty of bribery, corrupt
practices, &c., as to which reference may be made to the
Corrupt Practices Act, 1883.
The Ballot Act, 1872 (71), sec. 3, declares certain fraudulent
dealings with ballot papers and ballot boxes to be mis-
demeanours. The punishment in the case of an election officer
or clerk is imprisonment for two years, and in the case of any
other person imprisonment for six months.
As to municipal elections. — Any person who is guilty of
a " corrupt practice " at such an election is liable to the same
prosecution and punishment as if the corrupt practice had
been committed at a parliamentary election. The law as to
(t) 17 & 18 Vict. c. 102, s. 3; 46 & 47 Vict. c. 51, s. 1.
(fc) Ibid. s. 6.
(l) Ibid. ss. 7—12.
(m) Ibid. s. 41.
(n) 35 & 36 Vict, c 33.
<4 OFFENCES AGAINST PUBLIC JUSTICE.
"illegal practices " is also substantially the same as in the
case of parliamentary elections (o). ^
(3) The bribery of agents :
By the Prevention of Corruption Act, 1906, it is provided
that (i) if any agent (which term will include any servant
or employee) corruptly accepts or agrees to accept, or
attempts to obtain from any person, for himself or for any
other person, anj)- gift or consideration as an inducement or
reward for doing or forbearing to do or for having done any
act in relation to his principal's affairs or business, or for
showing or forbearing to show favour or disfavour to any
person in relation to the principal's affairs, or (ii) if any
person corruptly gives or agrees to give any. consideration to
an agent for acting in such a way, or (iii) if any person
Vnowingly gives to an agent, or if an agent knowingly uses
with intent to deceive his principal any receipt, account, or
other document in respect of which the principal is interested
and which contains any statement which is false in any
material particular and which to his knowledge is intended
to mislead the principal, he is guilty of a misdemeanour and
liable on conviction on indictment to imprisonment for two
years or to a fine of £500, or to both, or on summary con-
viction to imprisonment for four months or to a fine of £50,
JOT to both. But a prosecution for such an offence cannot be
instituted without the consent of the Attorney-General or
Solicitor-General (/?).
By the Prevention of Corruption Act, 19.16, it is provided
that, where an offence under the Prevention of Corruption Act,
1906, or under the Public Bodies Corrupt Practices Act (q),
has been committed in relation to a contract or proposal
for a contract with His Majesty, or any Government depart-
ment or any public body, or a sub-contract to execute such
work, penal servitude up to seven years may l)e awarded instead
of imprisonment (r). Any money, gift or consideration given
or received by a person in the employment of His Majesty,
(01 V. 47 & 48 Vict. c. 70 ; 1 & 2 Geo. V. c. 7.
(p) G Edw. VII. c. 34.
((/) V. p. 70.
(r) 6 & 7 Geo. V. c. 64, s. 1.
OFFENCES AGAINST PUBLIC JUSTICE. 75
etc., by or from a person or agent of a person, holding or
seeking to obtain a contract from His Majesty, etc., shall be
deemed to have been given or received corruptly unless the
contrary is proved (5).
EMBRACERY, ETC.
Embracery is an attempt to influence a jury corruptly to
give a verdict in favour of one side or party, by promises,
persuasions, entreaties, money, entertainments, or the like.
A juryman himself may be guilty of this offence by corruptly
endeavouring to bring over his fellows to his view. The
offence is a misdemeanour, both in the person making the
attempt and in those of the jury who consent. The punish-
ment— both at common law and by statute — is fine and
imprisonment (t).
COMMON BARRATRY.
This is the offence of habitually inciting and stirring up
suits and quarrels between His Majesty's subjects, either at
law or otherwise (u). It is insufficient to prove a single act,
inasmuch as it is of the essence of the offence that the
offender should be a common barrator. Moreover it is no
crime for a man frequently to bring actions in his own right,
though he be unsuccessful.
The offence is a misdemeanour, punishable by fine and
imprisonment.' If the offender is connected with the legal
profession, he is disabled from practising for the future. If,
having been convicted of this offence, he afterwards practises,
the Court may enquire into the matter in a summary way;
and on the subsequent practising being proved, the offender
may be sentenced to penal servitude to the extent of seven
years (w).
(s) Section 2.
(t) 6 Geo. IV. c. 50, s. 61.
(m) Archbold, 1146.
(w) 12 Geo. I. c. 29, s. 4.
76 OFFENCES AGAINST PUBLIC JUSTICE.
MAINTENANCE.
This is the unlawful intermeddling in a civil suit that in
no way belongs to one, by maintaining or assisting either
party, with money or otherwise, to prosecute or defend it (x).
It is a misdemeanour punishable by fine and imprisonment.
The subject is of more importance from a civil than from
a criminal point of view, as if the ob'^ect of an agreement
is to promote the criminal offence of maintenance or champerty
the agreement is illegal and cannot be enforced.
The offence is not committed by assisting another person in
a criminal prosecution or in his defence to a prosecution (y).
And acts of this kind are justifiable when the maintainer
is actuated by motives of charity (z) or has a common
interest in the action with the party maintained, as, e.g., from
kindred or from the relationship of landlord and tenant or
master and servant (a).
CHAMPERTY.
Champerty is a species of maintenance. The distinguish-
ing feature is, that the bargain is made with the plaintiff or
defendant campum partire, that is, in the event of success to
divide the land or other subject-matter of the suit with the
champertor in consideration of his carrying on the party's
suit at his own expense. Thus it has been held punishable as
champerty to communicate such information as will enable a
party to recover a sum of money by action, and to exert
influence in procuring evidence to substantiate the claim, upon
condition of receiving a portion of the sum recovered (&).
(x) Archbold, 1146; v. also Bradlauqh v. Neivdegate, [1883] 11 Q. B. D. 1;
.52 L. J. Q. B. 454.
(y) Grant v. Thompson, [1895] 18 Cox C. C. 100.
(z) Harris v. Brisco, 17 Q. B. D. 504; 55 L(. J. Q. B. 423.
(a) Bradlangh v. Neicdeqate, supra.
((b) Stanley' V. Jones, [1831] 7 Bing. 369.
OFFENCES AGAINST PUBLIC JUSTICE. i i
COMPOUNDING OFFENCES.
A private individual is not obliged to set the law in motion
for tlie prosecution of a criminal, though he is punishable
for the concealment of treason or felony (c). Thus, merely
to forbear to prosecute is no offence ; there is wanting some-
thing else to constitute a crime, and this essential is the
taking some reward or advantage.
Under this title we shall treat of compounding (a) felonies;
(b) misdemeanours; (c) informations on penal statutes;
noticing also the offence of taking rewards for helping to
recover stolen goods.
(a) Compounding felony, or forbearing to prosecute a felon
on account of some reward received, is a misdemeanour at
common law, punishable by fine and imprisonment. The
offence of compounding a felony is complete at the time when
the agreement to abstain from prosecuting is made; it is not
necessary, therefore, in an indictment for such an offence,
to allege that the prisoner did abstain from prosecuting, and
that by reason of such abstention the thief escaped prose-
cution (d). The offence is not confined to owners of stolen
property who enter into such agreements; any person,
therefore, who, having knowledge that a felony has been
committed, receives a reward upon his agreeing to abstain
from prosecuting, is guilty of this offence (e). The reward
need not be of a monetary nature, but may be any advantage
proceeding from or on behalf of the felon and accruing to
the person who forbears. The most common form of this
crime is what was anciently known as theft-bote, that is, the
forbearing to prosecute a thief, in consideration of receiving
one's stolen goods back again, or other advantage. But the
mere taking back stolen goods, without agreeing to show
any favour to the thief, is no crime. If after the compound-
ing the compounder nevertheless prosecuted the felon to
(c) V. pp. 39, 79.
(d) R. V. Burgess, [1885] 16 Q. B. D. 141 ; 55 L. J. M. C. 97.
(e) Ibid.
78 OFFENCES AGAINST PUBLIC JUSTICE.
conviction, the Judge would direct an acquittal of the
])rosecutor if he were himself prosecuted for the compound-
To corrwptly take any reward for helping a person to
recover property stolen or obtained by any felony or mis-
demeanour (unless all due diligence to bring the offender to
trial has been used), is felony punishable by penal servitude
to the extent of seven years, and in case of a male under
sixteen by whipping [g). An advertisement offering a
reward for the return of stolen or lost property, using words
purporting that no questions will be asked or seizure or
enquiry made after the person producing the property, or that
return will be made to any pawnbroker or other person who
has bought or made advances on such property of the amount
paid for or lent on the same, renders the advertiser, printer,
and publisher liable to forfeit £50 each to any person who
will first sue for it [h). But an action cannot be brought to
recover the forfeiture from the printer or publisher except
within six months after the forfeiture is incurred, nor at all
without the consent of the Attorney- or Solicitor-General [i).
(b) Compounding Tnisdemeanonrs. — An agreement to com-
j)ound a misdemeanour is not a criminal offence unless it is
done under circumstances constituting a conspiracy to pervert
justice. But it ik illegal in the sense that a contract for such
a purpose neither can be enforced by action, nor can interfere
with the right of the Crown to proceed with a prosecution for
a misdemeanour (k).
(c) CoTnyounding informations upon penal statutes. — In
order to promote the discovery and punishment of crime,
certain statutes imposing a pecuniary penalty on the offender
(/) R. V. Stone, [1830] 4 C. & P. 379.
(g) Larceny Act, 1916, s. 34.
(h) Larceny Act, 1861, s. 102.
(i) 33 & 34 Vict. c. 65, s. 3.
ik) Archbold, p. 1152. It has, however, been suggested that a compromise
may legally be made of an offence which might be the subject of a civil action
as, e.g., an assault. Ihid.. and v. Keir v. Leeman, [1844] 6 Q. B. 308; Fisher
V. Apollinaris Co., L. E. 10 Ch. 297.
OFFENCES AGAINST PUBLIC JUSTICE. 79
award the penalty, either in part or in whole, to any person
who prosecutes, hence termed a coimnon informer. It has
been enacted that if any informer makes any composition
without leave of the Court, or takes any money or promise from
the defendant to excuse him, he is guilty of a misdemeanour
punishable by fine and imprisonment, and is for ever disabled
from suing on any popular or penal statute (Z). A person
may be thus convicted of taking a reward for forbearing to
prosecute, although no offence liable to a penalty has been
committed by the person from whom the money is taken (m).
The Act does not, however, apply where the penalties com-
pounded for are only recoverable before justices (n).
MISPRISION OF FELONY.
Misprision of felony is the concealment of some felony
(other than treason) (o) committed by another. There must be
knowledge of the oft'ence merely, without any assent; for if
a man assent he will either he a principal or an accessory.
Thus one will be guilty of misprision who sees a felony com-
mitted, and takes no steps to secure the apprehension of the
offender. The offence is a misdemeanour, punishable by fine
and imprisonment ijp).
EXTORTION AND OTHER MISCONDUCT OF PUBLIC OFFICERS.
Every malfeasance, or culpable non-feasance of an officer
of justice, with relation to his office, is a misdemeanour at
common law punishable by fine or imprisonment, or both, and
removal from office. Under the term " officers of justice " are
included not only the higher officers, as Judges, sheriffs, but
also those of a lower rank, as constables. The proceedings
(Z) 18 Eliz. c. 5 ; 56 Geo. III. c. 138, s. 2.
(m) R. V. Best, [1839] 9 C. & P. 368.
(n) n. V. Cris-p. [1818] 1 B. & Aid. 282.
(o) Misprision of Treason, v. p. 39.
(p) Prosecutions for this offence appear to have long since fallen into desuetude.
See, however, WWliams v. Baylcy, [1866] L. R. I'H. L. at p. 220.
80 OFFENCES AGAINST PUBLIC JUSTICE.
will generally be by impeachment, or information in tbe
King's Bench, according to the rank of the oft'ender; but an
indictment will also lie.
As to malfeasance (q). — A judicial ojfficer is punishable for
any illegal act committed by him from fraudulent, corrupt, or
vindictive motives, or for manifest illegality and oppression
or gross abuse of power, or partiality and wilful abuse of
discretion. So also a ministerial officer, such as an overseer,
is liable for any illegal act committed in the execution of his
duties, from corrupt, vindictive, or improper motives (r).
Extortion, in the more strict sense of the word, consists in
an o-fficer unlawfully taking, by colour of his office, from any
man, any money or thing of value that is not due to him,
or more than is due, or before it is due (s). But it is not
criminal to take a reward, voluntarily given, and which has
been usual in such a case, for the more diligent or more
expeditious performance of his duty.
As to non-feasance. — An officer is equally liable for neglect
of his duty as for active misconduct. Thus an overseer is
indictable for not providing for the poor (i). A refusal by
any person to serve an office to which he has been duly
appointed, and from which he has no ground of exemption,
is an indictable offence.
There are special statutory provisions with regard to
sheriffs and their officers. If siich a person conceals a felon
or refuses to arrest -him in his bailiwick, or releases a prisoner
who is not bailable, or is guilty of certain other offences
against the Sheriffs Act, 1887 (w), he commits a mis-
demeanour, and is liable to imprisonment for a year, and may
be fined. If he withholds a prisoner bailable after he has
offered sufficient security, or takes or demands any money other
iq) As to Bribery, v. p. 69. et seq.
(r) Archbold, 130. 131.
(s) Archbold, 1150.
(t) Archbold, 1.31.
(u) 50 & 51 Vict. c. 55, s. 29, sub-s. 1.
OFFENCES AGAINST PUBLIC JUSTICE. 81
than the fees he is allowed by Act of Parliament (w), or grants
a warrant for execution of any writ before he has received
the writ, or is guilty of a breach of the provisions of the Act,
or of any wrongful neglect in the execution of his office, or
of any contempt of a superior Court, he may be punished as
for contempt of Court, and be compelled to forfeit £200, and
to pay all damage suffered by the party aggrieved (x).
CONTEMPT OF COURT.
A contempt of Court is a disobedience to the rules, orders,
or process or a disregard of the dignity of a Court of law.
All such contempts are misdemeanours punishable by fine and
imprisonment (y), but if committed against a Court of record,
that Court has, in most cases, power to fine and imprison the
offender in a summary way (z) It does not fall within the
purview of this work to treat of the latter mode of procedure,
which is now the usual way of dealing with this class of
offence. The remedy by indictment or information, however,
still remains (a).
Contempt of Court is of three kinds (5) : (i) Where some
contempt in face of the Court has been committed, (ii) Where
there has been a publication of scandalous matter of the Court
itself, (iii) Where any act is done or writing published calcu-
lated to obstruct or interfere with the due course of justice or
(w) This does not apply to overcharges made by mistake, Lee v. Danqar,
Grant d Co., [1892] 2 Q. B. 337 : 61 L. J. Q. B. 780.
(x) 60 & 51 Vict. c. 55, s. 29, sub-ss. 2, 3.
(y) Archbold, 1158.
(z) Courts of Record are those whose judicial acts and proceedings are enrolled
for a perpetual memorial and testimony ; which rolls are called the records of
the Court, and their truth cannot be questioned. This power to fine and
imprison is one of their chief distinguishing marks ; and the very erection of a
new jurisdiction with power of fine and imprisonment makes it instantly a Court
of Record.
(a) V. Judgment of Cave, J., in ft. v. Judge of Brompton County Court,
[1893] 2 Q. B. 195; 62 L. J. Q. B. 604. The summary jurisdiction of inferior
Courts of Record, such as the Mayor's Court, the Court of Quarter Sessions, and
County Court, is limited to contempts committed in facie curice. Ibid, and R.
v. Lefroy, L. R. 8 Q. B. 134; 42 L. J. (N. S.) Q. B. 121.
(b) McLeod v. St. Aubyn, [1899] A. C. 549; R. v. Gray, [1900] 2 Q. B. 36;
69 L. J. Q. B. 502.
C.L. 6
82 OFFENCES AGAINST PUBLIC JUSTICE.
the lawful process of the Courts. Examples of the latter class
of contempt are :
Intimidation of parties or witnesses (c).
Disobedience to the orders of the Court (d).
The manufacture of false evidence to mislead the Court (e).
The publication of comments relating to pending cases
which are calculated to prejudice the fair trial of those
cases and so interfere with the course of justice (/).
An agreement to indemnify bail (g).
(c) Archbold, 1145. By 55 & 56 "Vict. c. 64, it is a misdemeanour, punishable
by a fine of jEIOO, or imprisonment for three months, to threaten or injure a
person on account of his evidence given before a Royal Commission, or a Parlia-
mentary Committee, or on any enquiry held by statutory authority.
(d) See R. v. Robinson, 2 Burr. 799"; R. v. Johnson, 4 M. & S. 515 ; v. also
Archbold, p. 6.
(e) R. V. Vreones, [1891] 1 Q. B. 360; 60 L. J. M. C. 62.
(/) R. V. Tibbits, [1902] 1 K. B. 77; 71 L. J. K. B. 4. See also Archbold,
1159, 1160.
(g) R. V. Porter, [1910] 1 K. B. 369; 79 L. J. K. B. 241.
CHAPTER V.
OFFENCES AGAINST THE PUBLIC PEACE.
Many of the crimes mentioned in other chapters involve a
breach of the peace. But the offences now to be dealt with
are those in which the breach of the peace is the prominent
feature. In some — ^for example, in libel — at first sight the
injury done to the individual appears to be the principal
point; but a consideration of the way in which the law deals
with the offence shows that it is otherwise. Thus, proof ofjl
the truth of a libel will not amount to a defence, unless it wasi
for the public benefit that the matter should be published.
MOTS (h).
There are two minor offences, which, as steps to the graver
crime of riot, must first be noticed.
An unlawful assembly is any meeting of three or more
persons for purposes forbidden by law or with intent to carry
out any common purpose, lawful or unlawful, under such
circumstances of alarm, either from the large numbers, or
the mode or time of the assembly, as in the opinion of firm
and rational men- are likely to endanger the peace ; although
no aggressive act may be actually done (i). All parties
joining in and countenancing the proceedings are criminally
liable. It is generally considered that the intention must be
to do something which, if actually executed, would amount
to a riot. But a lawful assembly is not rendered unlawful
by reason of the knowledge of those taking part in it that
Qi) For riotous destruction of buildings, machinery, &c., v. p. 264.
(t) R. V. Vincent, [1839] 9 C. & P. 91.
84 OFFENCES AGAINST THE PUBLIC PEACE,
opposition will be raised to it, which opposition will in all
probability give rise to a breach of the peace by those creating
it(Z-).
A rovt is said to be the disturbance of the peace caused by
those who, after assembling together to do a thing which, if
executed, would amount to a riot, proceed to execute that act,
but do not actually execute it. It differs from a riot only in
the circumstance that the enterprise is not actually executed.
A riot is a tumultuous disturbance of the peace by tJiree
or more persons, assembling together of their oion autJiority.
with an intent mutually to assist one another against any
who shall oppose them in the execution of some enterprise of
a private nature, and afterwards actually executiny the same,
in a violent and turbulent manner, to the terror of the people,
and this whether the act intended be of itself lawful or
unlawful (I).
An example will more clearly show the difference between
these three crimes. A hundred men armed with sticks meet
together at night to consult about the destruction of a fence
which their landlord has erected : this is an unlawful
assembly. They march out together from the place of meeting
in the direction of the fence: this amounts to a rout. They
arrive at the fence, and, amid great confusion, violently pull
it down : this is a riot.
In order to constitute a riot five elements are necessary :
(i) the presence of not less than three persons; (ii) a common
purpose ; (iii) execution or inception of the common purpose ;
(iv) an intent to help one another, by force if necessary,
against anyone who may oppose them in the execution of
the common purpose; (v) force or violence displayed in such
a manner as to alarm at least one person of reasonable firm-
ness. The object must be of a local or private nature:
otherwise, as if to redress a public grievance, it may amount
to treason {m).
ik) Beatty v. Gillbanks, [1882] 9 Q. B. D. 308 ; 51 L. J. M. C. 117.
a) Archbold, 1164.
(m) Field v. Receiver of Metropolitan Police, [1907] 2 K. B. 853; 76 L
K. B. 1015; V. p. 36.
OFFENCES AGAINST THE PUBLIC PEACE. 85
The gist of the offence is the unlawful rnanner of pro-
ceeding, that is, with circumstances of force or violence, or
in such a way as to create terror in the minds of the public.
Therefore, assembling for the purpose of an unlawful object,
and actually executing it, though it might be punishable as
a conspiracy, is not a riot, if it is done peaceably (n).
These three offences are common law misdemeanours,
punishable by fine or imprisonment, or both.
For the case of riots which assume a more formidable
aspect, further provision is made by statute (o). If twelve
or more persons are unlawfully and riotously assembled to
the disturbance of the peace, and being required by proclama-
tion (p), by a justice of the peace, sheriff or under-sheriff,
mayor, or other head officer of a town to disperse, they then
continue together for an hour after, they are guilty of felony,
and liable to penal servitude to the extent of life (q). It is
a felony attended by the same punishment to oppose the
reading of the proclamation : and this opposition will not
excuse those who know that the proclamation would have
been read had it not been for this hindrance (r). Prosecutions
under this Act must be commenced within twelve months
after the commission of the offence (s).
Posse tomitatus .—A course of proceeding founded on an old
statute (t), still unrepealed, is provided for offences of this
character. Any two justices, together with the sheriff or
under-sheriff of the county, may come with the posse
comitatus (i.e., a force consisting of all able-bodied men
except clergymen), and suppress a riot, rout, or unlawful
(n) Archbold, 1165. Clifford v. Brandon, [1810] 2 Camp, at p. 369.
(o) Eiot Act, 1 Geo. I. st. 2, c. 5; and 7 Wm. IV. & 1 Vict. c. 91, s. 1.
(p) "Reading the Riot Act."
(q) 1 Geo. I. st. 2, c. 5, a. 1. The form of proclamation is prescribed by
the statute : " Our sovereign lord the king chargeth and commandeth all persons
being assembled immediately to disperse themselves, and peaceably to depart
to their habitations, or to their lawful business, upon the pains contained in the
Act made in the first year of King George, for preventing tumults and riotous
assemblies — God save the King."
(r) Ibid. a. 5.
(s) Ibid. 8. 8.
it) 13 Hen. IV. c. 7.
86 OFFENCES AGAINST THE PUBLIC PEACE.
assembly ; may arrest the rioters, and make a record of the cir-
cumstances on the spot, which will he sufficient evidence for
the conviction of the offenders. Any battery, wounding, or
killing that may happen in suppressing the riot is justifiable.
The riotous demolishing of buildings, machinery, &c., is
punishable by penal servitude for life under a more recent
statute (u).
AFFRAY.
A fighting between two or more persons in some public
place, to the terror of His Majesty's subjects. If it takes
place in private, it will be an assault. It differs from a riot,
inasmuch as there must be three persons to constitute the
latter. Mere quarrelsome or threatening words do not amount
to an affray.
An affray may be suppressed and the parties separated by
a private person who is present; and a peace officer is bound
to interfere. The offence is a common law misdemeanour,
punishable by fine or imprisonment, or both.
CHALLENGE TO FIGHT.
To. challenge to fight, either by word or letter, or. to be the
bearer of such challenge, or to provoke another to send a
challenge, is a misdemeanour at common law punishable by
fine or imprisonment, or both. It is not necessary that actual
fighting should follow. Provocation, however great, is no
justification (w), though it may mitigate the sentence of the
Court.
SENDING THREATENING LETTERS.
It is obvious that the receipt of a threatening letter is not
unlikely to lead to a breach of the peace on the part of the
receiver. Therefore to prevent such breach, and at the same
time to punish what is an offence against the security of the
(u) 24 & 25 Vicf. c. 97, ss, 11, 12. See post, p. 264.
(w) R. V. Rice, [18031 3 East, 581.
OFFENCES AGAINST THE PUBLIC PEACE. 87
subject, it has been provided that, if any person, knowing
the contents, sends or delivers any letter or writing threaten-
ing to burn or destroy any house, barn, or other building, or
grain or other agricultural produce in a building, or any ship„
or to kill, maim, or wound any cattle, he is guilty of felony,
and may be punished by penal servitude for ten years, and if
a male under sixteen a whipping (x). The same consequences
are attached to sending letters threatening to murder (y).
EXTORTION, ETC.
We may notice here certain other cases of making threats
and sending threatening letters. Every person who (i) utters,
knowing the contents thereof, any letter or writing, demand-
ing of any person with menaces, and without any reasonable
or probable cause, any property or valuable thing or (ii)
utters, knowing the contents thereof, any letter or writing
accusing or threatening to accuse any other person (living or
dead) of certain specified crimes, with intent to extort or gain
thereby any property or valuable thing from any person or
(iii) with intent to extort or gain any property or valuable
thing from any person, accuses or threatens to accuse that
person or any other person (living or dead) of any such crime
is guilty of felony punishable by penal servitude for life, and
if a male under sixteen, by a whipping.
Every person who with intent to defraud or injure any
other person (a) by unlawful violence or restraint of the
person of another or (b) by accusing or threatening to accuse
any person (living or dead) of any such crimes, compels or
induces any person to execute or destroy/ any valuable
security or to affix the name of any person, company, or
firm or the seal of any corporate body upon any paper, etc.,
in order that it may be converted into or used as a valuable
security is guilty of felony punishable by penal servitude for
life.
(x) 24 & 25 Vict. c. 97, s. 50.
(y) 24 & 25 Vict. c. 100, s. 16.
88 OFFENCES AGAINST THE PUBLIC PEACE.
The crimes specified are — any crime punisliable with death
or penal servitude for not less than seven years, or assault
with intent to commit rape, or attempt to commit rape or an
unnatural crime, (z). It is immaterial whether the person
threatened be innocent or guilty of the offence imputed to
him (a).
Every person who with menaces or by force demands of
any person anything capable of being stolen with intent to
steal the same is guilty of felony punishable by penal
servitude for not more than five years (b).
Every person who with intent (a) to extort any valuable
thing from any person or (b) to induce any person to confer
or procure for any person any appointment or office of profit
or trust (1) publishes or threatens to publish any libel upon
any other person (living or dead) or (2) directly or indirectly
threatens to print or publish, or offers to abstain from or
prevent the printing or pviblishing, of any matter touching
any other person (living or dead) is guilty of a misdemeanour
punishable by imprisonment for not more than two years (c).
LIBEL AND INDICTABLE SLANDER.
Offences of this class are rightly considered as affecting the
public peace, inasmuch as their tendency is directly to
provoke breaches of the peace. This will appear from the
definition of a libel.
A libel is a malicious defamation made public either by
printing, writing, signs, pictures, or the like, tending either
to blacken the memory of one who is dead or the reputation
of one who is alive, by exposing him (or his memory) to
public hatred, contempt, or ridicule (d).
In prosecutions for libels vilifying the character of
(2) 6 & 7 Geo. V. c. 50, s. 29.
(a) R. V. Gardner, 1 C. & P. 479.
(b) 6 & 7 Geo. V. c. 50, s. 30.
(c) Ibid. s. 31.
(d) V. Archbold, 1187. This definition refers only to defamatory libels, and
not to those already noticed, of a seditious, blasphemous, or indecent nature
(v. pp. 42, 57). But in all cases of libel the ground of criminal proceedings
is the same, namely. " The public mischief which libels are calculated to create,
in alienating the minds of the people from religion and good morals, rendering
OFFENCES AGAINST THE PUBLIC PEACE. 89
deceased persons, it must be shown tliat tlie intention has
been to bring contempt on the families of the deceased, or
to stir up hatred against them, or to excite them to a breach
of the peace (e). Writings tending to degrade and defame
persons of position in foreign countries at peace with the
King are libellous, as tending to interrupt the pacific
relations between the two countries (/). Writings, though
they do not reflect on the character of any particular
individual, as, for example, on bodies of men, may be
punishable as libels if they tend to a breach of the peace, or
to stir up hatred towards a class generally (^7).
To those who are aggrieved by a libel two courses are
open, either to prosecute the offender criminally by in-
dictment or information, or to seek redress by a civil
action. This is the general rule, but there are cases
where the wrongdoer is criminally punishable, although no
action will lie against him. This is the case when the matter
of the libel is true. It is a clearly established rule that in a
civil action the truth of the matter is a good defence ; whereas
in a criminal proceeding it is not necessarily so. The gist of
the crime is the provocation to a breach of the peace by
exciting feelings of revenge, &c., and the libel is not divested
of this characteristic on account of its being founded on
truth. But by an Act (h), known as Lord Campbell's Act, it
was provided that a defendant indicted for libel might plead
a plea of justification, alleging the truth of the libel, but
the plea must also allege that it was for the public
benefit that it should be published and the particular
fact by reason whereof the publication was for the public
benefit. If the defendant is nevertheless convicted the
Court, in pronouncing sentence, may consider whethei*
the guilt of the defendant has been aggravated or
mitigated by the plea of justification and the evidence which
them hostile to the government and magistracy of the counii-y, and, where
particular individuals are attacked, in causing such irritation in their minds
as may induce them to commit a breach of the public peace." 1 Russ. 597.
(e) R. V. Topham, [1791] 4 T. R. 126. Archbold, p. 1188.
(/) R. V. Peltier, [1803] 28 St. Tr. 530.
(g) R. V. Osborn, [1732] 2 Barn. K. B. 138, 166
ill) 6 & 7 Vict. c. 96, s. 6.
90 OFFEK^CES AGAINST THE PUBLIC PEACE.
has been given in support of it. The question of the truth of
the libel cannot, however, be investigated before a magistrate,
but only on plea at the trial (/), except in the case of news-
paper libels, as to which Parliament has enacted that a Court
of summary jurisdiction, upon the hearing of a charge against
the publisher, &c., of a newspaper, for a libel published
therein, may receive evidence as to the publication being for
the public benefit and as to the truth of the libel, and if the
Court is of opinion, after hearing such evidence, that there is
a probable presumption that a jury would acquit the person
charged, it may dismiss the case {k). And if the Court in
such a case thinks the libel to be one of a trivial character, it
may, with the consent of the defendant, deal with the matter
summarily by fining him a sum not exceeding £50 (I).
As to the form in which the libel is expressed, it will be
none the less an offence because the libellous imputation is
conveyed indirectly — for example, by a hint, question,
exclamation, irony, &c. Even hanging a man in effigy
amounts to libel, as tending to bring him into contempt and
to provoke a breach of the peace. And a mere subterfuge, as
by writing only a letter or two of the name, will not avail
if there be satisfactory evidence as to what person is meant.
The words used are to be taken in the sense ordinarily under-
stood. Where the libellous signification of the words does
not appear on the face of the libel, innuendoes are inserted
in the indictment, and proved by evidence stating the meaning
and intended application of the words.
An indictment may be maintained for words written, for
which, if they were merely spoken, no action would lie without
proof of .•special damage — for example, to write that a man is
a swindler (m,). But a slander, i.e., defamation by words
spoken, even though it may be actionable without proof of
special damage, is not indictable unless it is seditious,
blasphemous, or uttered to a magistrate in the execution of
his duty or tending to provoke a breach of the peace (n).
~ (i) R. V. Garden, [1879] 5 Q. B. D. 1; 49 L. J. M. C. 1.
(fe) 44 & 45 Vict. c. 60, s. 4.
(I) Ibid. s. 6.
(m) I'Anson v. Stuart, [1834] 1 T. E. 748.
(n) Archbold, p. 1187.
OFFENCES AGAINST THE PUBLIC PEACE. 91
As to the 'publication, or making? public of the libel. To
make a writing a libel it must be published, i.e., com-
municated to some person : for the mere writing or composing
of a defamatory paper which is never read or divulged to
others will not amount to a libel. But, on the other hand,
a slight circumstance will be sufficient to constitute a
publication. Thus communication, though only to a
single person, even if he be the person defamed (o), is
a sufficient publication to render the libeller responsible
in a criminal prosecution, even though the libel be
contained in a private letter. It will be remembered that
the gist of the criminal offence is that the libel tends to
provoke a breach of the peace, and the fact that the publica-
tion is to the person libelled would be even more likely to
produce that result than if the publication were to another
person. It is otherwise in civil proceedings, as to render the
defendant liable to damages there must be a publication to
some person other than the party defamed.
The facts to be established on a prosecution for libel are :
(a) The making and publishing of the writing.
(b) That the writing is libellous in its nature.
For a long period it was maintained by Judges and others
that it was the province of the jury to deal with the first
of these questions only, and that the second was to be
determined by the Judge. But the controversy was settled
by Fox's Act (/?), which enacted that the jury may give a
general verdict of Guilty or Not Guilty on the whole matter
in issue, and are not, as formerly, to be required or directed
by the Court to find the defendant guilty if they are satisfied
that the writing was published and bore the meaning ascribed
to it in the indictment. But the Judge may state his opinion
to the jury, though they are not bound to act upon it, and
before he allows the case to go to the jury the Judge must
be satisfied that the terms of the alleged libel are such that
they can bear a defamatory meaning (r),
(o) R. V. Adams, [1888] 22 Q. B. D. 66; 58 L. J. M. C. 1.
(p) 32 Geo. III. c. 60.
{T^ Cavital and Counties Bank v. Henty, [1882] 7 A. C. 741, 744; 52 L. .T,
Q. B. 232.
92 OFFENCES AGAINST THE PUBLIC PEACE.
CriTninal intention is inferred in law from tlie mere fact of
the publication of libellous matter, whicli is in ilself an
unlawful act (s). Accordinglj-, even when the older and more
strict forms of indictments were used, it was unnecessary to
allege that the publication was "malicious " (i). The burden
of rebutting this inference lies therefore upon the accused
person, who may prove circumstances which rendered the
publication lawful. But in answer to this the prosecution
may, in some cases, show that the publication was not in fact
for any lawful purpose, but was actuated by ea:press 7nalice
or malice in fact — that is to say, by ill-will or any other
improper motive (u).
The accused person may, as we have seen, set up the special
plea of justification, which must be in writing. But he may
also, under the plea of "not guilty," prove (1) that the
publication was accidental; (2) that the matter complained of
was fair comment on a matter of public interest; (3) that the
publication was upon a privileged occasion.
1. It is a defence that the publication was accidental or
made without the authority or knowledge of the defendant (w).
Thus where the defendant is not the first publisher, but, as
in the case of a bookseller, merely takes a subordinate part
in disseminating a libel, he can escape liability by proving
that he did not know of the libel and that his ignorance
was not due to negligence (a;). It has been provided by
statute (y), that whenever upon the trial of any indictment
or information for libel evidence has been given which
establishes a presumptive case of publication against the de-
fendant by the act of any person by his authority, the
defendant may prove that the publication was without his
knowledge, consent, or authority and did not arise from want
of care on* his part. It should be noted that no criminal
prosecution can be commenced against any proprietor,
is) Bromage v. Prosser, 4 B. & C. 247. See ante, p. 11.
(t) R. V. Munslow, [1895] 1 Q. B. 761; 64 L. J. M. C. 138.
(u) Archbold, pp. 1191, 1192.
(to) R. V. Munslow. supra,
(x) Emmens v. Pottle, 16 Q. B. D. 354.
(v) 6 & 7 Vict. c. 96, s. 7.
OFFENCES AGAINST THE PUBLIC PEACE. 93
publisher, editor, or person responsible for the publication of
a newspaper for any libel published therein without the order
of a Judge in chambers, and the person accused must have
notice of the application and opportunity of being heard
against it (z).
2. It is a defence that the matter complained of was " fair
comment"; that is to say, that (i) it related to a matter of
public interest and concern, such as the administration of
public affairs or institutions, or public performances, or
literary works (a), and (ii) that it was pure criticism, i.e., an
expression of opinion upon existing facts and not allegation
of facts (6), and (iii) that it was bona-fide criticism, i.e., an
opinion honestly held and expressed in the language of a fair
man; the mere fact that the opinion is wrong will not destroy
the defence, but, on the other hand, proof of malice in fact
'* may take a criticism prima-facie fair outside the right of
fair comment " (c).
•3. It is a question for the Judge whether an occasion is
privileged so as to prevent the publication of a libel from
being punishable. Privilege may be absolute or qnalifled.
In the latter case the privilege is lost if the prosecutor can
show that the defendant was not honestly availing himself
of the priA'ilege but was actuated by express malice.
Absolute 'privilege exists for (a) judicial proceedings,
Parliamentary Debates and Acts of State [d) ; (b) reports
])ublished by order of Parliament (e) ; (c) fair and accurate
newspaper reports of judicial proceedings, if published con-
temporaneously (/).
Qualified privilege exists for (a) fair alid accurate reports
of proceedings in Parliament (g), in Courts of Justice (h) and
iz) 51 & 52 Vict. c. 64, s. 8.
(a) Merivale v. Carson, 20 Q. B. D. 275.
(b) Davis v. Shepstone, 11 A. C. 187 ; 55 L. J. P. C. 51.
(c) Thomas v. Bradbury, Agnew d Co., [1906] 2 K. B. at p. 640.
(d) See Chatterton v. Secretary of State for India, [1895] 1 Q. .B. 191
(e) 3 & 4 Vict. c. 9, ss. 1, 2.
(/) 51 & 52 Vict. c. 64, s. 3.
(g) Wasov v. Walter, L. E 4 Q. B. 73.
(h) Archboia.p. 1193.
94 OFFENCES AGAINST THE PUBLIC PEACE.
public meetings of vestries, town councils, and similar bodies
to -which the public and newspaper reporters are admitted (i) ;
(b) statements published (i), in discharge of a legal, moral,
or social duty, such as characters given to servants (k) or
(ii) in self-defence (/), or (iii) by reason of a common interest
with the person to whom the communication is made (m).
Libel is a misdemeanour, punishable in the case of one who
publishes a defamatory libel, knowing it to be false, by
imprisonment not exceeding two years, and fine (n). But if
the prosecution do not prove that the defendant knew it to be
false, the punishment is fine or imprisonment not exceeding
one year, or both (o).
Libel is one of the offences to which the Vexatious Indict-
ments Act applies (p).
In cases of private prosecutions for libel, if the defendant
is acquitted the Court may order the prosecutor to pay the
whole or any part of the costs incurred in the defence {q).
The law as to criminal proceedings for libel by husband or
wife against the other is not altered by the Married Women's
Property Act, 1882 (r), which enables criminal proceedings
to be taken by a wife against her husband, and vice versa, for
the protection and security of the wife's separate estate or
the husband's property. A prosecution for libel is not for
the protection and security of such property, and therefore
a wife cannot prosecute her husband or give evidence against
him upon a prosecution for a personal libel upon herself (s).
(t) 51 & 52 Vict. c. 64, s. 4. The privilege is lost if the defendant has,
after request, refused or neglected to insert in the same paper a reasonable
statement contradicting or explaining the report.
(k) Child V. Afleck, 9 B. & C. 408.
(l) Coward v. Wallington, 7 C. & P.
(m) Hunt V. Great Northern Rjilway Co. [1891] 2 Q. B. 189; 60 L. J.
Q. B. 498.
(n) 6 & 7 Vict. c. 96, s. 4.
(o) 6 & 7 Vict. c. 96, s. 5; v. Boaler v. The Queen, [1888] 21 Q. B. D. 284;
57 L. J. M. C. 85.
(p) V. p. 330-
iq) 8 Ed. VII. c. 15, s. 6, sub-s. 2.
(r) Ee-enacted bv the Larceny Act, 1916, v. p. 203.
c.s) R. V. The Lord Mayor of London, [1886] 16 Q. B. D. 772; 55 L. J. M. C.
118.
OFFENCES AGAINST THE PJJBLIC PEACE. 95
FOECIBLE ENTRY OH DETAINEE.
Forcible entry is the violent taking, forcible detainer is
the violent keeping possession of lands and tenements with
menaces, force, and arms and without the authority of the
law. It is no defence to a charge of forcible entry that the
accused has been unjustly turned out of possession (t), inas-
much as he has his remedy at law, and the fact of his right
does not diminish the breach of the peace. If there be not
employed such force or menaces as are calculated to prevent
resistance, it is a mere trespass (u).
The offence is a misdemeanour, punishable by fine and
imprisonment. The Court may by a writ of restitution
summarily restore possession to the person entitled, unless
the defendant has been permitted to remain quietly in
possession for three years previously to the finding of the
indictment (w).
it) 5 Rich. II. c. 8; V. Archbold, p.
(u) R. V. Smyth, [1832] 5 C. & P. 201. See also Lore/! v. Telford. [1876'l
1 A. C. 414; 45 L. J. Ex. 613; Milner v. Maclean, [1825"^ 2 C. & P. 17;
R. V. Child, [1846] 2 Cox. C. C. 102; Edwick v. H awes, 11881'] 18 Ch. D. 199.
(w) V. 31 Eliz. c. 11 ; 21 Jac. I. c. 15.
CHAPTER YI.
OFFENCES AGAINST PUBLIC TRADE.
SMUGGLING.
Smuggling is the importing or exporting either (a) goods
without paying the legal duties thereon, or (b) prohibited
goods. The existing law on the subject is contained chiefly
in the Customs Consolidation Act, 1876 (a).
The statute subjects to forfeiture the goods which have in
any way been the subjects of smuggling practices. Persons
taking goods out of a warehouse without paying the duties
are declared to be guilty of a misdemeanour (h).
Shooting at vessels belonging to the navy or revenue
service, or shooting at or wounding an officer engaged in
the prevention of smuggling, is declared to be a felony
punishable by penal servitude for not less than three years (c).
To procure persons to assemble for the purpose of
smuggling is punishable by imprisonment for twelve months;
and if any person so offending be armed or disguised, or being
so armed or disguised be found with any goods liable to
forfeiture within five miles of the sea coast or of any
navigable river, he is punishable by imprisonment with hard
labour to the extent of three years (d). To assemble (to the
number of three or more persons) for the purpose of
smuggling is punishable by a penalty of not less than £100
or more than £500 (e).
(a) 39 & 40 Vict. c. oG. ib) Ibid. s. 85.
(c) Ibid. s. 193. (d) Ibid. s. 189.
(ci 42 & 43 Vict. c. 21, s. 10.
OFFENCES AGAINST PUBLIC TKADE* 97
Making signals at night to smuggling vessels is a mis-
demeanour punishable by a fine of £100, or imprisonment not
exceeding one year (/).
All proceedings for offences against Acts relating to the
Customs must be commenced within three years after the
date of the offence [g).
OFFENCES AGAINST THE BANKRUPTCY LAWS.
The Bankruptcy Act, 1914 [h), enumerates several acts
which, if done by a person adjudged bankrupt or in respect
of whose estate a receiving order in bankruptcy has been
made, are misdemeanours punishable by imprisonment for
two years. It will be observed that under the last-mentioned
Act the onus of proving the absence of the intent to defraud
or, as the case may be, to conceal the state of his affairs, or
to defeat the law, is in several instances thrown upon the
accused, and that in such cases it is not necessary for the
prosecution to allege in the indictment or to prove any such
intent. The acts referred to are briefly as follows :
(i) Not to the best of his belief making full discovery of
his estate to the administering trustee and how he has
disposed of any part thereof, unless he proves that he had
no intent to defraud.
(ii) Neglecting to deliver up to the trustee property under
his control which he is required by law to deliver up, unless
he proves that he had no intent to defraud.
(iii) Neglecting to deliver up books, papers, &c., under
his control to the trustee, unless he proves that he had no
intent to defraud.
(iv) After, or within six months before, the presentation
of the bankruptcy petition, concealing property to the value
of £10, or any debt dire to or from him, unless he proves
that he had no intent to defraud.
(f) 39 & 40 Vict. c. 36, s. 190.
(g) Ibid. s. 257.
C/i) 4 & 5 Geo. V. c. 59, s. 154. re-enacting section 11 of the Debtors Act,
1869 (32 & 33 Vict. c. 62) as amended by the Bankruptcy Act, 1890, s. 26.
c.L. r
98 OFFENCES AGAINST PUBLIC TRADE.
(v) Witliin the same time fraudulently removing any part
of his property to the value of £10.
(vi) Making any material omission in any statement
relating to his affairs, unless he proves that he had no intent
to defraud.
(vii) Failing for a month to inform the trustee of any false
debt which he knows or believes to have been proved.
(viii) After the presentation of a petition, preventing the
production of any book, document, or paper relating to his
affairs, unless he proves that he had no intent to conceal the
state of his affairs or to defeat the law.
(ix) After the presentation of a petition or within six
months (^) before concealing, mutilating, or falsifying any
such document, unless he proves that he had no intent to
conceal the state of his affairs or to defeat the law.
(x) Within the same limits of time (i) making a false entry
in any such document unless he proves that he had no intent
to conceal the state of his affairs or to defeat the law.
(xi) Within the same limits of time (i) fraudulently
parting with, altering, or making omissions in any such
document.
(xii) After the presentation of a bankruptcy petition, or
a,t any meeting of his creditors witliin sia: months before
such presentation, attempting to account for any part of his
property by fictitious losses or expenses.
(xjiii) Within si,v months before the presentation of the
bankruptcy petition, or before the date of a receiving order
made under s. 107 of the Act (k), or after the presentation
of a petition and before the making of a receiving order,
obtaining property on credit which he has not paid for.
(xiv) Within the same (last mentioned) time obtaining
under the false pretence of carrying on business and, if a
trader, of dealing in the ordinary Tvay of his trade, any
(i) Or (in the case of books of account) Uoo years prior to the presentation of
the petition if the bankrupt has been engaged in any trade or business and the
books which have been fraudulently destroyed, falsified, or dealt with are such
books as were necessary to explain his transactions and financial position as
mentioned on p. 99. Section 158, 4.
(k) i.e.. a receiving order made against a judgment debtor in lieu of committal.
OFFENCES AGAINST TUBLIC TRADE. 99
property on credit which he has not paid for, unless he proves
that he had no intent to defraud.
(xv) Within the same (last mentioned) time pledging or
disposing of any property which he has obtained on credit
and has not paid for, unless, in the case of a trader, such
pledging or disposing is in the ordinary way of his trade, and
unless in any case he proves that he had no intent to defraud.
(xvi) If he is guilty of any false representation or other
fraud for the purpose of obtaining the consent of any of his
creditors to an agreement with reference to his affairs or to
his bankruptcy.
A person who has on any previous occasion been adjudged
bankrupt or made a composition or arrangement with his
creditors and who is again adjudged bankrupt or against^
whom a receiving order is made will be guilty of a mis-
demeanour punishable by two years' imprisonment if, having
during the whole or part of the two years next before the
presentation of the bankruptcy petition been engaged in any
trade or business, he has not kept proper books of account or
has not preserved all books of account so kept, unless his
unsecured liabilities at the date of the receiving order do not
exceed £100 or if he pi'oves that in the circumstances the
omission was honest and excusable. The books of account
required to be kept are such as are necessary to exhibit his
transactions and financial position in his business, including
a book containing detailed entries from day to day of all cash
received and paid {i.e., a cash book) and, wheio he has dealt in
goods, accounts of all goods sold and purchased, and state-
ments of annual stocktakings. There can be no prosecution
for this offence without an order of the Court, nor where the
receiving order is made within two years from the 1st April
1914 (/).
So also it will be a misdemeanour punishable in the same
way (7/1), where a receiving order is made after the l.^t April
(I) i & 5 Geo. V. c. 59, s. 158. It will be observed therefore that this offence
cannot be committed in the case of any bankruptcy the receiving order in which
has been made prior to the 1st April, 1916.
(m) Ibid. s. 157. The leave of the Court will be required for a prosecution
for this offence.
100 OFFENCES AGAliNST PUBLIC TRADE.
1916 against a person who, having been engaged in any
business and having at the date of the receiving order any
unpaid debts contracted in the course of such business, has : —
(a) Within two years prior to the presentation of the
petition or the date of a receiving order made under s. 107
of the Act, materially contributed to the extent of his
insolvency by gambling or by rash and hazardous specula-
tions, such gambling or speculations being unconnected with
his business; or
(6) Has between the dates of the presentation of the
petition and the receiving order lost any part of his estate
by such gambling or speculations; or
(c) Fails to give a satisfactory account for the loss of any
substantial part of his estate incurred within a year before
the presentation of the petition.
It is also a misdemeanour punishable in the same way for
an undischarged bankrupt (i) either alone or jointly with
any other person, to obtain credit to the extent of £10 from
any person without informing him that he is an undischarged
bankrupt; (ii) to engage in any trade or business under a
name other than that under which he was adjudicated
bankrupt without disclosing to all persons with whom he
enters into any business transaction the name under which
he was adjudicated bankrupt (n).
One offence is a felony, punishable in the same way by
imprisonment not exceeding two years; namely, if any person
who is adjudged bankrupt or in respect of whose estate a
receiving order has been made, after the presentation of the
bankruptcy petition or within six months before, absconds
from England and takes with him, or attempts or j^^t^pci/res to
abscond and take with him, property to the value of £20,
which ought by law to be divided amongst his creditors (o).
in) Ibid. s. 155. In order to constitute the first of the offences under this
section it is not necessary to show that the defendant had any intention to
defraud (E. v. Dyson, [1894] 2 Q. B. 176; 63 L. J. M. C. 124), nor that he
expressly stipulated for credit if in fact he obtained it (R. v. Peters, [1886]
16 Q. B. D. 636).
(o) Ibid s. 159, replacing section 12 of the Debtors Act, 1869.
OFFENCES AGAINST PUBLIC TKADE. ^ 101
Certain other offences are misdemeanours, punishable by
imprisonment not exceeding one year (p) :
For any person (whether he become bankrupt or not) :
(i) In incurring a debt or liability, to obtain credit under
false pretences, or by means of any other fraud. For
instance, a man may be convicted of this offence who orders
food at a restaurant knowing that he has not the money to
pay for it, as he must have been aware that the custom of
such establishment is that refreshments shall be paid for
before the customer leaves (r).
(ii) With intent to defraud any creditor, to make any gift,
delivery, or transfer of, or any charge on, his property.
(iii) With intent to defraud his creditors, to conceal or
remove any part of his property since, or within two months
before, the date of any unsatisfied judgment or order for
money obtained against him.
It is also a misdemeanour, punishable by imprison-
ment not exceeding one year, for a creditor wilfully and
fraudulently to make a false claim in a bankruptcy (s).
All these misdemeanours fall within the provisions of the
Vexatious Indictments Act {t).
All the above-mentioned offences under the Bankruptcy
Act, 1914, including the felony under s. 159, are also
summarily punishable by imprisonment not exceeding six
months. But summary proceedings cannot be instituted after
one year from the first discovery of the offence either by
the Official Receiver or the trustee of the bankruptcy, or, if
the proceedings are instituted by a creditor, then by that
creditor, nor in any case can they be commenced after three
years from the commission of the offence (?/).
If a trustee in bankruptcy or an official receiA^er report to
the Bankruptcy Court that a bankrupt or debtor has been
(p) Debtors Act, 1869 (32 k 33 Vict. c. 62), s. 13. This section is reproduced
by section 156 of the Bankruptcy Act, 1914, which, however, applies only to a
person who has been adjudged bankrupt or against whom a receiving order has
been made. In view of the wider language of the Debtors Act, section 15(3 of
the Act of 1914 seems superfluous; v. Archbold, p. 1198.
(r) J? V. Jones, [1898] 1 Q. B. 119; 67 L. J. Q. B. 41.
(s) 4 & 5 Geo. V. c. 59, s. 160, replacing section 14 of the Debtors Act, 1869.
(t) Ihid. s. 164 ; v. p. 330.
(u) Ihii. s. 164.
102 OFFENCES AGAINST PUBLIC TRADE.
guilty of an offence under the Debtors Act, or under tlie
Bankruptcy Act, 1914, or if the Court is satisfied upon the
representation of any creditor that there is ground to believe
that the bankrupt or debtor has been guilty of such offence,
the Court shall, if tjiere be a reasonable probability of con-
viction, and if it thinks that the circumstances are such as to
render a prosecution desirable, order a prosecution (w).
COUNTERFEITING TRADE-MARKS AND APPLYING FALSE
TRADE DESCRIPTIONS.
This subject seems peculiarly to fall within a chapter
dealing with offences against trade, though it would also find
a place under the heading " Forgery." The law as to offences
relating to trade-marks is contained in the Merchandise
Marks Act, 1887 (a;). By this Act every person who (1)
forges any trade-mark; or (2) falsely applies to goods any
mark so nearly resembling a trade-mark as to be calculated
to deceive; or (3) makes any die, machine, or instrument for
the purpose of forging a trade-mark; or (4) applies any false
trade description to goods; or (5) disposes of or has in his
possession any die, &c., for the purpose of forging a trade-
mark; shall, unless he proves that he acted without intent
to defraud (y), be guilty of an offence against the Act (z).
Further, every person who sells or has in his possession for
sale, or any purpose of trade or manufacture, any goods to
which any forged trade-mark or false trade description is
applied, shall, unless he proves (1) that having taken all
reasonable precautions he had no reason to suspect the
genuineness of the trade-mark or trade description; and (2)
(«?) Ibid. s. 161, re-enacting section 16 of the Debtors Act, 1869, as amended
by the Bankruptcy Act, 1883.
(x) 50 & 61 Vict. c. 28.
iy) The " fraud " here referred to has been held to mean the putting off on a
purchaser, not necessarily a bad article, or one of less value, but one different
from that which he has stipulated to buy. Starey v. Chilworth Powder Co.,
[1889] 24 Q. B. D. 90; 59 L. J. M. C. 13.
(z) 50 & 51 Vict. c. 28, s. 2, sub-s. 1.
OFFENCES AGAINST PUBLIC TRADE. 103
that, on demand made by the prosecutgr, he gave all the
information in his power with respect to the person from
whom he obtained such goods; or (3) that he had otherwise
acted innocently, be guilty of an offence against the Act (a).
Every person guilty of an offence against the Act is liable
(1) on conviction on indictment to imprisonment, with or
without hard labour, for two years, or to a fine; (2) on>
summary conviction, to imprisonment, with or without hard
labour, for four months, or to a fine of £20, and, in the case-
of a second conviction, to imprisonment for six months, or
to a fine of £50; (3) in any case, to forfeit any article by
means of which the offence has been committed (6). The
expression " trade description," as used in this* Act, means
any statement as to the number, quantity, measure, gauge, or
weight of any goods; or the place in which they were made
or the mode of their manufacture; or the material of which
they are composed; or as to the goods being the subject of
an existing patent, privilege, or copyright (c). The Act
exempts from punishment a person who makes dies, &c., for
others, or applies marks to the goods of others, in the ordinary
course of his business, provided he has acted in good faith
and has taken proper precautions, and that when required
to do so he gives the injured person all the information in
his power (d). No proceedings are to be taken under the Act
after three years from the offence, or after one year from its
discovery (e).
Forging an entry in the trade-mark register or knowingly
making or using in evidence a forged copy of an entry in the
register is a misdemeanour (/).
The piracy of a registered design is punishable by a
penalty of £50 recoverable by the registered proprietor (g).
(a) Ibid. s. 2, sub-s. 2.
(b) 50 & 51 Vict. c. 28, s. 2, sub-s. 3.
(c) Ibid. 8. 3, sub-s. 1.
<d) Ibid. 8. 6.
(e) Ibid. s. 15.
(f) 5 Edw. VII. c. 15, s. 66.
(g) 7 Edw. VII. c. 29, s. 60.
104 OFFENCES AGAINST PUBLIC TllADE.
UNLAWFUL INTERFERENCE WITH TRADE BY COMBINATIONS, ETC.
It is perfectly legal for workmen to protect their interests
by meeting or combining together, or forming nnions, in
order to determine and stipulate with their employers the
terms on which only they will consent to work for them.
But this right to combine must not be allowed to interfere
with the right of those workmen who desire to keep aloof
from the combination to dispose of their labour with perfect
freedom as they think fit. Nor must it interfere with the
right of the masters to have contracts of service duly carried
•out. Infraction of such rights will bring the wrongdoers
"within the pale of the criminal law of conspiracy.
The law on this subject is principally contained in the
Conspiracy and Protection of Property Act, 1875 (h). It will
be well to prefix a provision of the Trade Union Act, 1871 (t).
The purposes of any trade union shall not, by reason merely
that they are in restraint of trade, be deemed to be unlawful
so as to render any member of such trade union liable to
criminal prosecution for conspiracy or otherwise.
The following acts are forbidden, and are punishable on
summary conviction or indictment, by imprisonment not
exceeding three months, or penalty not exceeding £20.
(i) For any (k) person, with a view to compel any other
person to abstain from doing, or to do, any act (l) which
such other person has a legal right to do or abstain from
doing — to wrongfully and without authority,
(a) Use violence to, to intimidate (m), such other person,
or his wife, or children, or injure his property (w) ;
(h) 38 & 39 Vict. c. 86, s. 7, repealing 34 & 35 Vict. c. 32, and other Acts.
(i) 34 & 35 Vict. c. 31, s. 2.
(k) This word makes the law of general application, and not restricted to trade
disputes, though practically the offence most frequently occurs in connection
therewith. The act of one person is sufficient to constitute an offence, and it is
not necessary that there should be any crowd or combination. Smith v.
T/iomassorj, [1890] 16 Cox, 740.
(l) The particular act must be specified in the summons and conviction. R.
V. McKenzie, [1892] 2 Q. B. 519; 61 L. J. M. C. 181; and see note (n) below.
(m) It has been held that the meaning of the word " intimidate " must be
limited to threats of personal violence, v. Curran v. Treleaven, [1891] 2 Q. B.
at p. 5.
(n) The particular property injured must be specified in the summons and
conviction. Smith v. Moody, [1903] 1 K. B. 56; 72 L. J. K. B. 43.
OFFEKCES AGAINST PUBLIC TIIADE. 105
(b) Persistently follow liim about from place to place;
(e) Hide his tools, clothes, or other property, or hinder him
in the use thereof;
(d) Watch or beset his house, or other place where he
resides, or works, or carries on business (commonly
known as " picketing "), unless the purpose be to
peacefully obtain or communicate information or to
peacefully persuade any person to abstain from
working (o) ;
(e) Follow him, with two or more other persons, in a
disorderly manner in or through any street or road.
(ii) For a person employed by the municipal authorities,
public companies, contractors, or others who have undertaken
to supply gas or water, either alone or with others wilfully
and maliciously to break his contract of service, knowing
or having reasonable cause to believe that the probable
consequence will be to deprive the inhabitants wholly or to
a great extent of gas or water (p).
(iii) For a person wilfully and maliciously to break his
contract of service, knowing, or having reason to believe, that
the probable consequence will be to endanger human life,
or cause serious bodily injury, or expose valuable property
to destruction or serious injury (q).
Upon a prosecution for any of the above offences, the
offender may elect to have the case tried on indictment, and
not by a Court of summary jurisdiction (r).
Trade disputes now form an exception to the general law
of conspiracy in one respect. If, in connection with a trade
dispute, two or more persons combine to do something which
if done by one is not punishable as a crime, they will not, on
account of their number, be indictable for the conspiracy at
common law (s).
(o) 6 Edw. A^II. c. 47, s. 2.
(p) 38 & 39 Vict. c. 86, s. 4.
(q) Ibid. s. 5.
(r) Ibid. s. 9.
Is) 38 & 39 Vict. c. 86, s. 3; nor is it even actionable, 6 Edw. VII. c. 47, s. 1.
CHAPTER VII.
CONSPIRACY.
Conspiracy consists in the agreement of two or more persons
to do an unlawful act or to do a lawful act by unlawful
means. So long as such a design rests in the intention of
one person only it is not indictable, but when two persons
agree to carry it into effect the very plot is an act in itself
which is punishable by the law (t).
The offence of conspiracy may be classed under three
heads : first, where the end to be attained is in itself a crime ;
second, where the object is lawful, though the means to be
resorted to are unlawful; third, where the object is to do
an injury to a third party, or a class, though, if the wrong
were inflicted by a single individual, it might be a ci\il
wrong and not a crime (w).
The gist of the offence is the coTnhination. Of this offence
a single person cannot be convicted, unless, indeed, he is
indicted with others who are dead or unknown to the jurors
or are not in custody {w) ; and where two persons are indicted
together for conspiracy both must be convicted or both
acquitted [x). Even if one of the accused pleads guilty he
must be discharged if his co-defendant be acquitted [y).
And, on the same ground, man and wife cannot by themselves
be convicted, for they are one person. An agreement by two
or more persons to do certain acts may be criminal, although
those acts, if done by one person, might not expose him to
it) R. V. Brailsford, [1905] 2 K. B. at p. 746; 75 L. J. K. B. 730.
(«) R. V. Parnell, [1881] 14 Cox. 508.
(w) R. V. Kinnersley, [1719] 1 Str. 193; Beechey v. R., 85 L. J. P. C. 32.
{x) R. V. Manning, [1883] 12 Q. B. D. 241; 53 L. J. M. C. 85.
iy) R. V. Plummer, [19a2] 2 K. B. 339; 71 L. J. K. B. 805.
CONSPIRACY.
107
any punishment whatever. For instance, buying goods
without intending to pay for them is not in itself a crime (z),
but an agreement between two or more persons to assist each
other in doing so would amount to a conspiracy (a). We have
just remarked that the gist of the offence is the agreement;
a mere intention will not suffice to constitute the crime (6).
But if the agreement (the conspiracy itself) can be proved,
there is no need to prove that anything has been done in
pursuance of it. Of course, the existence of the unlawful
agreement is generally evidenced by some overt acts, but
these are evidence merely, and not essential if the agreement
can be proved otherwise (c).
The definition shows a conspiracy to be an agreement to
do an unlawful act. It is the indefinite meaning of this
word " unlawful " that gives to the crime of conspiracy its
wide extent. The following are the most important classes
of conspiracy : — •
(1) When the end to be accomplished would be a crirne in
each of the conspiring parties; in other words, a conspiracy
to commit a crime {d). The case of murder is specially
provided for by statute, the persons conspiring being liable
to penal servitude to the extent of ten years (e). And by the
same statute one who solicits, encourages, persuades, or
endeavours to persuade, or proposes to any person to murder
any other person, is liable to the same punishment (/). Such
an offence may be committed by the publication of an article
in a newspaper, although not specifically addressed to any
one person {g). To constitute a solicitation or persuasion'
there must be some communication to the person said to have
been solicited, but it is not necessary to show that the mind
of such person was affected. Even if the communication
(2) AsBuming, of course, that there is no false representation made. See,
however, p. 236 as to certain cases of this kind,
(a) R. V. Orman, [1880] 14 Cox, 381.
(h) Mulcahy v. R., [1868] L. E. 3 H. L. at p. 317.
(c) R. V. Gill, [1818] 2 B. & Aid. 204.
(d) V. Archbold, 1350.
(e) 24 & 25 Vict. c. 100, s. 4. I
(/) Ibid.
ig) R. V. Most, [1881] 7 Q. B. D. 244: 50 L. J. M. C. 113.
108
CONSPIRACY.
cannot be proved to have readied that person the prisoner
may be convicted of the common law misdemeanour of
attempting to commit the statutory oiJ'ence [h).
(2) Where, with a malicious design to do an injury, the
purpose of the conspiracy is to effect a wrong (?), though not
such a wrong as, when perpetrated by a single individual,
would amount to an offence against the criminal law. Wo
may distinguish the following cases :
(i) Conspiracies to obstruct, prevent, or defeat the course
of public justice, as, e.g., a conspiracy to charge a man falsely
with any crime (A-) ; or conspiracies to do anything which will
cause a public mischief, as, for instance, to obtain passports
by false pretences {I).
(ii) Conspiracies to cheat and defraud, as, for example,
where one of two partners conspires with a third person to
cheat his partner out of partnership property in a manner
which would not amount to a criminal offence (m).
(iii) Conspiracies to injure a man in his civil rights other-
wise than by fraud, as, e.g., a conspiracy to make pirated
music for sale and so to deprive the owner of his copy-
right (n) or a conspiracy to injure a man in his trade by
unlawful means (o).
It should be noted that the basis of a civil action for
conspiracy is damage caused by an unlawful act. The acts
of several persons in combination may be unlawful where
similar acts by one person could not be; several persons, for
instance, may coerce and intimidate where one alone could
not do so. Acts causing damage and done in pursuance of a
conspiracy may therefore be actionable and also indict-
able, although, if done by one person, they would not
even be actionable (p). But even when damage has resulted
ih) B. V. Krause, [1902] 66 J. P. 121.
(i) R. V. Warburton, [1870] L. E. 1 C. C. E. 274; 40 L. J. M. C. 22 ; 11 Cox
C. C. 684; R. v. Aspinall, [1876] 2 Q. B. D. at p. 59.
(k) Archbold, 1354.
H) R. V. Brailsford, [1905] 2 K. B. 730; see also R. v. Porter, [1910] 1 K. B.
369; 3 Cr. App. E. 237.
(m) R. V. Warburton, L. E. 1 C. C. R. 274; 40 L. J. M. C. 22.
(n) R.\. Willetts, 70 J. P. 127.
(o) R. V. Rowlands, 17 Q. B. 671.
ip) Quinn v. Leatham, [1901] A. C. 495.
CONSPIliACY. 109
from the acts of a combination, no action will lie unless there
has been some unlawful act. Damage resulting from the
exercise of legal rights will not be ground for an action
merely because their exercise was due to express malice [q).
We have already noticed the case of trade conspiracies and
referred to an exception to the common law doctrine in such
matters (?■).
Conspiracy is a misdemeanour, punishable by fine or
imprisonment, or both; in the case of conspiracy to murder
by penal servitude to the extent of ten years (5). This
crime falls within the provisions of the Vexatious Indictments
Act (t).
It should be noticed that the acts and statements of any
of the conspirators in furtherance of the common design may
be given in evidence against the others, although they were
not present at the time when such acts were done or words
spoken. But before this can be done evidence of 'the existence
of the conspiracy must first be given (w).
If the purpose of the conspiracy is a felonious one and
actually carried out, the conspiracy is merged in the felony;
so that after a conviction for the felony the defendant cannot
be tried for the conspiracy. But if the defendant is indicted
for the conspiracy, he is not entitled to an acquittal because
the facts show a felony. Under such circumstances, however,
he cannot be subsequently tried for the felony unless the
Court has discharged the jury from giving a verdict on the
misdemeanoiir (w).
(q) Allen v. Flood, [1898] A. C. 1.
(r) V. p. 105.
(s) supra, p. 107.
(t) V. p. 330.
(M) Archbold, 1.359.
(w) 14 & 15 Vict. c. 100, s. 12.
CHAPTER VIII.
OFFENCES AGAINST PUBLIC MORALS, HEALTH, AND GOOD ORDER.
Under this head will be noticed a somewhat miscellaneous
class of offences which are considered to affect the public
rather than the individual ; though some of them at first sight
appear rather to concern particular persons, e.g., bigamy.
They are, however, punishable not upon the mere ground
of the immorality of the offender, but in order to prevent the
injury to public morality which would result if their com-
mission were unchecked.
BIGAMY.
The offence consists in marrying a second time while the
defendant has a former husband or wife still living [x).
The second marriage is void, and constitutes a felony J
and this whether the second marriage takes place in the
United Kingdom or elsewhere, either within or without the
King's dominions [y). There are certain cases which are
excepted by the statute which declares the second marriage
generally felonious ; these excepted cases are : —
(i) A second marriage contracted elsewhere than in
England or Ireland by any other than one of His Majesty's
subjects [z).
(ii) A second marriage by one whose husband or wife has
been continually absent from such person for the last seven
years, and has not been known by such person to be living
(x) 24 & 25 Vict. c. 100, s. 57.
iy) R. V. Russell, [1901] A. C. 446; 70 L. J. K. B.
(z) 24 & 25 Vict. c. 100, s. 57.
OFFENCES AGAINST PUBLIC MORALS, ETC. Ill
within that time (a). Where absence for seven years is
proved it is for the prosecution to show that the prisoner knew
that his or her wife or husband was alive, and failing proof of
such knowledge he is entitled to be acquitted (6).
(iii) A second marriage by one who, at the time of such
second marriage, was divorced from the bond of the first
marriage.
(iv) A second marriage by a person whose former marriage
has been declared void by the sentence of any Court of
competent jurisdiction, as, for instance, in a suit for nullity
of marriage (c).
In none of these cases is the second marriage a felony;
but in the second case it is a mere nullity.
It is no defence to the charge of bigamy that the subsequent
marriage would in any case have been void, as for con-
sanguinity or the like (d). But if the first marriage were
void, the second will not be bigamous (e). There was at
one time much conflict of judicial opinion as to whether a
hona-fide belief by a prisoner at the time of the second
marriage that her husband was then dead, such belief being
based on reasonable grounds, was a sufficient defence although
the period of seven years mentioned in the statute had not
expired. In consequence of this conflict of opinion, Mr.
Justice Stephen, who tried a prisoner on this charge, stated
a case for the opinion of the Court for Crown Cases Reserved,
after directing the jury that a belief in good faith and on
reasonable grounds by the prisoner that her husband was
dead was no defence. In this case the husband had not been
heard of for five years preceding the second marriage, but
reappeared shortly after it. The jury convicted the prisoner,
stating, however, 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 Court was divided in
opinion, but the majority of the judges decided, and it is
(fl) 24 & 25 Vict. c. 100, s. 57.
(d) R. V. Curgerwen, [1865] L. E. 1 C. C. E. 1; 35 L. J. M. C. 58.
(c) 24 & 25 Vict. c. 100. s. 57.
(d) R. V. Allen, [1872] L. E. 1 C. C. E. 367; 41 L. J. M. C. 101.
(e) Archbold, 1244.
112 OFFENCES AGAINST PUBLIC MOEALS,
now settled law, that if in sucli a case tlie jury are satisfied
of tlie prisoner's bona fides, and tliat she had reasonable
grounds to believe that her husband was dead, she is entitled
to an acquittal (/).
Both the first [i.e., the real) and the second (so-called)
wife or husband are competent witnesses. Formerly the first
wife or husband was not a competent witness for the
prosecution, but by the Criminal Justice Administration
Act, 1914 {g) she (or he) may be called as a witness either
for the prosecution or for the defence and without the consent
of the person charged. The effect of this Act is, apparently,
to make the first wife or husband a competent but not com-
peUable witness (h).
This felony is punishable by penal servitude to the extent
of seven years (i). The person who goes through the form
of marriage with the bigamist, knowing him or her to be such,
does not altogether escape liability. He or she may be (but
seldom is) indicted as principal in the second degree, having
been present aiding and assisting the other in committing
the felony.
There are certain other offences connected with marriage.
For instance, persons solemnising marriage, except in the
manner required by law, are guilty of felony (k). Making
false declarations, signing false notices or certificates of
marriage, &c., are offences attended by the same penalties as
perjury (l).
INDECENT CONDUCT.
To this head may be referred the public and indecent
exposure of the person, which is a nuisance at common law.
An intention to outrage decency or to annoy need not be
shown. For instance, bathing in a state of nudity near
(/) R. V. Tolson, [1889] 23 Q. B. D. 168: 58 L. J. M. C. 97.
(g) 4 & 6 Geo. V. c. 58, s. 28, sub-s. 3.
(h) Archbold, 449, 452. 1232; v. also post, p. 367.
(i) 24 & 25 Vict. c. 100, s. 57.
(k) 4 Geo. IV. c. 76, s. 21 ; 6 & 7 Will. IV. c. 85, s. 39.
(/) 1 & 2 Geo. V. c. 6. s. 3. As to forging Marriage Licences, v. Forgery.
As to Abduction, v. p. 166.
HEALTH, AND GOOD OEDER. 113
inhabited houses or a frequented footpath is an indictable
offence (tti). So also is the exposing for public sale or view
any obscene book, print, picture, or other indecent exhibition.
Both of these offences are misdemeanours and punishable by-
fine or imprisonment with hard labour, or both (n). Power
is given to magistrates, under certain circumstances, to
authorise the searching of houses and other places in which
obscene books, «S;c., are suspected to be sold or otherwise
published for gain, and to authorise their seizure and
destruction (o).
The public exhibition of indecent pictures or writings, and
the delivery of handbills containing similar obscene matter,
are also punishable by fine and imprisonment under the
Act 52 & 53 Vict. c. 18, and advertisements relating to
diseases arising from sexual intercourse are declared to be
indecent within the meaning of the Act.
It is a misdemeanour punishable on conviction on indict-
ment with twelve months' imprisonment with hard labour,
or upon summary conviction by a fine of £10, to send or
attempt to send a postal packet which encloses any indecent
print, book, or article, or which has on its cover any words,
marksjOr designs of an obscene or grossly offensive character(p).
A newspaper proprietor who inserts advertisements inviting
persons to send for such prints, &c., may, if he knew them
to be indecent, be convicted as aiding and abetting such an
oft'ence (q).
GAMING AND GAMING-HOUSES.
The law does not deem it within its province to punish
such practices as ordinary gaming, unless either some fraud
is resorted to, or regular institutions are established for the
purpose, or play is carried on in a public place so as to amount
to a public nuisance.
(to) R. v. Reed, [1871] 12 Cox, 1.
(n) 14 & 15 Vict. c. 100, s. 29; v. also post, p. 123.
(o) 20 & 21 "Vict. c. 83. As to Indecent Assaults, v. p. 161; Disorderly
Houses, &c., V. p. 122; Acts of Indecency with a Male Person, v. p. 163.
(p) 8 Edw. VII. c. 48, s. 63.
iq) R. V. De Marny, [1907] 1 K. B. 388.
C.L. 8
114 OFFENCES AGAINST PUBLIC MORALS,
As to Gaming. — If any person by fraud, or unlawful
device, or ill practice, in playing with cards, dice, or other
games, or in betting or wagering on any game, sport, pastime,
or exercise, win any sum of money or valuable thing, he is
deemed guilty of obtaining money by false pretences, and
punished accordingly (r).
Betting or gaming in any street or 'public 'place, to which
the public have access, with any table or instrument of
gaming, at any game of chance, subjects the player to the
punishments of 5 Geo. IV. c. 83 (s), as a rogue and vagabond;
or, at the discretion of the magistrate, to a penalty not
exceeding 40s. for the first offence, and £5 for any subsequent
offence [t). A railway carriage in transit where gaming is
carried on is a public or open place within the meaning of
the statute [u). Mere betting on horseracing is not within
this statute [iv). But now any person frequenting or loitering
in streets or public places (but not racecourses) for the
purpose of bookmaking or betting or paying or receiving
bets may, for the first two offences, be fined £10 and £20
respectively by a Court of Summary Jurisdiction; and for a
third offence, and also in every case where it is shown that
while committing the offence he had any betting transaction
with a person under the age of sixteen, he may be convicted
on indictment and sentenced to a fine of £50 or to six months'
imprisonment (.r).
The subject of Lotteries will be considered under the head
" Nuisances."
A person who effects a marine insurance without having
any hona-fide interest in the safe arrival of the ship or in
the preservation of the subject-matter insured ; and any
person in the employment of the owner of a ship, not being
a part owner, who effects a contract of marine insurance in
(r) 8 & 9 Vict. c. 109, s. 17. Tossing for wagers is a pastime or exercise
within the meaning of this section. R. v. O'Connor, [1881] 45 L. T. N. S.
512; 15 0;x, 3.
(s) v.r ,. 127.
it) 36 & 37 Vict. c. 38, s. 3.
u) Lanqrish v. Archer, [1882] 10 Q. B. D. 44; 52 L. J. M. C. 47.
(«j) Lester v. Quested, [1901] 20 Cox, C. C. 6G.
(.t) 6 Edw. VII. c. 43.
HEALTH, AXD (iOOD OlIDER. 115
relation to the ship, the contract being made " interest or
no interest," or subject to a similar term, is liable on
summary conviction to six months' imprisonment, with or
without hard labour, and a fine of £100. A broker or other
person through whom such a contract is effected, and any
insurer with whom it is effected, is liable to the same punish-
ment if he knew that the contract was one of the above
nature {y).
As to Gaming-houses. — Houses of this description are
classed among public nuisances. The keepers are guilty of a
common law misdemeanour, and liable to fine or imprison-
ment, or both.
The chief steps taken by the Legislature to suppress the
evils of gaming-houses are the following : A statute of
Henry YIII. prohibited the keeping of any common house
for dice, cards, or other unlawful games, under a penalty
upon the keeper of forty shillings for every day, and upon
a player of six shillings and eightpence for every time of
playing (z). Subsequent statutes included other games under
heavier penalties (a). By a later statute (6), the statute of
Henry VIII. is repealed so far as it prohibited bowling,
tennis, or other games of mere skill. Further provision was
also made against those who own or occupy any house, room,
or place, who shall use the same for the purpose of unlawful
gaming. The owner or keeper, and every person assisting in
conducting the business of the house, is liable to a penalty
not exceeding £500, in addition to the penalty under 33
Hen. YIII.; or to imprisonment not exceeding twelve
months (c).
A common gaming-house has been defined to be a house kept
or used for playing therein unlawful game (i.e., any game
(y) 9 Edw. VII. c. 12, s. 1. Proceedings cannot be instituted under this Act
without the consent of the Attorney-General. There is a right of appeal to
Quarter Sessions.
iz) 33 Hen. VIII. c. 9.
(a) See 9 Anne, c. 19; 12 Geo. II. c. 28; 13 Geo. II. c. 19; 18 Geo. II. c. 34.
(b) 8 & 9 Vict. c. 109, amended bv 17 & 18 Vict. c. 38.
(c) 8 & 9 Vict. c. 109, s. 4; and i? & 18 Vict. c. 38, s. 4.
116 OFFENCES AGAINST PUBLIC MORALS,
of chance or any mixed game of chance or skill {d) ) and in
which a bank is kept by one of the players or in which the
chances are not alike favourable to all the players (e).
A club-house where mere games of chance are played
nightly is a common gaming-house, especially if the stakes
are excessive, and the proprietor of the house, and the com-
mittee of management, are liable to the penalty of £500;
mere players are not, but they may be bound over not to
haunt gaming-houses, and for playing dice and certain games
in gaming-houses fines may be imposed on the players (/).
No house, office, room, or other place may be opened or
used for the purpose of the owner, occupier, or keeper, or
any person using the same or having the care or management
of the business, betting with persons resorting there, or for
the purpose of receiving any money or valuable thing as the
consideration for any promise to pay or give any money or
valuable thing on the event of any race, light, game, sport,
or exercise i^g). Every such house is declared to be a common
nuisance, and also a gaming-house within the Gaming Act,
1845 {K). The penalty is £100, or six months' imprisonment
with hard labour (i). Exhibiting placards, or otherwise
advertising betting-houses, and offering by such means to
give information with a view to betting, are punished by a
penalty of £30, or imprisonment for two months iV). Any
fixed and recognised spot (such as a stool and an umbrella
tent over it on a racecourse) may be a betting place within
the meaning of the Act (Z) ; but nevertheless, the place must
be something in the nature of a betting-house or office, and
this is not the case where a bookmaker merely stands on a
(d) Se-nks V. Hurfin, [1884] 13 Q. B. D. at 530; 53 L. J. M. C. 161.
(e) 8 & 9 Vict. c. 109, s. 2.
(/) Jenks V. Turpin, supra; as to the liability of the players, see 33 Hen. VIII.
c. 9, ss. 8, 9 ; 12 Geo. II. c. 28, s. 3; 13 Geo. II. c. 19, s. 9.
(g) 16 & 17 Vict. c. 119, s. 1.
(h) 6 &9 Vict. c. 109.
(t) 16 & 17 Vict. c. 119, 8. 3. This penalty is enforceable on summary convic-
tion, the accused having a right to elect to be tried by a jury, v. p. 453. But he
may also be indicted for the nuisance.
(k) 16 & 17 Vict. c. 119, as amended by 37 Vict. c. 15.
(I) Botes V. Fenwick, [1874] L. R. 9 C. P. 339; 43 L. J. M. C. 107; Brown
V. Patch, [1899] 1 Q. B. 892; 68 L. J. Q. B. 588.
HEALTH, AND GOOD OKDEK. 117
racecourse, in an enclosure to which the public have as free
access as himself (m). The Act (n) is directed against the
owner or occupier of a place used for betting, and not against
persons resorting thereto for the purpose of betting (o) ; but
it will be sufficient " occupation " if the defendant uses the
place with the knowledge and assent of the real occupier of
the premises (p). A bona-fide club, although it may be
intended that betting should be carried on in the club-house
between the members, but not with non-members, is not a
house used for betting within the meaning of this Act (r).
But it will be otherwise where the club consists partly of
bookmakers and partly of members who go there to bet with
such bookmakers and not with each other (5). And the office
of a newspaper, which invited persons to enter upon a
*■ coupon competition " and to pay a small sum for guessing
the winners of horse-races upon the understanding that those
successful should receive prizes, was held to be within the
Act (t).
The fact that the entrance of a peace officer is obstructed,
or that the place is found provided with means of gaming,
is evidence that the house is a common gaming-house.
Heavy penalties are imposed for such obstruction, and also
upon any persons found in the house if they refuse their
names and addresses, or give them falsely (u).
Further, by the Licensing Consolidation Act, 1910, if any
licensed victualler suffers any gaming or unlawful game on
his premises, or keeps or uses them in contravention of the
Betting Act, 1853, or suffers them to be so used, he is liable
to penalties not exceeding for the first offence £10 and for
the second offence £20 (iv).
(m) Powell V. The Kempton Park Racecourse Compavy, Lim. [1899] App.
Cas. 143; 68 L. J. Q. B. 392. See, however, R. v. Humphrey, [1898] 1 Q. P..
(n) 16 & 17 Vict. c. 119.
(0) Snotv V. Hill, [1885] 14 Q. B. D. 588; 54 L. J. M. C. 95.
(p) R. V. Deaville, [1903] 1 K. B. 468; 72 L. J. K. B. 272.
(r) Dowries v. Johnson, [1895] 2 Q. B. 203; 64 L. J. M. C. 238.
(s) R. V. Corrie, [1904] 68 J. P. 294; Jackson v. Roth, [1919] 1 K. B. 102
(t) R. V. Stoddart, [1901] 1 K. B. 177 ; 70 L. J. Q. B. 189.
(u) 17 & 18 Vict. c. 38.
<w) 10 Edw. VII. & 1 Geo. V. c. 24, s. 79.
118 OFFENCES AGAINST PUBLIC MOKALS,
It has been made a misdemeanour, punishable by imprison-
ment with hard labour for three months, or a fine of £100,
or both — -(1) For the purpose of making a profit to send to a
person known to be an infant any advertisement, letter, &c.,
inviting him to bet or to apply for information as to betting,
racing, &c., or to borrow money (x); or (2) without the
sanction of any Court, to solicit, for the purpose of making
a profit, an infant to make an affidavit in connection with
any loan (y). If the letter, &c., inviting to bet is sent to
an infant at a university or school, the sender is to be deemed
to have known of his infancy unless he proves that he had
reasonable grounds for believing the contrary; and there is
the same presumption of knowledge of infancy in the case
of a letter inviting an infant to borrow money to whatever
place it may be addressed (z).
COMMON OR PUBLIC NUISANCES.
A common or public nuisance is an unlawful act or an
omission to discharge a legal duty, which act or omission
endangers the lives, safety, health, property, or comfort of
the public, or by which the public are obstructed in the
exercise or enjoyment of any right common to all the King's
subjects. It will be seen therefore that such public nuisances
consist of acts either of commission or of omission, that is,
causing something not authorised by law to be done which
annoys the community generally, or neglecting to do some-
thing which a legal duty and the common good require.
Public nuisances are opposed to private nuisances, which
annoy particular individuals only — that is, to which all
persons are not liable to be exposed (a). The distinction is
one based on the extent of the operation of the evil and not
one relating to the class of evil ; inasmuch as all kinds of
nuisances which when injurious to private persons are action-
(x) 55 Vict. c. 4, ss. 1, 2.
(y) Ibid. s. 4.
(z) Ibid. s. 3; 63 & 64 Vict. c. 61, s. 5.
(a) Archbold, 1247. R. v. Byers, [1907] 71 J. P., at p. 207
HEALTH, AND GOOD ORDEE. 119
able as private nuisances, when detrimental to the public
welfare are punishable on prosecution as public nuisances.
For instance, the obstruction of a public highway, in however-
remote a district, and although it may only lead to one or two-
houses, is a public nuisance, because every member of the-
public has a right to use the road, though few may desire-
to do so; whereas, on the other hand, a weir or dam in a non-
navigable river, by which fish are prevented from running;
up the river, only amounts to a private nuisance to the owners;
of land on the banks of the river, though they may be many-
hundreds in number (6).
Common nuisances are indictable at common law as mis-
demeanours, but many, perhaps most, of them are prohibited
by various statutes. They do not give rise to civil action by
every one who is subjected to the common annoyance. But
if any one can prove that he has sustained from the public
nuisance a particular damage or injury other than and beyond
the general injury to the public, and that such damage is
direct and substantial, he may pursue his civil remedy and
obtain compensation or an injunction (c). Conversely,
private nuisances are actionable only, and are not indictable.
Another course of proceeding is sometimes available in the
case of nuisances, namely, abateTnent or removal of the
nuisance without legal proceedings. In private nuisances
this is commonly allowed to be done by the party aggrieved.
In the case of public nuisances a private individual cannot
resort to this course unless the nuisance does him a special
injury, and then only so far as is necessary to exercise his
right' (rf).
A County Council or Urban District Council may remove
obstructions to or encroachments upon highways vested in
them (e).
Urban or Rural District Councils are empowered to re-
quire a person by whose act or default a nuisance arises or
(b) Leconfield v. Lonsdale, [1870] L. E. 5 C. P. 657; 39 L. J. C. P. 305.
(c) Benjamin v. Storr, [1874] L. E. 9 C. P. 400; 43 L. J. C. P. 162.
(d) Dimes v. Petley, [1850] 15 Q. B. 276; Ford v. Harrow Urban Council
[1903] 88 L. T. 394.
(e) Reynolds v. Urban District Council of Presteign, [1896] 1 Q. B. 604; 65
L. J. Q. B. 400.
120 OFFENCES AGAINST PUBLIC MORALS,
continues to abate the same within a specified time, and to
execute such works as may be necessary for that purpose (/).
If this requirement is not complied with complaint may be
made to the justices, and an order obtained to abate the
nuisance and imposing a penalty (g). If the order is
•disobeyed, further penalties are incurred, and power is given
to the sanitary authority to abate the nuisance, and recover
irom the offender any expense occasioned thereby (/i).
The principal classes of public nuisances will be briefly
noticed (i) :
(i) Nuisances to highicays, bridges, and public navigable
rivers. — These annoyances may be either positive, by actual
obstruction; or negative, by want of reparation. In the
latter case, only those persons are liable whose legal duty it
is to keep the roads, &c., in repair (k). The former class
consists of a variety of offences — for example, laying rubbish
on the road, or digging trenches in it; assembling or attract-
ing a crowd (Z) ; or diverting part of a public navigable river,
or obstructing the navigation.
In cases of this kind the real object of the proceedings
is to obtain the removal of an obstruction or to enforce the
duty to repair, and not to punish the defendant. It is there-
fore usual to postpone sentence to enable the defendant to
do his duty in this respect, and then to inflict a nominal fine.
The Court may, if it thinks fit, give judgment for the
prostration or removal of an obstruction and the sheriff will
then remove it (w). Upon a prosecution for the non-repair
or obstruction of a highway, public bridge, or navigable river,
(/) 38 & 39 Vict. c. 55, s. 9.
(g) Ibid. s. 96.
(h) Ibid. s. 98.
(t) The following is a useful classification of nuisances (v. Archbold, 1247) :
(i) Nuisances to bridges, highways, etc. ; (ii) Nuisances to public health or com-
fort ; (iii) Nuisances to public safety (see examples of " miscellaneous nuisances,"
post, p. 122); (iv) Nuisances to public morals or decency (including indecent
conduct, disorderly houses, etc.); (v) Nuisances in respect of corpses.
(fe) 5 & 6 Will. IV. c. 50. and other statutes cited, Archbold, 1284.
(l) Barber v. Penley, [1893] 2 Ch. 447 ; 62 L. J. Ch. 623; R. v. Carlile, [1834]
6 C. & P. 636.
(m) Bagshaw v. Buxton Local Board, [1875] 1 C. D., at p. 224; 45 L. J. Ch.
260.
HEALTH, AND GOOD ORDER. 121
either the prosecutor or the defendant may be ordered to pay
costs to the other as in civil proceedings (n).
(ii) Carrying on offensive or dangerous trades or manu-
factures.— Manufactures which are injurious to the health,
or so offensive to the senses as to detract sensibly from the
enjoyment of life and property in their neighbourhood, are
nuisances; and it is no defence that the public benefit out-
weighs the public annoyance (o). And, even though a
noxious trade has already been established in a place remote
from habitations and public roads, and persons come and build
near, or a new road is made, an indictment for a nuisance
will nevertheless lie (p). The presence of other nuisances
will not justify one of them (r), and no length of time will
legitimate a public nuisance, but the consideration of time
may sometimes concur with other circumstances to prevent the
character of nuisance from attaching. Where, for example,
a neighbourhood has long been devoted to offensive trades an
indictment will not lie for setting up another similar trade
unless the public inconvenience is greatly increased (5).
The manufacture, sale, carrying, and importation of gun-
powder, nitro-glycerine, and other explosive substances are
regulated by the"^ Explosives Act, 1875 (38 & 39 Vict. c. IT),
which contains stringent regulations as to the carrying on
of those trades.
The navigation of aircraft over certain areas may be
prohibited by a Secretary of State, and the infringement of
such a prohibition, except in the case of necessity, is
punishable on conviction on indictment or summarily by
imprisonment for six months or a fine of £200, or by both (t).
The fact that a nuisance has been created by works carried
on under statutory powers affords no defence unless the statute
either expressly sanctions the nuisance or authorises or directs
in) 8 Edw. VII. c. 15, s. 9, sub-s. 3.
(0) R. V. Ward, [1836] 5 L. J. K. B. 221.
(p) Hole V. Barlow, [1858] , 4 C. B. (N. S.). at p. 336; 27 L. J. C. P. 208
(r) R. V. Neil, [1826] 2 C. & P. 485.
is) R. V. Watts, M. & M.. 281; R. v. Neville, Peake (3rd ed.), 125.
it) 1 & 2 Geo. V. c. 4 ; see also 2 & 3 Geo. V. c. 22.
122 OFFENCES AGAINST PUBLIC MORALS,
the doing of what necessarily involves a nuisance (u).
Statutory powers which are merely permissive do not confer
any immunity from liability for nuisance (w).
Nuisances which affect the public health are dealt with
in the numerous statutes which treat of that subject, and
have already been referred to.
(iii) Houses, Sfc, which interfere with ijnhlic order and
decency. — The following places are nuisances, and, upon
indictment, may be suppressed, and their owners, keepers,
or ostensible managers punished by fine or imprisonment,
or both : Disorderly inns or alehouses ; bawdy-houses {.r) :
gaming and betting-houses [y] ; unlicensed or improperly
conducted playhouses, booths, stages for dancers, and the
like.
Prosecutions for keeping a bawdy-house or gaming-
house fall within the provisions of the Vexatious Indict-
ments Act [z).
(iv) Lotteries. — All lotteries are declared by statute {a)
public nuisances. A lottery is a distribution of prizes by
lot or chance, e.g., selling packets containing half a pound of
tea and a coupon for something of uncertain value constitutes
a lottery (6), But if the competition for prizes is decided by
skill or judgment, although the skill required may be small,
such a competition does not amount to a lottery (c). State
lotteries were, however, authorised by successive Acts of
Parliament until 1824, when they were discontinued.
(v) A vast number of other acts have been declared public
nuisances at common law ; for example, exposing in a public
(u) R. V. Pea.se, [1832] 4 B. & Ad. 30; Hammersmith, dc. Railway Co. v.
Brand, [1869] L. R. 4 H. L. 171; London and Brighton Railway Co. v. Tru-
man, 11 A. C, at p. 50.
iw) Metropolitan Asylums District v. Hill, 6 A. C. 193; 50 L. J. Q. B. 353:
H. V. Bradford Canal Co., G. B. & S. 731; 34 L. J. Q. B. 191.
(x) 25 Geo. II. c. 36, s. 8; 3 Geo. IV. c. 114; 48 & 49 Vict. c. 69, s. 13.
(y) V. p. 115, et seq.
(z) V. p. 330.
(a) 10 & 11 Will. III. c. 17. See also 42 Geo. III. c. 119, s. 2.
(h) Taylor v. Swetten, [1883] 11 Q. B. D. 207; 52 L. J. M. C. 100.
(c) Stoddart v. Saqar. [1895] 2 Q. B. 474; 64 L. J. M. C. 234; Hall v. Cor
[1899] 1 Q. B. 198 ; 68 L. J. Q. B. 167.
HEALTH, AND GOOD ORDER. 123
thoroughfare persons afflicted with infectious diseases;
exposing the person, and other indecent public exhibitions (tZ) ;
allowing mischievous dogs to go abroad unmuzzled, the
owner being aware of their nature; keeping fierce animals
in places open to the public; having an unfenced excavation
near a public street; keeping a corpse unburied if the de-
fendant has the means of providing burial (e) ; or disposing
of it in such a way as to cause a public nuisance (/) ; or with
a view to prevent an inquest being held upon it (g) ; removing,
without lawful authority and from whatever motive, a corpse
from a grave (h) ; making great noises in the street at night ;
using firearms in the highway to the terror of the public (t) ;
selling food unfit for human consumption (k) ; and in general
anything which is an appreciable grievance to the public at
large.
It was not until recently an offence to burn a dead body
provided it was not done in such a way as to cause a nuisance.
An Act has, however, now been passed enabling burial
authorities to construct proper crematoria and providing that
any person who shall procure or take part in the burning of
human remains except in accordance with the Act ajid the
regulations made under it shall be liable to a penalty of £50.
In order to prevent the process of cremation from being used
for improper purposes it is also provided that a person who,
with intent to conceal the commission or impede the prosecu-
tion of any offence, procures or attempts to procure the
cremation of a body or makes any declaration or certificate
under the Act, shall be liable to penal servitude for five years ;
and if even without such intent a person wilfully makes any
false representation, or signs, or utters, any false certificate
with a view to procuring the burning of anv human remains,
(d) V. pp. 112—13.
(e) R. V. Vann, [1851] 2 Den. C. C. 325.
(/) R. V. Price, [1884] 12 Q. B. D. 247.
(g) R. V. Stephenson, [1884] 13 Q. B. D. 331 ; 53 L. J. M. C. 176 : and see
2 Edw. VII. c. 8, s. 8, sub-s. 3.
(h) R. V. Sharpe, [1857] 26 L. J. M. C. 47; D. & B. 160.
(t) R. V. Meade, [1903] 19 Times L. K. 540.
(fc) R. V. Dixon, 3 M. & S. 11. '
124 OFFENCES AGAINST PUBLIC MOllALS,
he is liable to imprisonment with or without hard labour for
two years (I).
There are two cases where there might be a doubt as to
the person who is criminally responsible for a nuisance. As
between landlord and tenant the rule is that the person who
has the control of the premises is liable for the consequences
of a nuisance. The tenant is therefore prima facie liable, but
he may rebut that presumption by showing that the landlord
in fact has the control ; as, for example, where a public
nuisance is caused by the failure of the landlord to do repairs
for which he is responsible, and in respect to which he has
control of the premises (m). A master or employer is liable
for a nuisance caused by the acts of his servants if done in
the course of their employment, even though those acts are
done without his knowledge and contrary to his general
orders (n).
ADULTERATION AND UNWHOLESOME PROVISIONS.
The modern law as to adulteration is contained chiefly in
the Sale of Food and Drugs Act, 1875 (o). Mixing or
ordering, or permitting other persons to mix, colour, or
stain, any article of food with any material injurious to
health, with intent that the same may be sold in that state,
is punishable for the first offence by a penalty of <£50; the
second offence is a misdemeanour, punishable by imprison-
ment not exceeding six months (p). The same consequences
attend the adulteration of drugs, so as to affect injuriously
the quality or potency of such drugs (q). In either case the
person is excused if he can prove absence of knowledge of the
adulteration, and that he could not with reasonable diligence
(I) 2 Edw. VII. c. 8, 8. 8.
(m) Cavalier v. Pope, [1905] 2 K. B., at 762.
in) R. V. Stephens, [1866] L. R. 1 Q. B. 702; 35 L. J. Q. B. 251; v. p. 12.
(o) 38 & 39 Vict. c. 63, which applies equally to the case of a purchase by a
private individual under section 12 and by the public officer mentioned in sec-
tion 13 of the Act. Parsons v. The Birmingham Dairy Company, [1882] 9
Q. B. D. 172; 51 L. J. M. C. Ill; see also 62 & 63 Vict. c. 51.
(p) 38 & 39 Vict. c. 63, s. 3.
(g) Ibid. s. 4. •
HEALTH, AND GOOD ORDER. 125
have obtained that knowledge (r). He is also to be discharged
if he can prove that he bought the article in the same state
as he sold it, with a warranty (s). The giving of a false
warranty is punishable by fine (i).
There are other minor offences in connection with the sale
of food, &c., viz., selling to the prejudice of the purchaser
any article of food, or any drug, which is not of the nature,
substance, or quality of the article demanded by such
purchaser (w); abstracting from an article of food so as to
affect injuriously its quality, substance, or nature, with the
intent that the same may be sold in its altered state without
notice thereof (w), the penalty in each case being £20.
In a prosecution under this enactment for selling any
article of food, or any drug, which is not of the nature,
substance, or quality demanded by the purchaser, it is not
necessary to prove guilty knowledge on the part of the seller (a;).
But the absence of such guilty knowledge would be a
defence to a charge of adulteration under the third or fourth
sections of the Act, and also to a charge of giving a false
warranty under the twenty-seventh section (y).
Medical officers and inspectors of nuisances are empowered
by the Public Health Act, 1875, to inspect and examine any
animal, meat, fish, vegetables, corn, bread, milk, «S;c., sold
or exposed for sale, or in course of preparation for sale, and
intended for the food of man, and, if they consider the same
diseased, unsound, or unfit for food, to seize and carry it
away so as to be dealt with by a justice, who may order it
to be destroyed, and may also punish the person to whom it
belongs or on whose premises it was found by a penalty of
£20 for every animal, &c., so condemned, or by imprisonment
(without fine) for a term not exceeding three months (z).
(r) Ibid. 8. 5.
(s) Ibid. s. 25; 62 & 63 Vict. c. 51, s. 20.
(t) Ibid. s. 27 ; 62 & 63 Vict. c. 51, s. 20.
(u) Ibid. s. 6.
(w) Ibid, a .9.
(x) Belts V. Armstead, [1888] 20 Q. B. D. 771; 57 L. J. M. C. 100.
(y) Derbyshire v. HouUston. [1897] 18 Cox, C. C. 609.
(z) 38 & 39 Vict. c. 55, ss 116—19; 53 & 54 Vict. c. 59. s. 28.
126 OFFENCES AGAINST PUBLIC MORALS,
The adulteration and killing of seeds are punishable by a
fine of £5 for the first and £50 for a subsequent offence (a).
Penalties are also imposed for the adulteration, &c., of
•agricultural fertilisers and feeding-stuffs (&).
The adulteration of beer is forbidden under a penalty of
£50 (c).
There are also special statutory provisions as to butter,
and the sale of margarine (i.e., any substance prepared in
imitation of butter) is only allowed provided the conditions
imposed by the Margarine Act (d) are complied with. These
conditions require, amongst other things, that all cases and
packages containing margarine should be conspicuously
marked with that word. The penalties for infringing this
Act are £20 for the first offence, £50 for the second, and
£100 for subsequent offences.
FACTOHIES, WORKSHOrS, AND MINES.
By the Factory and Workshop Acts (e), many regulations
are made as to the sanitary arrangements of such buildings,
the safety of machineiy, &c., used therein, the periods of
employment of children and women, the education of
children, accidents, and many' other matters as to which the
reader is referred to the statutes. Pecuniary penalties (and
in some cases imprisonment) are imposed for breaches of these
regulations. There are also statutes containing similar pro-
visions with regard to mines (/).
WANTON AND FURIOUS DRIVING.
Any one having the charge of any carriage or vehicle,
who, by wanton or furious driving or racing, or by wilful
misconduct, or by wilful neglect, causes any bodily harm
(o) 32 & 33 Vict. c. 112.
(b) 6 Edw. VII. c. 27.
(c) 48 & 49 Vict. c. 51, s. 8.
(d) 50 & 51 Vict. c. 29; see also 62 & 63 Vict. c. 51, and 7 Edw. VII. c. 21.
(e) 41 Vict. c. 16 ; 54 & 55 Vict. c. 75 ; 58 & 59 Vict. c. 37 ; 1 Edw. VII. c. 22.
(/) As to coal-mines, 1 & 2 Geo. V., c. 50. As to metalliferous mines, 35 & 36
Vict. c. 77. As to the employment of young persons under eighteen in shops
or warehouses, 55 & 56 Vict. c. 62. As to laundries, 7 Edw. VII. c. 39.
HEALTH, AjN'D GOOD ORDEll. 127
to anotlier, is guilty of a misdemeanour, and is liable to im-
prisonment not exceeding two years, or fine, or both [g).
If any person drives a motor-car recklessly or negligently
or at a speed or in a manner dangerous to the public, even
though no injury is caused, he is liable on summary con-
viction to a fine of £'20, or in the case of a second conviction
to a fine of £50 or imprisonment for three months [It). And
whether or not danger is caused no person may drive a motor-
car at a greater speed than 20 miles per hour, nor within
any limits prescribed by the Local Government Board at a
greater speed than 10 miles per hour, under a penalty of £10
for the first, £20 for the second, and £50 for the third
offence {i).
VAGRANCY.
There are always in this country a great number of persons
who, without making any attempt to earn a livelihood, make
it their habit and mode of life to wander about begging and
otherwise misconducting themselves. The law punishes such
as vagrants, taking care that mere misfortune or poverty does
not place an innocent person in this class {k). The chief
statute on the subject is 5 Geo. IV. c. 83, amended by 1 & 2
Vict. c. 38; other Acts render liable to the punishments of
these statutes those who evidence their culpability by certain
kinds of conduct.
Persons of this character are diveded into three classes :
— (1) Idle and disorderly persons; (2) Rogues and vagabonds;
(3) Incorrigible rogues.
(1) Idle and disorderly persons. — This class consists of
such characters as the following : (i) Persons able but
(g) 24 & 25 Vict. c. 100, s. 35. If the driving is dangerous but no harm is
occasioned, the driver is liable to a penalty of 40s., 7 Edw. VII. c. 53, s. 79.
(h) 3 Edw. VII. c. 3G, ss. 1, 11.
(t) Ibid. s. 9.
(fc) Pointon V. Hill, [1884] 53 L. J. M. C. 62; 15 Cox, 461, where it was held
that workmen on strike who collected alms for themselves and their fellows
were not " idle and disorderly persons " within the meaning of 5 Geo. IV.
c. 83, 8. 3.
128 OPFENCES AGAINST PUBLIC MORALS,
refusing to work and becoming or allowing tlieir families
to become chargeable to tbe parish; (ii) those returning
to and becoming chargeable on a parish from which they
have been legally removed by justices; (iii) hawkers and
pedlars wandering about and trading without licence; (iv)
prostitutes behaving in public places in a riotous or indecent
manner; (v) beggars asking alms or causing or encouraging
any children to do so (I) ; (vi) insubordinate or disobedient
paupers (w) ; (vii) persons fraudulently applying for parish
relief or not making a complete disclosure of property in their
possession (n).
The punishment on conviction before a magistrate for the
first offence is imprisonment for a period not exceeding one
month (o).
(2) Rogues and vagabonds. — Under this designation fall
(i) those who commit any of the above offences a second time;
(ii) persons pretending to tell fortunes ; (iii) wandering about,
lodging in a barn, in the open air, not having any visible
means of subsistence, and not giving a good account of them-
selves ; (iv) publicly exposing to view obscene prints, &c. ;
(v) publicly exposing their persons; (vi) exposing wounds or
deformities in order to obtain alms; (vii) collecting alms or
contributions of any kind under false pretences; (viii) run-
ning away and leaving wife or children chargeable to the
parish; (ix) gaming or betting in public {yi); (x) having
in possession one or more of certain instruments with intent
to commit a felonious act; (xi) being found in a dwelling-
house, &c., for an unlawful purpose; (xii) suspected or
reputed thieves frequenting or loitering about public places
with intent to commit a felony {q) ; (xiii) making violent
resistance when apprehended by a police officer as an idle
and disorderly person, provided he be convicted as such;
Q) 5 Geo. IV. c. 83, s. 3. But begging for a special occasion is not within
this Act, Pointon v. Hill, supra,
(m) 34 & 35 Vict. c. 108, s. 7.
(n) 11 & 12 Vict. c. 110, s. 10; 45 & 46 Vict. c. 36, s. 5.
(o) 5 Geo. IV. c. 83, s. 3.
(p) 36 & 37 Vict. c. 38 ; v. p. 128.
(q) 5 Geo. IV. c. 83, s. 4; 33 & 34 Vict. c. 112, s. 15; 54 & 55 Vict. c. 69, s. 7.
HEALTH, AND GOOD ORDER. 129
(xiv) acting contrary to directions of certificates given to per-
sons discharged from prison under 5 Geo. IV. c. 83; s. 15 (r);
(xv) an alien who disobeys an order for his expulsion, or an
alien immigrant who is guilty of an offence against the Aliens
Act, 1905 (s) ; (xvi) a male person who knowingly lives wholly
or in part on the earnings of prostitution or who in a public
place persistently solicits or importunes for immoral pur-
poses (t). Also a man or woman who has for gain exercised
control or influence over a prostitute so as to show that he or
she is aiding her prostitution with any person ; the punishment
in these cases on summary conviction is sia months' imprison-
ment, but the offender cannot upon a second conviction be
proceeded against as an " incorrigible rogue." He can, how-
ever, be prosecuted either for the first or subsequent offence,
by indictment, and in that case he may be sentenced to
imprisonment for two years and, on a second conviction, if
a male, to be whipped (w).
The punishment which may be awarded by the magistrate
is imprisonment not exceeding three months. But from him
there is an appeal to quarter sessions (w).
(3) Incorrigible rogues. — To be dealt with as such are :
(i) Those who are convicted a second time of an act which
makes the doer a rogue and vagabond (except as above stated) ;
(ii) escaping out of a place of confinement before the ex-
piration of the time for which they were committed under
the Act; (iii) making violent resistance when apprehended by
a peace officer as a rogue and vagabond, if subsequently
convicted of the offence for which they were apprehended (x).
The magistrate may commit a person convicted as an
incorrigible rogue to prison with hard labour until the next
Quarter Sessions. By that Court he may be imprisoned with
(r) 5 Geo. IV. c. 83, s. 4.
(s) 5 Edw. VII. c. 13, 8. 3, sub-s. 2, and s. 7; as to which v. p 440 post
it) 61 & eg Vict. c. 89. *
(u) 2 & 3 Gm. V. c. 20, s. 7, sub-ss. 1, 4, 5.
iw) 5 Geo. IV. c. 83. ss. 4, 14; 4 & 5 Geo. V. c. /JS, s. 37.
(a;) 5 Geo. IV. c. 83, s. 5.
C.L.
130 OFFENCES AGAINST PUBLIC MORALS,
hard labour for a period not exceeding one year and ordered
to be whipped (y). ^
SENDING UNSEAWORTHY SHIPS TO SEA.
Every person who sends or attempts to send, or is a party
to sendinjjf or attempting to send, a British ship to sea in such
an unseaworthy state that the life of any person is likely to
be thereby endangered, is guilty of a misdemeanour (z).
The master of a British ship knowingly taking her to sea
in such an unseaworthy state is also guilty.
But the accused will not be deemed guilty if he proves in
the former cases that he has used all reasonable means to
ensure the ship being sent to sea in a seaworthy state, or
that her going to sea in such an unseaworthy state was, under
the circumstances, reasonable and justifiable; in the case of
the master, if he proves the latter of these points.
The consent of the Board of Trade is necessary before the
institution of any prosecution for this offence (a).
(y) Ibid. a. 10. The incorrigible rogue is not indicted at Quarter Sessions,
but merely brought up for sentence, he having been already convicted at Petty
Sessions. Though drunkenness is not an indictable offence, but only punishable
on summary conviction, the subject may have a passing notice here. A person
found drunk and incapable in any street or public thoroughfare, building, or
other place, or on any licensed premises, is liable to a penalty of 10s. for the
first offence ; 20s. and 40s. for the second and third within the twelve months ;
if he is in charge of a child under seven years of age the penalty is 40s. or
imprisonment for a month (2 Edw. VII. c. 28, s. 2). If, whilst drunk, a person
is guilty of riotous or disorderly behaviour, or is in charge of any carriage, horse,
cattle, or steam-engine, or is in possession of any loaded firearms, the penalty
is 40s. or imprisonment for a month (35 & 36 Vict. c. 94, s. 12). A penalty is
inflicted upon publicans for permitting drunken conduct, 10 Edw. VII. and
1 Geo. V. c. 24, s. 75; v. also 10 & 11 Vict. c. 89. As to the detention in an
inebriate reformatory of criminal habitual drunkards, v. p. 440. As to prohibi-
tion of sale of liquor to persons declared to be habitual drunkards, v. 2 Edw. VII.
c. 28, s. 6.
(z) 57 & 58 Vict. c. 60, s. 4-57.
(a) The same Act provides heavy pecuniary penalties for overloading sea-
going ships.
HEALTH, AND GOOD ORDER. 131
NEGLECT OF DUTY BY MASTERS, ETC., OF SHIPS.
Owners and masters of ships are bound to conform witli
the regulations as to lights and sailing rules prescribed by
the Merchant Shipping Act Amendment Act, 1894, and in
case, of wilful default the person offending is guilty of a
misdemeanour (6).
It is a misdemeanour for a pilot when piloting a ship, by
wilful breach or neglect of duty or by reason of drunkenness,
to do any act tending either to the immediate loss or serious
damage of the ship, or to endanger the life or limb of any
person on board. There are also severe pecuniary penalties
for acts of minor misconduct (c).
It is also a misdemeanour for the master or person in
charge of a vessel to fail, without reasonable cause, to stand
by another vessel with which his own has come into collision,
or to render all necessary assistance to the passengers and
crew, or to give to the master of the other vessel the name of
his own vessel (d).
TRADES REQUIRING A LICENCE OR REGISTRATION.
There are certain trades and professions as to which the
law requires for various reasons that those who exercise them
shall in some cases obtain a licence and in others shall register
themselves, and pecuniary penalties, in most cases severe,
are inflicted upon those persons who are convicted summarily
of carrying on such trades or professions without licence or
registration. The occupations in question are too numerous
to be here specified, but the following may be given as
examples of iJiose for which a licence is required : Sellers
of intoxicating liquor, keepers of private lunatic asylums,
pawnbrokers, and game dealers. Amongst businesses and
(b) 57 & 58 Vict. c. 60, s. 419.
(C) 2 & 8 Geo. \. c. HI. ss. 46, 47, 48.
(d) 57 & 58 Vict. c. 60, s. 422.
132 OFFENCES AGAINST PUBLIC MORALS, ETC.
professions requiring registration are medical practitioners,
chemists, dealers in explosives, and manufacturers of
margarine. A recent addition to the latter class are money-
lenders, who are required to register themselves under a
penalty of £100, or, upon a second conviction, a similar
penalty and three months' imprisonment with hard labour (e).
(e) 63 & 64 Vict. c. 51, s. 3.
CHAPTER IX.
OFFENCES RELATING TO GAME.
We proceed to treat of poaching and the attendant ofFences.
We shall find hereafter that animals ferae naturce (including
game) in their live state are not the property of any one,
and on this account are not the subjects of larceny. The
Legislature has, however, made special provisions for their
protection.
Night poaching is' treated as a much more serious offence
than poaching by day.
The principal statute on the subject is 9 Geo. IV. c. 69,
amended by 7 & 8 Vict. c. 29 and 25 & 26 Vict. c. 114. The
following are the chief offences :
(i) Any person by night (declared to commence one hour
after sunset, and to conclude at the beginning of the last
hour before sunrise (/)) unlawfully taking or destroying any
game (hares, pheasants, partridges, grouse, heath or moor
game, black game, and bustards), or rabbits, in any land open
or enclosed (g), or on public roads, highways, gates, outlets,
or openings, between such lands and roads (h).
(ii) Any person entering or being by night in such places,
with any gun, net, engine, or other instrument, for the
purpose of taking or destroying game (i).
The punishment for the first offence in each case on
summary conviction is imprisonment not exceeding three
months, and at the expiration of such period to be bound over
to good behaviour for a year or, in default of sureties, further
imprisonment not exceeding six months, or until such sureties
(/) 9 Geo. IV. c. 69, s. 12. (g) Ibid. a. 1.
(fe) 7 & 8 Vict. c. 29, s. 1. (t) 9 Geo. IV. c. G9, s. 1.
134 OFFENCES RELATING TO GAME.
be found. For the second, likewise siiinmarily dealt with,
each of the above periods is doubled. The third offence
against the same section is an indictable misdemeanour,
punishable by penal servitude to the extent of seven years {k).
When any person is found committing such offence, it is
lawful for the owner or occupier of the land (or in the case
of a public road, &c., of the adjoining land), or for any
person having the right of free warren or free chase therein,
or for the lord of the manor, or for the gamekeeper or
servant of such persons, or for any one assisting them, to
apprehend the poacher. If the latter assaults or offers any
violence with an offensive weapon to such person, he is
phinishable for the misdemeanour with penal servitude to
the extent of seven years (/).
A graver offence is dealt with in a later section of the same
statute. For three or more persons by night to unlawfully
enter, or be in any land (or road, &c., 7 & 8 Yict. c. 29), for
the purpose of taking or destroying game or rabbits, any of
the party being armed with fire-arms or other offensive
weapons, is a misdemeanour in each, punishable by penal
servitude to the extent of fourteen years {nrn). It should be
observed that all the party may be convicted of this offence
if any of th,em be armed to the knowledge of the others (n).
Sticks and large stones are arms within the meaning of the
Act, if the jury is satisfied that they were taken with the
object of being used as such, and were of such a nature that
they might, if used, cause serious injury (o).
Any person may arrest those who are found committing
the last-mentioned offence (p).
The prosecution for every offence within this Act, if
punishable on summary conviction, must be comnj^nced
within six months after the offence; if punishable by indict-
(k) 9 Geo. IV. c. 69, s. 1. R. v. Lines, [1902] 1 K. B. 199; 71 L. J. K. B.
125 ; 85 L. T. 790 ; 60 W. R. 303; 66 J. P. 24.
(D 9 Geo. IV. c. 69, s. 2.
(m) Ihid. 8. 9.
(n) R. V. Smith, [1818] E. & R. 368; R. v. Southern, [1821] R. & R. Ui.
(o) R. V. Sutton, [1877] 13 Cox, 648.
(p) 14 & 15 Vict. c. 19, 8. 11 ; R. v. Sanderson, [1859] 1 F. & F. 598.
OFFENCES RELATING TO GAME. 135
ment, or otlierwise than by summary conviction, within
twelve months (q).
Unlawfully taking, killing, &c., hares, rabbits, and deer
is punishable under the Larceny Act, 1861 (r).
The law as to day poaching is principally contained in the
Act 1 & 2 Wm. IV, c. 32. That Act also provides close
seasons for the various kinds of game. By section 30 persons
trespassing by day in pursuit of game or rabbits are liable
on summary conviction to a fine of £2, or £5 each if five*
or more go together for that purpose.
Poaching fish in private waters not adjoining or belonging
to the dwelling-house of the owner is punishable under
24 & 25 Yict. c. 96, s. 24, by a fine (s).
By 43 & 44 Vict. c. 35, and 44 & 45 Vict. c. 51, a close
time is appointed for most kinds of wild birds, and the
destruction of such birds or their eggs during the close seasoD
is punishable by fine.
In connection with this subject it may be noticed that,
although any innocent means may be employed to prevent
game from being taken, and land from being trespassed on,
it is criminal to adopt certain extreme measures. Setting a
spring-gun, man-trap, or other engine calculated to destroy
life, or inflict grievous bodily harm, with intent that the
same, or whereby the same may destroy or inflict grievous
bodily harm upon a trespasser or other person coming in
contact therewith, is a misdemeanour punishable by penal
servitude to the extent of five years. But this does not
prevent a man-trap, &c., being set to protect a dwelling-
house from sunset to sunrise (t).
(q) 9 Geo. IV. c. 69, s. 4.
(r) V. p. 198.
(s) As to poaching fish in waters adjoining or belonging to the dwelling-house,
V. p. 198.
(t) 24 & 25 Vict. c. 100, s. 31.
PART II.
OFFENCES AGAINST INDIVIDUALS.
Offences which immediately affect individuals are regarded
as crimes, and not merely as violations of private rights,
on several grounds. First, because they are considered as
contempts of public justice and the Crown; secondly, because
they almost always include in them a breach of the public
peace; thirdly, because, by their example and evil tendency,
they threaten and endanger the subversion of all civil
society (w).
Offences against individuals may be divided into two classes
— those
::> Against their Persons.
Against their Property.
(u) 4 Bl. 17G.
OFFENCES AGAINST INDIVIDUALS— THEIR
PERSONS.
CHAPTER I.
HOMICIDE.
Homicide — the destroying of the life of a human being — ■
includes acts varying from those which imply no guilt at all
to those which deserve and meet with the extreme punish-
ment of the law. Three kinds of homicide are usually
distinguished, each class admitting of sub-division.
Justifiable : Excusable : Felonious.
It may be stated at the outset that if the mere fact of
the homicide is proved, the law presumes the malice which
is necessary to make it amount to murder; and it therefore
lies on the accused to show that the killing was justifiable
or excusable, or that it only amounted to manslaughter (w).
Justifiable Homicide, that is, where no guilt, nor even
fault, attaches to the slayer. — For one species of homicide
the term " justifiable " seems almost too weak, inasmuch
as not only is the deed justifiable, but also obligatory. Three
cases of justifiable homicide are recognised: —
(1) Where the proper officer executes a criminal in strict
conformity with his legal sentence. A person other than
the proper officer (i.e., the sheriff or his deputy) who performs
the part of an executioner is guilty of murder. The criminal
must have been found guilty by a competent tribunal; so
that it would be murder otherwise to kill the greatest of
(w) R. V. Greenacre, [1837] 8 C. & P. 35.
HOMICIDE. 139
malefactors. The sentence must have been legally given —
that is, by a Court or Judge who has authority to deal with
the crime. If judgment of death is given by a Judge who
has not authority, and the accused is executed, the Judge is
guilty of murder. The sentence must be strictly carried out
by the officer (i.e., the sentence as it stands after the remission
of any part which the Sovereign thinks fit), so that if he
beheads a criminal whose sentence is hanging, or vice versa,
he is said to be guilty of murder. Though the Sovereign may
remit a part of the sentence, he may not change it (x).
The two following instances of justifiable homicide are
permitted by the law as necessary; and the first, at least, for
the advancement of public justice.
(2) Where an officer of justice, or other person acting in
his aid, in the legal exercise of a particular duty, kills a
person who resists or prevents him from executing it.
Homicide is justifiable on this ground in the following
cases (y) : (i) When a peace officer., in due execution of his
office, whether in a civil or criminal case, or a private person
assisting a peace officer, or lawfully making an arrest, kills
one who is resisting his arrest, provided that no more force
was used than was necessary, (ii) When prisoners in gaol,
or going to gaol, assault the gaoler or officer, and he, in his
defence, to prevent an escape, kills any of them, (iii) When
an officer, or private person, having legal authority to arrest
or prevent escape, attempts to do so, and the other flies, and
is killed in the pursuit. But' here the ground of the arrest
must be either treason felony or the infliction of a dangerous
wound, and it must be shown that the criminal could not be
arrested without killing him. (iv) When an officer, in
endeavouring to disperse the mob in a riot or rebellious
assembly, kills one or more of them, he not being able other-
wise to suppress the riot. In this case the homicide is
justifiable both at common law and by the Riot Act (z).
(x) Except in the case of treason ; as to which v. p. 39.
iy) V. Archbold, 868.
(z) 1 Geo. I. St. 2, c. 5.
140 HOMICIDE.
In all these eases, however, it must be shown that the
killing was apparently a necessity.
But it is not difficult to instance cases in which the officer
would be guilty (a) of murder — for example, if the intentional
killing in pursuit as above were in case of one charged with
a misdemeanour only, or of one arrested merely in a civil
suit (a) ; (b) of manslaughter — for example, if the killing in
case of one so charged with a misdemeanour were occasioned
by means not likely to kill, as by striking a blow with an
ordinary stick.
(3) When the homicide is committed in defence of person
or property against some forcible and atrocious crime. Such
crimes, it is said, are the following : Attempting to rob or
murder another in or near the highway or in a dwelling-
house; or attempting to break into a dwelling-house with
intent to rob. The killing need not be in self-defence, but
may be in defence of another against whose person or property
a serious crime is threatened. In such cases, therefore, not
only the owner, his servants, and members of his family,
but also any strangers present, are justified in killing the
assailant. So under circumstances which induced the belief
that a man was cutting the throat of his wife, their son
shot at and killed his father; it was held that if the accused
had reasonable grounds for believing and honestly believed
that his act was necessary for the defence of his mother, the
homicide was justifiable (b).
It should be noticed that this justification does not apply
to felonies without force, e.g., pocket-picking; nor to mis-
demegtnours, save that in defence of a man's house the owner
or his family may kill a trespasser trying forcibly to dis-
possess him of it(c). But this will not justify a person firing
upon every one who forcibly enters his house, even at night.
He ought not to proceed to the last extremity until he has
taken all other steps to prevent the crime which is being
attempted (d).
(a) R. V. Dadson, [1850] 20 L. J. M. C. 57.
ib) R. V. Rose, [1884] 15 Cox, 540.
(c) Archbold, 871; R. v. Symondson, [1896] 60 J. P. 645.
(d) R. V. Bull, [1839] 9 C. & P. 22.
HOMICIDE. 14 J
A woman is justified in killing one wlio attempts to ravish
her; and so, too, the husband or father may kill a man who
attempts a rape on his wife or daughter.
It is said that the party whose person or property is
attacked is not obliged to retreat, but he may even pursue
the assailant until he finds himself or his property out of
danger (dd). In so doing, however, killing will not be justifi-
able except in self-defence and to overcome resistance offered
to him (e).
Excusable Homicide. — It may perhaps be doubted whether
there is any substantial ground for the distinction between
justifiable and excusable homicide. But in the former case
the killer is engaged in an act which the law enjoins or allows
'positively, while in the latter he is about something which
the law negatively does not prohibit. In neither case is there
the malice which is an essential of a crime. In former times,
a very substantial difference was made between the two kinds
of homicide. That styled "excusable" did not imply that
the party was altogether excused; so much so that Coke
says (/) that the penalty was death. But early records show
that the defendant received a complete pardon, and the
restitution of his goods [g), though he probably had to pay
a sum of money to procure the pardon. Now it is expressly
declared by statute {h) that no forfeiture or punishment shall
be incurred by any person who kills another by misfortune or
in self-defence, or in any other manner without felony.
The two kinds of so-called excusable homicide are homicide
in self-defence, on a sudden affray; homicide by accident or
misfortune,
(1) Se defendendo, upon sudden affray. — We have noticed
above the case of a man killing another when the latter is
(dd) R. V. Scully, 1 C. & P. 319.
(e) Archbold, 851; v. R. v. Deana, [1909] 73 J. P. 255; 25 T. L. E. 299.
(/) 2 Inst. 148, 315.
(g) V. 6 Edw. I. c. 9.
(h) 24 & 25 Yict. c. 100, s. 7, re-enacting 9 Geo. IV. c. 31, s. 10.
142 • HOMICIDE.
engaged in the performance of some forcible crime. What
we have now to deal with is a kind of self-defence, the
occasion of which is more uncertain in its origifi, and in
which it seems ^natural to impute some moral blame to both
parties. It happens when a man kills another, upon a sudden
affray, in his own defence, or in defence of his wife, child,
parent, or servant, and not from any vindictive feeling.
This is one species of what is called chance (casual) or chaud
(in heat) medley (z).
To bring the killing within this excuse, the accused must
show that he endeavoured to avoid any further struggle, and
retreated as far as he could, until no possible, or at least
probable, means of escaping remained ; that then, and not
until then, he killed the other in order to escape destruction.
It matters not that the defendant gave the first blow, if he
has terminated his connection with the affray by declining
further struggle before the mortal wound is given. To excuse
the mortal stroke it must be made entirely in self-defence
against imminent danger; for if the struggle is over, or the
other has already been disabled or is running away, this is
revenge and not self-defence (Jc).
Nor can self-defence be an excuse if there are any circum-
stances indicative of express malice in the party killing, as
for instance, if the killer entered into the quarrel intending
to use a deadly weapon or if the affray is a renewal of a
previous quarrel (Z).
It should be observed that a man has no right to sacrifice
an innocent and unoffending person by killing him, even if
it affords the only chance of saving his own life. If he does
so he is guilty of murder (m).
(2) By misadvenfMre. — When a person doing a lawful act,
without any intention of hurt, by accident kills another;
(i) For manslaughter in a sudden affray, v. p. 149.
(k) R. V. Ayes, K. & K. 136; R. v. Smith, [1837] 8 C. & P. 160.
(l) Archbold, 842—8.
(to) R. v. Dudley, [1884] 14 Q. B. D. 273; 54 L. J. M. C. 39.
HOMICIDE. 143
as, for example, a man is at work with a hatchet, the head
flies off by accident, and kills a bystander.
To bring the slaying within the protection of the excuse,
the act about which the slayer is engaged must be a lawful
one. For if the slaying happen in the performance of an
illegal act it is manslaughter at least, and murder if such
act was a felony (n), unless the act was one which could not
of itself be likely to cause any danger to life. It must also
be done in a proper manner. Thus it is a lawful act for a
parent to chastise his child, and therefore if the parent
happens to occasion the death of the child, if the punishment
is moderate, the parent will be innocent. But if the cor-
rection exceeds the bounds of moderation, either in the
manner, the instrument, or the quantity of the punishment,
and death ensues, it is manslaughter at the least, and in some
cases murder. Thus it will, as a rule, be murder if the instru-
ment used is one likely to cause death; manslaughter, if the
instrument is not of such a character, though an improper
one (o).
The act must also (iii) be done with due caution to prevent
danger; and therefore with more caution by those using
dangerous instruments or articles. Due caution is such as to
make it improbable that any danger or injury should arise
from the act to others. Thus, if a workman throw stones or
rubbish from a house, whereby the death of some one is
caused, it may be murder, manslaughter, or homicide by
misadventure; murder, if the thrower knew that people were
passing, and gave no notice; manslaughter, if at a time when
it was not likely that any people were passing; excusable
homicide, if in a retired place where persons were not in the
habit of passing or likely to pass (p).
(n) V. R. V. Hodgson, [1730] 1 Leach, 6. There is no doubt authority for
saying that killing in the course of the commission of any felony is murder,
whether the act was one likely to cause death or not. But the qualification
given in the text is in conformity with the more modern opinion and the mode
in which juries are now usually directed, v. R. v. Semi, [1887] 16 Cox 311;
R. V. Whitmarsh, [18981 62 J. P. 711; R. v. Lumley, 22 Cox, 635; 76 J. P. 208.
(o) R. V. Hopley, [1860] 2 F. & F. 202; R. v. Griffin, [1869] 11 Cox, C. C.
402: P. V. Chee^Pman, [1836] 7 C. & P. 455.
(p) Archbold, 854.
144 HOMICIDE.
SUICIDE OR SELF-MUKDER.
Suicide is a felony if the act be committed deliberately,
and by one who has arrived at years of discretion and is
in his right mind. The supposed absence of the last requisite
is often taken advantage of by a coroner's jury in order to
save the reputation of the deceased.
If one persuades another to kill himself, and he does so, the
adviser is guilty of murder. So, also, if two persons agree
to commit suicide together, if one escapes and the other dies,
the survivor is guilty of murder (q).
At one time the punishment for this crime was an
ignominious burial in the highway, without Christian rites,
with a stake driven through the body, and the forfeiture
of all the deceased's goods and chattels to the Crown. But
some time back the law was altered, the only consequence
now being the denial of the right of burial according to the
rites of the Church of England (r). The forfeiture has been
done away with in this as well as in other kinds of felony (s).
An attempt to commit suicide is an attempt to commit a
felony and is a common law misdemeanour, punishable by
fine and imprisonment (with hard labour) (t). But it is not
an attempt to commit murder within the Offences Against the
Person Act (u).
The felonious killing of another is either murder or man-
slaughter. In dealing with the crime of murder, we shall
anticipate, to some extent, the law of manslaughter, a great
part of the law on the subject consisting in a distinction of
the two crimes.
MURDER.
We may adopt Coke's definition of murder for the purpose
of explaining the crime. " When a jDerson of sound memory
and discretion unlawfully killeth any reasonable creature
iq) R. V. Abbott, [1903] 67 J. P. 151.
(r) 45 & 46 Vict. c. 19.
(s) 33 & 34 Vict. c. 23, s. 1.
it) R. V. Mann, [1914] 2 K. B. 107 : 83 L. J. K. B. 648; 110 L. T. 781; 78
J. P. 200: 24 Cox, 140; 30 T. L. E. 310.
(u) 24 & 25 Vict. c. 100, ss. 11-15.
HOMICIDE.
145
in being and under the King's peace with malice afore-
thought, either express or implied " (w).
(a) The offender must be of sound memory and discretion. —
Thus are excluded all idiots, lunatics, and young children,
in accordance with the rules as to capability of committing
crimes which have already been set forth [x). But a person
procuring an idiot, &c., to commit murder, or, indeed, any
crime, is guilty himself of the crime.
(b) Unlawfully killeth, that is, kills without justification
or excuse. — As we have seen, the presumption is against the
accused, and it is for him to purge the act of its felonious
character by proving such justification or excuse.
It is perfectly immaterial what may be the particular form
of death, whether by an act as poisoning, striking, &c., or
an omission such as neglect to provide food. Any voluntary
act and any voluntary and culpable omission, the result of
which is death, may be murder, although the death
is not the immediate result and even although it was
not desired, if it was a probable result — for example,
where a mother hid her child in a pig-sty, where it
was devoured (y). So if one, being threatened and under a
well-grounded apprehension of personal violence which would
endanger his life, does an act which causes his death, as, for
instance, jumps out of a window, he who threatens is answer-
able for the consequences as if he had himself thrown the
deceased out of the window (z). A person may also be guilty
of murder through mere nonfeasance; as if it was his duty
and in his power to supply food to a child in his charge and
unable to provide for itself, and the child died because no
food was supplied (a). But a mere nonfeasance or omission
to act is not culpable unless there is some duty to act (6).
(w) Archbold, .385.
(a;) V. p. 14, et seq.
(y) 1 Hale, P. C. 433.
(z) R. V. Hickman, 5 C. & P. 151; R. v. Pitts, [1842] C. & Mar. 284; Arch-
bold, 837.
(a) R. V. Marriott, [1838] 8 C. & P. 425.
(6) R. V. Smith, 2 C. & P. 448.
C.L. 10
146 HOMICIDE.
It is no defence to show that the deceased was in ill-health
and likely to die when the wound was given (c). Nor is it
a defence that the immediate cause of death was neglect or
the refusal of the party to submit to an operation; though
it would be otherwise if the death were caused by improper
applications to the wound, and not by the wound itself (d).
To make the killing either murder or manslaughter the death
must follow within a year and a day after the wound ar other
cause ; for if the death is deferred beyond that length of
time the law will presume that it arose from some other
cause (e).
It is a rule of long standing that upon merely circum-
stantial evidence a man is not to be convicted of murder or
manslaughter unless the body of the person alleged to have
been killed has been found. But this is not absolutely
necessary where the evidence brought before the jury is
sufficiently strong to satisfy them that a murder has really
been committed (/).
(c) Any reasonable creature in being and under the King's
peace. — Therefore killing a child in its mother's womb is not
murder (g), but it is otherwise if the child is born alive, and
dies from wounds or drugs received in the womb. " Under
the King's peace " excludes only alien enemies who are
actually engaged in the exercise of war (h).
(d) With malice aforethought. — The term " malice afore-
thought," or malice prepense, does not imply any premedita-
tion on the part of the person who kills another. Nor does
it imply the existence of any express and actual malice or
ill-will; a man may be guilty of murder although he had no
desire to kill the person murdered or indeed to kill anyone.
(c) R. V. Martin, [1832] 6 C. & P. 130.
(d) R. v. Holland, [184i] 2 M. & E. 351.
(c) R. V. Dyson. [1908] 2 K. B. 454; 77 L. J. K. B. 813.
(/) Archbold, 833.
(g) But V. p. 164.
(h) Archbold, 832. v. also 24 & 25 Vict. c. 100, s. 9, under which homicide
committed by a British subject upon a foreigner abroad is punishable in our
Courts.
HOMICIDE. 147
Though, however, express malice is not an essential element
of murder, it may be relevant to prove intent, and its
existence may defeat a plea of provocation or self-defence (i).
Malice aforethought occurs in three cases : —
(i) Where the killing is the result of an act done in the
course of committing or attempting to commit a felony.
Thus if A. shoots at B. and misses him but kills C, it is
murder. The modern limitation of this rule has already been
pointed out (Jc).
(ii) Where the killing is the result of an act done in
resisting an officer of justice, whether civil or criminal, in
the execution of his duty, or any person acting in aid of
him. But in such a case the killing is murder only if the
officer or person aiding him is acting with legal authority
and executing his authority in legal manner and the offender
knows of his authority. If any of these requisites is absent
the killing is only manslaughter (Z).
(iii) Where the killing is the result of an unlawful act done
with intent to cause death or grievous bodily harm from
which death is likely to result. Here, as has been already
explained, malice is implied from the fact that the killing
was intentional and without justification or excuse. And,
as has been also pointed out, the law presumes that everyone
intends the natural consequences of his acts. If therefore a
person voluntarily does an unlawful act which ordinarily
causes death, he is presumed to have intended to cause death
and to have acted with malice aforethought. Intent may
also be inferred from the existence of express malice. But
it should be particularly noticed that it is not necessary that
the intent should be to kill or injure the person who is
actually murdered; it is sufficient if there is what is some-
times termed universal or general malice. Thus if A.,
(i) 48 & 49 Vict. c. 69, s. 5, sob-s. 1.
324; V. also post. p. 149.
(k) Ante, p. 143. It would seem, however, that the rule, so limited, ceases to
exist, as the case then falls within (iii).
(I) 48 k 49 Vict. c. 69. s. 5, sub-s. 2.
killing is murder only if violence is used to prevent arrest or to effect a rescue
or escape, not if it occurs accidentally in the course of a struggle with officers
of justice (Ibid., p. 862).
148 HOMICIDE.
intending to injure B., by mistake or accident injures C, lie
is guilty of maliciously injuring C, because both elements
of the offence are present, viz., he has injured C. and his
intent was malicious (m).
On an indictment for murder, the jury may convict the
prisoner of manslaughter, or of an attempt to murder (n),
or of concealment of birth (o). And so a person charged as
accessory after the fact to murder may be convicted as
accessory to manslaughter, if the principal felon be convicted
of manslaughter only (p).
As to the punishment of murder, nothing further need
be said here than that the sentence is death (q), with regard
to which, and its execution, particulars will be given in a
later chapter. Accessories after the fact to murder are liable
to penal servitude to the extent of life (r).
, MANSLAUGHTER.
The unlawful killing of another without malice; two kinds
of manslaughter are distinguished : —
(1) Upon a sudden heat (termed voluntary).
(2) In the commission of an unlawful act (termed in-
voluntary {s)).
(1) Voluntary (so-called). — The distinguishing mark of this
kind of manslaughter is the provocation giving rise to sudden
anger, during which the deed causing death is done. If upon
a sudden affray two persons fight and one of them kills the
(m) R. V. Latimer, 17 Q. B. D. 359; 55 L. J. M. C. 135.
(n) And here the punishment is not limited to the ordinary term of two years'
imprisonment, but may be penal servitude for life, as for a statutory attempt
under 24 & 25 Vict. c. 100, ss. 11—15 (R. v. White).
(o) As to conspiracy to murder, v. p. 107.
(p) R. V. Richards, [1877] 2 Q. B. D. 311; 46 L. J. M. C. 200.
(q) 24 & 25 Vict. c. 100, s. 1.
(r) 24 & 25 Vict. c. 100, s. 67.
(s) The objection to the terms " voluntary " and " involuntary," as opposed
to each other, to denote varieties of the same crime, is obvious. There is no
ftuch thing as an involuntary crime. If the action be not a voluntary one it
is not criminal (v. p. 10). What seems to be meant is that in the one case
death is intended, in the other it is not.
HOMICIDE. 149
other, the former will be guilty of manslaughter only, unless
there are special circumstances which indicate evil design.
But the act will be viewed in the less serious light of man-
slaughter only so long as the outburst of passion continues;
not that the struggle need take place on the spot, for if the
two at once adjourn to another place to fight, it will still
be only manslaughter.
The distinction, where killing occurs in a sudden affray,
between excusable homicide and manslaughter is that in the
former case the accused has done all that he can to avoid
the struggle or its continuation and his Tnotive is self-defence,
in the latter he has not and his motive is a " desire to
fight " (t). In the latter case the killing, being in fact
intended, and not being justified or excused, would be murder
but for the provocation which prevents the proper exercise of
reason (u).
So, also, in other cases of grave provocation, as if one man
pulls another's nose, or is taken in adultery with another's
wife. But here again, on the same grounds, to reduce the
homicide to manslaughter, the blow which is the cause of
death must be inflicted at once, while the provocation is still
exercising its full influence. Otherwise the slaying will be
regarded as a deliberate act of revenge (w). The plea of
provocation will not avail if the provocation was sought for
and induced by the slayer, nor, as has already been stated,
if express malice on his part is shown to exist. Mere words,
however insulting, will not as a rule be considered a sufficient
provocation to reduce homicide from murder to manslaughter,
where the death is caused intentionally, or by a deadly
weapon (x). '
(t) Archbold, p. 845 ; R. v. Knock, 14 Cox, 1.
(m) R. v. Kirkham., 8 C. & P. 115.
(w) R. V. Maddy, 1 Ventr. 158; R. v. Hayward, [1833] 6 C. & P. 157 ; R. v.
Fisher, 8 C. & P. 182.
(x) R. V. Lynch, 5 C. & P. 324; Archbold, 848. But where a wife has unex-
pectedly confessed her adultery to her husband, it has been held that if he at
once kills her this may be manslaughter only, R. v. Rothwell, [1871] 12 Cox,
145; R. V. Jones, [1908] 72 J. P. 215; R. v. Palmer, [1913] 2 K. B. 29; 82
L. J. K. B. 531. In any case, however, this principle applies only to confes-
sions by a wife, not to confessions by a woman with whom the prisoner was
living or to whom he was merely engaged (R. v. Greening, [1913] 3 K. B. 846:
.150 HOMICIDE.
The instrument used when the person is acting under
provocation is also a material consideration. It may be said
that the provocation must be of the gravest nature to render
guilty of manslaughter only one who uses a deadly weapon
or otherwise shows an intention to do the deceased grievous
bodily harm. But a slighter provocation will suffice if the
instrument used is one not likely to cause death, as a stick,
or a blow with the fist. In fact, to reduce the offence to man-
slaughter, the mode of resentment must bear a reasonable
proportion to the provocation (y).
(2) Involuntary (so-called), when the death, not being
intended, is caused (i) in the commission of an unlawful act
not amounting to a felony; or (ii) of an act which, although
it amounted to felony, was nevertheless one which could not
of itself be likely to cause any danger to life (z) ; or (iii) by
culpable negligence. The unlawfulness of the act in which
the accused is engaged is the ground of the homicide being
regarded as manslaughter, and not homicide by misadventure
merely. But if a man commit a mere tort or civil wrong in
consequence of which the death of another is caused, if there
has been no criminal negligence on his part he is not guilty
of manslaughter (a).
Here, again, we may observe that it is immaterial whether
the unlawfulness is in the act itself or in the mode in which
it is carried out. An instance of manslaughter in the com-
mission of an unlawful act is furnished when one person kills
another while the two are playing at an unlawful pastime;
of manslaughter in doing a lawful act in an unlawful
manner — when a workman throws down stones into a street
where persons may but are not likely to be passing.
One form of doing an act in an unlawful manner is
negligence. This consideration very frequently presents itself
83 L. J. K. B. 195; R. v. Palmer, ubi supra), nor to admissions by a person
who has committed adultery with the prisoner's wife (R. V. Birchall, 23 Cox,
579).
iy) R. V. Stedman, [1704] Fost. 292.
(2) V. p. 143.
• (a) R. V. Franklin, [1883] 15 Cox, 163; but v. R. v. Fenton, [1830] 1 Lew.
C. C. 179.
HOMICIDE, 151
in manslaughter. It may be said generally that whatever
constitutes murder when done by fixed design, constitutes
manslaughter when it arises from culpable negligence; for
example, when a near-sighted man drives at a rapid rate,
without having proper control of his horse, and thereby causes
the death of a foot-passenger (6). Again, when a person
without taking proper precautions does an act which is
dangerous, though not unlawful in itself; as, for instance,
where a man shot at a target from a distance of 100 yards
with a rifle which would carry a mile, in the course of which
he killed another person, although at a spot distant 393 yards
from the firing-point, it was held that he was guilty of man-
slaughter (c). A large class of cases is that in which the
death ensues from the treatment of disease. In such cases
the person, whether a medical practitioner or not, who causes
death is not indictable unless his conduct is marked by gross
ignorance or gross inattention (d). Mere neglect on the part
of a parent to provide medical aid for his child of tender years,
in consequence of which his child dies, is not manslaughter,
unless it is proved affirmatively that the death was caused
or accelerated by such neglect; and medical evidence on
behalf of the prosecution that the child's life yrohahly might
have been prolonged or saved by the parent calling in medical
aid is not sufficient evidence to support a conviction (e).
Where the prisoner had charge of a woman who was unable
by illness and pld age to attend to herself, but who provided
for the expenses necessary to maintain both, and her death
was occasioned by the prisoner's neglect to provide her with
the necessaries of life, it was held that the prisoner was
rightly convicted of manslaughter (/). When the negligence
of the prisoner is the " effective " or " proximate " cause of
the death it is no defence that the deceased was also guilty
of negligence which contributed to his own death {g). It
(h) R. V. Grout, [1834] 6 C. & P. 629.
(c) R. V. Salmon, [1880] 6 Q. B. D. 79; 50 L. J. M. C. 25.
(d) R. V. Long, [1830] 4 C. & P. 398.
(/?) R. V. Morby, [1881] 8 Q. B. D. 571 : 51 L. J. M. C. 85 ; v. also p. 181, post
(/) R. V. Instan, [1893] 1 Q. B. 450; 62 L. J. M. C. 86.
ig) R. V. SwindaU, [1846] 2 C. & K. 230; R. v. Jones, [1870] 11 Cox, 544
152 HOMICIDE.
would seem, however, that the prisoner might set up as a
defence that the deceased's own negligence was the proximate
cause of his death {gg).
It is not every act of slight negligence, even though it has
been the cause of death, which will subject a person to an
indictment for manslaughter. The negligence must have been
80 culpable as to have been " criminal," and it is for the jury
to say whether it was of such a degree that the accused ought
to be convicted of manslaughter {h). ■
Manslaughter is a felony, punishable by penal servitude
to the extent of life — or in lieu of, or in addition to, the penal
servitude or imprisonment, a fine may be imposed [i).
Having inquired into the nature of the crimes of murder
and manslaughter, we are now in a position to examine
certain classes of acts and determine by the circumstances
whether they fall under the head of murder, manslaughter,
or excusable homicide.
Killing by fighting : —
(i) Murder. — Deliberately fighting a duel — or after time
for cooling, or under any other circumstances indicating
deliberate ill-will.
(ii) Manslaughter. — In a sudden quarrel where the parties
immediately fight — or where the parties are fighting in an
unlawful amusement.
(iii) Excusable. — In a sparring match with gloves, or other
lawful amusement, fairly conducted. But in the case of a
sparring match there must be no intention to carry it on
until one of the parties is incapacitated by exhaustion or
injury, or the match will be unlawful (k).
Killing by correction : —
(i) Murder. — With weapon likely to cause death, e.g., an
iron bar.
iaa) V Archbold, 856; Dublin, dc. Railway Co. v. Slattery, 3 A. C, at 1166.
(K) R.'v. Markuss, [1864] 4 F. & F. 356; R. v. Doherty, [1887] 16 Cox, 306,
309. V^^
(i) 24 & 25 Vict. c. 100, s. 5.
(k) R. V. Orton, [1878] 14 Cox, 226.
HOMICIDE.
153
(ii) Manslaugliter. — With an instrument not likely to kill,
tliougli improper for use in correction — or where the quantity
of punishment exceeds the bounds of moderation.
(iii) Excusable. — Correcting in moderation a child, servant,
scholar, or criminal entrusted to one's charge.
Killing without intending to kill whilst doing another
act : —
(i) Murder. — If that other act is a felony, and likely in
itself to cause danger.
(ii) Manslaughter. — If that other act is unlawful.
(iii) Excusable. — If that other act is lawful, and not
negligent.
[But see next paragraph.]
Killing whilst doing a lawful hut dangerous act, e.g.,
driving : —
(i) Murder. — If the accused perceived the probability of
the mischief, and yet proceeded with his act.
(ii) Manslaughter. — Where he might have seen the danger
if, as he ought to have done, he had looked before him — or
if, though he previously gave warning, this warning was not
likely to prove entirely effectual, e.g., driving in a crowded
street.
(iii) Excusable. — If he used such a degree of caution as to
make it improbable that any danger or injury would arise
to others.
Killing officers or others engaged in effecting the ends of
justice : —
(i) Murder. — If the officer or other person is acting with
due legal authority, and executing such authority in a legal
manner, the defendant knowing that authority— or, in the
case of a private person interfering, the intention of such
person being intimated expressly.
(ii) Manslaughter. — If any one of these requisites is
absent (Z).
(I) " The guilt of the accused may, under the law as it now stands, depend
entirely upon nice and difficult questions belonging to the civil branch of the
law, such as the technical regularity of civil process or the precise duty of a
minister of justice in its execution." — Broom, C. L. 1044.
154 HOMICIDE.
Killing by officers and others in the execution of their
duty : —
(i) Murder. — If tlie killing happens in the pursuit of a
person not resisting, but fleeing, such person being charged
with a misdemeanour only, or the arrest being only in a
civil suit.
(ii) Manslaughter. — As above, if the death is caused by
means not likely or intended to kill — or if, in an apprehension
for felony, there is no need for the violence used by the
officer.
(iii) Justifiable. — If the officer is carrying out a lawful
sentence; or if the person killed resisted his lawful arrest
in a civil or criminal cause, or was attempting to escape from
custody, or if he fled to avoid an arrest for felony or inflicting
a dangerous wound, or if the death was caused in dispersing
an unlawful assembly or putting down a riot, provided that
in each case the killing was an apparent necessity.
ATTEMPT TO MUBDER.
The Offences against the Person Act, 1861, deals in several
sections with attempts to murder effected in various ways.
The punishment in every case is the same, namely, penal
servitude to the extent of life. The various attempts
specified are the following : —
Administering poison, wounding, or causing grievous
bodily harm, with intent to murder (m).
Attempting to poison, drown, suffocate, or strangle, or
shooting or attempting to discharge loaded arms with like
intent, whether any bodily injury be effected or not (n).
Destroying or damaging any building by gunpowder or
other explosive substance, with like intent (o).
Setting fire to any vessel or its belongings, or casting away
or destroying any vessel, with like intent [p).
Attempting to murder by any other means than those above
specified [q).
(m) 24 & 25 Vict. c. 100, s. 11. (n) Ibid. s. 14.
(o) Ibid. s. 12. (p) Ibid. s. 13.
iq) Ibid. 8. 15. ,
CHAPTER II.
RAPE, ETC.
RAPE.
The offence of having carnal knowledge of a woman against
her will by force, fear, or fraud.
Certain persons cannot be convicted of this crime. An
infant under the age of fourteen is deemed in law to be
incapable of committing, or even, perhaps, of attempting this
offence, on account of his presumed physical incapacity (r).
And this is a presumption which cannot be rebutted by
evidence of capacity in the particular case. Neither can a
husband be guilty of a rape upon his wife. But both a
husband (5) and a boy under fourteen, and even a woman (t)
may be convicted as principals in the second degree, and may
be punished for being present aiding and abetting.
To constitute the offence, the act must be committed with-
out the consent of the female and by force, fear, or fraud.
If, however, she yielded through fear of death or duress, it
is nevertheless rape ; for here the consent is at most
imperfect; or if she were insensibly drunk or asleep, or if
she submitted under a false representation, such as that she
was about to undergo medical treatment, she being ignorant
of the nature of the act (u). So also carnal knowledge of
a woman of weak intellect, and incapable of exercising
judgment so as to give any real consent, is rape, although she
(r) 1 Hale, P. C. 631. See R. v. Watte, [1892] 2 Q. B. 600; 61 L. J. M. C.
187.
is) R. V. Lord Audley, [1631] 3 Cobbett's St. Trials, 402.
(t) R. V. Ram, [1893] 17 Cox C. C. 609.
(«) R. V. Flattery, [1877] 2 Q. B. D. 410; 46 L. J. M. C. 130. In such cases,
however, it may be desirable to proceed under the Criminal Law Amendment
Act, 1885 (48 & 49 Vict. c. 69), s. 3; v. p. 159.
156 RAPE.
made no resistance (w). And a man, who induces a married
woman to permit him to have connection with her by-
personating her husband, is guilty of rape (a;). It is equally
rape though the female is a common prostitute or the con-
cubine of the prisoner; but circumstances of this nature will
probably operate with the jury in their consideration as to
whether there was consent. It is necessary to prove
penetration, but the slightest penetration will be sufficient (y),
and if the prosecution fail to prove this, the prisoner may
nevertheless be convicted of the attempt, or of an indecent
assault.
At almost every trial for this crime the words of Sir
Matthew Hale are recalled : " It is an accusation easy to be
made and hard to be proved, but harder to be defended by
the party accused, though innocent." It will be necessary
to estimate the degree of credibility of the testimony of the
woman who makes the charge. On this point we cannot do
better than remember the words of Blackstone (z). The
credibility of her testimony, and how far she is to be believed,
must be left to the jury upon the circumstances of fact that
concur in that testimony. For instance, if the witness be of
good fame; if she presently discovered the offence (a), and
made search for the offender ; if the party accused fled for it —
these and the like are concurring circumstances which give
greater probability of her evidence. But, on the other side,
if she be of evil fame, and stand unsupported by the testimony
of others; if she concealed the injury for any considerable
time after she had opportunity to complain ; if the place
where the fact was alleged to have been committed was where
it was possible she might have been heard, and she made
(to) In such cases also, owing to the difficulty which sometimes arises of
proving absence of consent (see R. v. Fletcher, [1866] L. R. 1 C. C. R. 39; 35
L. J. M. C. 172), it may be expedient to proceed under 48 & 49 Vict. c. 69,
s. 5, sub-s. 2, V. p. 158. The jury may, however, on an indictment for rape
convict of an offence under this section (v. p. 158), or of an offence under
section 56 of the Mental Deficiency Act (v. p. 159).
(X) 48 & 49 Vict. c. 69, s. 4.
(y) 24 & 25 Vict. c. 100, s. 63, and R. v. Hughes, [1841] 2 Mood. C. C. 190;
9 C. & P. 752.
(z) V. Archbold, 980.
(a) As to evidence of complaints by the prosecutrix, v. p. 394.
RAPE. 157
no outcry — these and tlie like circumstances carry a strong,
but not conclusive, presumption that her testimony is false
or feigned. The prisoner may call evidence to her generally
bad character for want of chastity, or indecency (b), and of
her having had connection with him previously (c), but not
of her having had connection with others. As to the last
point she may be asked the question, but she would probably
not be compelled to answer it; if she denies it, the person
referred to cannot be called to contradict her (d).
Upon the trial of an indictment for rape the prisoner's
wife is a competent witness either for the prosecution or
defence, and without his consent ; but she cannot be compelled
to disclose any communication made to her by him during
their marriage, nor, indeed, to give any evidence against
him (e).
The punishment for this crime, which is a felony, is penal
servitude to the extent of life (/).
CARNALLY ABUSING CHILDREN, LUNATICS, ETC., AND OTHER
OFFENCES AGAINST WOMEN.
The former law on this subject was materially altered by
the Criminal Law Amendment Act, 1885, which provided
that to unlawfully and carnally know any girl under the age
of thirteen years is a felony, punishable to the extent of penal
servitude for life {g) ; and any attempt to have unlawful
carnal knowledge of any girl under the age of thirteen years
is a misdemeanour, punishable by imprisonment for any term
not exceeding two years, with or without hard labour {h).
(h) R. V. Clay, [1851] 5 Cox, 146.
(c) R. V. Riley, [1887] 18 Q. B. D. 481; 16 Cox, 191.
(d) R. V. Holmes, [1871] L. R. 1 C. C. R. 334; 41 L. J. M. C. 12.
(e) 61 & 62 Vict. c. 36, ss. 1 (d), 4; Leach v. R., [1912] A. C. 305; v. p. 367
(/) 24 & 25 Vict. c. 100, s. 48.
(g) 48 & 49 Vict. c. 69, s. 4.
(h) Ibid. A boy under the age of fourteen cannot be convicted of the full
offence, nor probably even of the attempt. But he may be convicted under sec-
tion 9 of an indecent assault, although the indictment charges him with the
felony. R. v. Waite, [1892] 2 Q. B. 600; 61 L. J. M. C. 187; R. v. Williams
[1893] 1 Q. B. 320; 62 I.. J. M. C. 69.
158 UiSJl> AWFUL CAllNAL KNOWLEDGE.
In either case, if the offender is under sixteen years of age,
the Court may, instead of imprisonment, order him to be
whipped. Again, to unlawfully and carnally know, or
attempt to have unlawful carnal knowledge of, any girl aged
between thirteen and sixteen years, is also a misdemeanour,
punishable like the last-mentioned offence; but the accused
must be acquitted if he satisfies the jury that he had reason-
able cause to believe that the girl was sixteen years old (t).
Although the girl may consent or even incite to the
commission of the offence, she cannot be convicted of aiding
or abetting it {h). Having, or attempting to have, unlawful
carnal knowledge of any female idiot, or imbecile woman or
girl, under circumstances which do not amount to rape, but
which prove that the offender knew at the time of the com-
mission of the offence that the woman or girl was an idiot
or imbecile, is a misdemeanour punishable in the same
way (Z). Again, for the owner or occupier, or any person
assisting in the management of premises, to induce or suffer
any girl to resort to such premises for the purpose of being
carnally known by any man, is, if the girl is under the age of
thirteen years, a felony, punishable hj penal servitude to
the extent of life; and if she is between thirteen and sixteen
years of age, a misdemeanour, punishable by imprisonment
for two years with or without hard labour, unless it be shown
that the accused had reasonable cause to believe that the girl
was sixteen years of age {'ni). Any person who, having the
custody, charge, or care of a girl under the age of sixteen,
causes or encourages the seduction or prostitution or unlawful
carnal knowledge of the girl commits a misdemeanour and
is liable to imprisonment for two years (n).
Under the Criminal Law Amendment Act, 1885, the jurv
may on the trial of an indictment for rape, or for any offence
made felony by section 4 thereof, convict the accused of the
(t) 48 & 49 Vict. c. 69, s. 5, sub-s. 1.
(fe) R. V. Tyrrell, [1894] 1 Q. B. 710; 63 L. J. M. C. 58.
{I) 48 & 49 Vict. c. 69, s. 5, sub-s. 2.
(m) Ihid. s. 6; V. R. v. Webster, [1885] 16 Q. B. D. 134: .55 L. J. M. C. 63;
also T>. 182.
(n) 8 Edw. VII. c. 67, s. 17; 10 Edw. VII. & 1 Geo. V. c. 25, s. 1.
UNLAWFUL CARNAL KNOWLEDGE. 159
misdemeanours mentioned in sections 3, 4, or 5 of the Act,
or of an indecent assault, if in their opinion the accused is
guilty of such offence (o), or of incest or of an offence under
section 56 (i) (a) of the Mental Deficiency Act, 1913. The
misdemeanours just referred to are: —
(a) Procuring the defilement by any person of a woman or
girl by threats, or by false representations, or by administer-
ing drugs (p).
(b) Attempting to have unlawful carnal knowledge of a
girl under thirteen years of age {q).
(c) Defilement of a girl between thirteen and sixteen years
of age (r), or of any female idiot or imbecile, under circum-
stances not amounting to rape, but showing that the offender
knew of the idiocy or imbecility (s).
It should be observed that a prosecution under the Act,
for carnally knowing a girl between the ages of thirteen and
sixteen years or of an idiot or imbecile woman, or for attempt-
ing to commit such an offence, must be commenced within
six months after the commission of the offence (t) ; and no
person can be convicted of those offences upon an indictment
for rape or for any offence made felony by section 4 unless
the prosecution was commenced within that time (u).
In addition to the above the following acts have by the
same Act been made misdemeanours, punishable by imprison-
ment, with or without hard labour, for two years, and in the
case of a male, with a whipping (w), viz. : —
(1) To procure or attempt to procure any girl or woman,
under twenty-one years of age, not being a common
prostitute, or of known immoral character, to have
unlawful carnal connection with another person,
either within or without the King's Dominions (;ir).
(o) 48 & 49 Vict. c. 69, s. 9.
(p) Ibid. 8. 3; punishment, imprisonment, two years, and if male, whipping.
provided, in the case of false representations, the woman is not of known
immoral character.
(q) Ibid. s. 4, p. 157.
(r) Ibid. 8. 5, sub-s. 1, p. 158.
(s) Ibid. 8. 5, sub-s. 2, p. 158.
(t) Ibid. 8. 5, as amended bv 4 Edw. VII. c. 15, s. 27.
(u) R. V. Cotton. [1896] 60\T. P. 824.
(tc^ 2 & 3 Geo. V. c. 20, s. 3.
(x) 48 & 49 Vict. c. 69, s. 2, sub-s. 1.
160 UNLAWFUL CAENAl KNOWLEDGE.
(2) To procure or attempt to procure any woman or girl,
either within or without the King's Dominions, to
become a common prostitute (y).
(3) To procure or attempt to procure any woman or girl
to leave the United Kingdom, with intent that she
may become the inmate of or frequent a brothel
elsewhere (z).
(4) To procure or attempt to procure any woman or girl
to leave her usual place of abode in the United
Kingdom (such place not being a brothel), with
intent that she may, for the purposes of prostitution,
become the inmate of or frequent a brothel within
or without the King's Dominions (a).
The Criminal Law Amendment Act, 1885, also provides
that in cases of unlawful procuration, and defiling women
by means of false pretences or the administration of drugs,
or attempting to commit those offences, the accused person
shall not be convicted on the evidence of one witness, unless
such witness be corroborated in some material particular
by evidence implicating the accused (6).
It should be observed that in all proseciitions under this
Act, and also in the case of indecent assault, and offences
within the Mental Deficiency Act, 1913, mentioned later, the
wife or husband of the accused person may be called as a
witness not only for the defence but also for the prosecution,
and without the consent of the person charged (c). But such
a witness cannot be compelled to give evidence for the
prosecution, nor, if he or she does' so, to disclose any com-
munication made to her or him by the accused during their
marriage (d).
All misdemeanours under this Act are subject to the pro-
visions of the Vexatious Indictments Act (e).
(y) 48 & 49 Vict. c. 69, s. 2, sub-s. 2.
(z) Ibid, sub-s. 3; 2 & 3 Geo. V. c. 20, s. 2.
(a) 48 & 49 Vict. c. 69, s. 2, sub-s. 3.
(h) Ibid. s. 2, sub-s. 4.
(c) 61 & 62 Vict. c. 36, s. 4.
(d) Ibid. s. 1 (d); Leach v. R., [1912] A. C. 305; v. p. 367.
(e) 48 & 49 Vict. c. 69, s. 17 ; v. p. 330.
UNLAWFUL CARNAL KNOWLEDGE. 161
If any person employed in an institntion for lunatics or
any person having the charge of, or any attendant on, any
single lunatic patient, carnally knows any female under
treatment as a lunatic in such institution, or as a single
patient, or attempts to commit that offence, he is guilty of a
misdemeanour, and is liable to imprisonment with hard labour
for two years. The consent of the lunatic will be no defence
to such a charge (/).
To commit an indecent assault upon any female is a mis-
demeanour, punishable by imprisonment not exceeding two
years (^r).
It is no defence to a charge of indecent assault on a young
person under the age of thirteen to prove that he or she
consented to the act of indecency (h).
The Mental Deficiency Act, 1913 (3 & 4 Geo. V. c. 28),
s. 56, makes certain provisions of the same kind for the pro-
tection of female " defectives." It will be observed that these
provisions to some extent overlap those of the Criminal Law
Amendment Act, 1885, relating to female idiots and im-
beciles above set forth.
Any person who (1) unlawfully and carnally knows or
attempts to have carnal knowledge of a female defective
under care or treatment in such an institution or approved
home as is mentioned in the Act, or whilst out on licence or
under guardianship under the Act (i),
(2) Or procures or attempts to procure a female defective
to have unlawful connection, whether within or without the
King's Dominions, with any person.
(3) Or causes or encourages her prostitution whether
within or without the King's Dominions,
(/) 53 Vict. c. 5, s. 324.
(g) 24 & 25 Vict. c. 100, s. 52.
(h) 43 & 44 Vict. c. 45, s. 2.
^») If on the trial of an indictment for rape the jury are satisfied that the
accused is guilty of the above offence but are not satisfied that he is guilty of
rape they may acquit him of rape and convict him of the above offence ; s. 56,
sub-8. 5.
C.L. 11
162 RAPE.
(4) Or who being the owner or occupier or assisting in
the management or control of premises induces or suffers
any female defective to resort to or be in such premises for
the purpose of being carnally known by any man,
(5) Or who with such intent takes or causes to be taken
a female defective out of the possession and against the
will of her parent or any other person having the lawful
care or charge of her,
is guilty of a misdemeanour and is liable on conviction on
indictment to imprisonment for two years, unless he proves
that he did not know, and had no reason to suspect, that
she was a defective. Upon a trial for any of the above
offences the wife or husband of the accused is a competent
but not compellable witness, either for the prosecution or
the defence, and without the consent of the person
charged (k).
In the case of an indecent assault upon a defective of any
age consent will afford no defence if the accused knew or had
reason to suspect that the person assaulted was a defective
within the meaning of the Act (Z).
Defectives for the purposes of the Act are : —
(i) Idiots, i.e., persons so deeply defective in mind from
birth or an early age as to be unable to guard themselves
from common dangers.
(ii) Imbeciles who from birth, etc., have been so mentally
defective as to render them incapable, though they are not
idiots, of managing themselves or their affairs, or, if children,
being taught to do so.
(iii) Feeble-minded persons, i.e., persons in whose case the
mental defectiveness which has existed from birth, etc., does
not amount to imbecility but is so pronounced that they
require care and control for their own protection or the pro-
tection of others, or, if children, appear permanently
incapable of receiving benefit from instruction in ordinary
schools.
(k) Section 56, sub-s. 6; 61 & 62 Vict. c. 36, s. 4; v. p. 367.
(I) Section 66, sub-s. 3.
INCEST. 163
(iv) Moral imbeciles, i.e., persons who from an early age
display permanent mental defect coupled witli strong vicious
or criminal propensities on which punishment has had little
or no deterrent effect {m).
UNNATURAL CRIMES.
To commit the crime against nature, with mankind or
with any animal, is a felony, punishable by penal servitude to
the extent of life [mTn). The evidence is similar to that in
rape, with two exceptions — (i) The consent of the person upon
whom it was perpetrated is no defence, (ii) Both parties, if
consenting, are equally guilty; but if one of the parties is a
boy under the age of fourteen years, it is felony in the other
only.
To attempt to commit the crime, or to make an assault
with intent to commit the same, or to make any indecent
assault upon a male person, is a misdemeanour, punishable
by penal servitude to the extent of ten years [n).
By the Criminal Law Amendment Act, 1885, for a male
person, either in public or private, to commit or be a party
to the commission, or to procure or attempt to procure the
commission, by any male person, of any act of gross indecency
with another male person, is a misdemeanour, punishable by
imprisonment for not more than two years, with or without
hard labour (rm).
INCEST.
A male person who has carnal knowledge of a female, who
is to his knowledge his grand-daughter, daughter, sister, or
mother, is guilty of a misdemeanour and liable to penal
servitude for seven years, or if the female is under the age
of thirteen years, for life. It is immaterial that the carnal
(m) Section 1.
{mm) 24 & 25 Vict. c. 100, s. 61 ; 54 & 55 Vict. c. 69, s. 1.
(n) 24 & 25 Vict. c. 100, s. 62. As to obtaining money by threatening to
accuse of this crime, v. pp. 87-88.
(nn) 48 & 49 Vict. c. 69, s. 11.
164 ABORTION.
knowledge was with the consent of the female person. An
attempt by a male person to commit the offence is also a mis-
demeanour punishable by imprisonment with or without hard
labour for two years. Upon a conviction for either of these
offences upon a female under twenty-one years of age the
Court may divest the offender of all authority over such
female and may appoint any person to be her guardian during
minority (o).
Similarly a female of or above the age of sixteen years
who, with consent, permits her grandfather, father, brother,
or son (knowing him to be such) to have carnal knowledge
of her commits a misdemeanour and may be sentenced to
penal servitude for seven years {ji).
It is equally an offence whether the brother or sister be
the half-brother or half-sister of the offender, and whether
the relationship is illegitimate or traced through lawful
wedlock [q) .
The provisions of the Vexatious Indictments Act (r) apply
to prosecutions for incest. A Court of Quarter Sessions has
no jurisdiction to try an offence of this kind, and all proceed-
ings for incest or attempted incest must be held in camera (s).
No prosecution for incest, except when it is undertaken
by the Director of Public Prosecutions, can be commenced
without the sanction of the Attorney-General (i).
ATTEMPTS TO PROCURE ABORTION.
Three classes of persons may be guilty of crimes under
this heading. The woman herself, the person who procures
or supplies the drug, &c., any other person assisting.
For a woman being with child, witli intent to procure
her own miscarriage, to administer to herself any poison
(o) 8 Edw. VII. c. 45, s. 1. As to the nature of the e-vidence which is
admissible in support of a charge of incest, v. R. v. Ball, [1911] A. C. 47. The
husband or wife is a competent but not a compellable witness for the prosecu-
tion, Leach v .R., [1912] A. C. 305; v. p. 367.
(p) 8 Edw. VII. c. 45, s. 2.
(q) Ibid. 8. 3.
(r) 22 & 23 Vict. c. 17, v. p. 330.
(s) 8 Edw. VII. c. 45, ss. 4, 5. As to conviction for other offences, v. p. 409.
(t) Ibid. 8. 6.
CONCEALMENT OF BIRTH, 165
or other noxious thing, or to use any instrument or other
means; or
For any person to do the same with intent to procure the
miscarriage of any woman, whether she be with child or not,
is a felony, punishable by penal servitude to the extent of
life (u). It is not necessary that the drug administered
should produce miscarriage or even have a tendency to do so ;
it is enough if it is "noxious," and is given with the intent
charged (w) ; and even if it is not noxious or calculated to
produce the desired effect, the parties may be convicted of
"attempting" to procure abortion (x).
For any person to procure or supply poison or other noxious
thing, or any instrument or other thing, knowing that the
same is intended to be unlawfully used with intent to procure
the miscarriage of a woman, whether she be with child or not,
is a misdemeanour, punishable by penal servitude to the
extent of five years (y).
CONCEALMENT OF BIRTH.
If a woman is delivered of a child, every person who by
any secret disposition of the dead body of the child, whether
it died before, at, or after its birth, endeavours to conceal
the birth thereof, is guilty of a misdemeanour, punishable
by imprisonment not exceeding two years. A person tried
for and acquitted of murder of a child may be convicted
upon the same indictment of concealment of birth, if the
facts justify that conclusion (z).
The denial by the defendant of the. birth is not sufficient
to constitute the offence. There must have been some act of
disposal of the body after the child was dead (a). In order
to convict a woman of attempting to conceal the birth of
her child, a dead body must be found and reasonably iden-
tified as that of the child of which she is alleged to have
(u) 24 & 25 Vict. c. 100, s. 58.
(w) R. V. Cramp, [1880] 5 Q. :^ D. 307; 49 L. J. M. C. 44.
(x) R. V. Brawn, [1899] 63 J. P. 790.
(y) 24 & 25 Vict. c. 100, s. 59.
(z) 24 & 25 Vict. c. 100, s. 60.
(a) R. V. Turner, [1839] 8 C. & P. 755.
166 ABDUCTION.
been delivered (&). It will be noticed that tbe offence may
be committed by others, and not only by the mother.
ABDUCTION.
We may distinguish four classes of cases : —
(i) Of a woman on account of her fortune.
Where a woman of any age has any interest, present or
future, in any real or personal estate, or is a presumptive
heiress, or presumptive next of kin to any one having such
interest — (i) whosoever, from motives of lucre, takes away or
detains such woman against her will, with intent himself,
or to cause some other person, to marry her, or have carnal
knowledge of her — or (ii) whosoever fraudulently allures,
takes away, or detains such woman, being under the age of
twenty-one, out of the possession or against the will of her
father or mother, or other person having the lawful care or
charge of her, with like intent, is guilty of felony, punishable
by penal servitude to the extent of fourteen years. The
convicted person is also rendered incapable of taking any
interest in her property; and if he is married to her, the
property will be settled as the Chancery Division, upon an
information at the suit of the Attorney-General, appoints (c).
The intent to marry or have carnal knowledge only need be
proved, not the carrying out of that intent.
(ii) By force, with intent to marry.
The same punishment attends the forcible taking away
or detaining against her will a woman of any age with
intent to marry or carnally know her, or cause her to be
married or carnally known by any other person [d).
(iii) Of an unmarried girl under the age of eighteen years,
with intent to have carnal knowledge.
Whoever, with intent that any unmarried girl under the
age of eighteen years shall be unlawfully and carnally known
by any man, takes such girl out of the possession and against
(b) R. V. Williams, [1871] 11 Cox, 684.
(c) 24 & 25 Vict. c. 100, s. 53.
(d) Ihid. s. 54.
ABDUCTION. 167
the will of her father, or mother, or other person having the
lawful care or charge of her, is guilty of a misdemeanour,
and liable to imprisonment for not more than two years, with
or without hard labour. It is a defence that the person
charged had reasonable cause to believe that the girl was not
under the age of eighteen (e).
It is also a misdemeanour, punishable in like manner, to
detain any woman or girl against her will, either in a brothel
or in any premises, with intent that she may be unlawfully
and carnally known by any man (/).
Withholding her wearing apparel or other property, or
using threats of legal proceedings against her if she should
take away with her any wearing apparel lent or supplied to
her, constitutes a detention under this Act (g).
(iv) Of a girl under sixteen years of age.
To unlawfully take or cause to be taken any unmarried
girl under the age of sixteen out of the possession and against
the will of her father or mother, or of any other person
having the lawful care or charge of her, is a misdemeanour,
punishable by imprisonment not exceeding two years (Ji).
If the girl leaves her father, &q,., without any persuasion
on the part of the defendant, and then goes to him, he is
not within the statute even though he conceals her and
persuades her not to return {i). Nor is he, if he did not
know, and had no reason to know, that she was under the
lawful charge of her father or other person; and it is
necessary for the prosecution to give some evidence from
which such knowledge may properly be assumed [h). A
mere absence for a temporary purpose and with the inten-
tion of returning does not interrupt the possession of the
father, &c. It is no defence that the defendant did not know
her to be under sixteen, or might suppose from her appearance
that she was older, or even that he believed upon reasonable
(c) 48 & 49 Vict. c. 69, s. 7.
(/) Ihid. s. 8.
(g) Ibid.
(h) 24 & 25 Vict. c. 100, s. 65.
(i) R. V. Olifier, [1866] 10 Cox, 402; R. v. Jarvis. 20 Cox. 249.
(fe) R. V. Hibbert, [1869] L. R. 1 C. C. R. 184; 38 L. J. M. C. 65.
168 CHILD-STEALING, ETC.
grounds that she was over that age (Z), A taking by force is
not necessary to constitute the offence. It is immaterial
whether or not there was any bad motive (m), or whether
the girl consented to or suggested the elopement, if the de-
fendant persuaded her or actively assisted her in carrying it
out (n), but if she suggested it, and the defendant merely
yielded to her suggestion without taking any active part in
the matter, he would be entitled to an acquittal (o). A
woman may be convicted of this offence (2^).
In all the above cases of abduction the husband or wife of
the accused is a competent but not compellable witness for
the prosecution or defence, even without the consent of the
person charged; but such a witness cannot be compelled to
disclose any communications made to him or her by the
accused during their marriage (q).
CHILD-STEALING, ABANDONING, ETC.
To unlawfully, either by force or fraud, lead or take away,
or decoy or entice away, or detain a child under the age of
fourteen years, with intent to deprive the parent, or other
person having lawful care or charge, of the possession of
the child, or with .intent to steal any article upon or about
the child, or, with any such intent, to receive or harbour
any such child, knowing the same to have been st) led
away, &c., is a felony, punishable by penal servitude to the
extent of seven years. But persons claiming any right to
the possession of the child, or its mother or father if it is
illegitimate, do not fall within the statute (r). It is not
necessary that the force or fraud should have been practised
upon the child, as the case is within "the statute if force or
fraud is employed against the parent or guardian (s),
(I) R. V. Prince, [1875] L. E. 2 C. C. E. 154; 44 L. J. M. C. 122.
(m) R. V. Booth, [1872] 12 Cox, 231.
(n) R. V. Mankletow, [1853] 22 L. J. M. C. 115.
(0) R. V. Jarvis, 20 Cox, 249.
(p) R. V. Handley, [1859] 1 F. & F. 648.
(q) 61 & 62 Vict. c. 36, ss. 1 (d) and 4.
(r) 24 & 25 Vict. c. 100, s. 56.
is) R. V. Bellis, [1893] 62 L. J. M. C. 155; overruling R. v. Barrett, [1885]
15 Cox, 658.
KAPE. 169
To unlawfully abandon or expose any cliild under the age
of two years in such a manner that its life is endangered
or its health is, or is likely to be, permanently injured, is a
misdemeanour, punishable by penal servitude to the extent
of five years (t).
it) 24 & 25 Vict. c. 100, s. 27 ; v. B. v. Falkingham, [1870] L. K. 1 C. C. K.
222; 39 L. J. M. C. 47 ; see also 8 Edw. Vn. c. 67, s. 12, post, p. 180.
CHAPTER III.
ASSAULTS, ETC.
Under this head we shall consider all the remaining'
offences against the person.
COMMON ASSAULT.
An assault is an attempt or offer to do a corporal hurt to
another, even without touching him, as if one lifts up his
cane, or his fist, in a threatening manner, at another; or
strikes at him, but misses him; this is an assault. Other
instances are striking at a man with or without a weapon,
or presenting a gun at him at a distance to which the gun
will carry; or pointing a pitchfork at him, standing within
the reach of it; or any other such like act done in an angry,
threatening manner. It will be noticed that there need not
be an actual touching of the person assaulted. But mere
words never amount to an assault (u).
The legal idea of an assault is so wide that it includes a
variety of offences which do not at first sight seem to be
assaults, at least in the popular signification of the term;
for example, putting a child into a bag, hanging it on some
palings, and there leaving it (w). And indeed it was held
that detaining a child at a board school, after the regular
school hours, and preventing such child from leaving the
school, for not learning "home lessons" which the master
had directed the child to learn, but which the master had no
power under the Elementary Education Acts to do, amounted
to a criminal assault (^).
(m) Archbold, 892.
(to) R. V. Marsh, [1844] 1 C. & K. 496.
(x) Hunter v. Johnson, [1884] 53 L. J. M. C. 182.
.ASSAULTS, ETC. 171
A battery is not necessarily a forcible striking with the
hand or stick or the like, but includes every touching or
laying hold (however trifling) of another person, or his
clothes, in an angry, revengeful, rude, insolent, or hostile
manner; for example, jostling another out of the way (y).
Thus, if a man strikes at another with a cane, or fist, or
throws a bottle at him, if he miss, it is an assault; if he hit,*
it is a battery. Every battery includes an assault.
As a rule, consent on the part of the complainant, if he
is a rational person, deprives the act of the character of an
assault, unless, indeed, non-resistance has been brought about
by fraud (z). But the fact of consent will be immaterial
where the alleged assault is of such a nature that its infliction
is injurious to the public as well as to the person injured,
or involves an actual breach of the peace. Thus, the
principals at a prize fight, and all persons aiding and abetting
them, are guilty of an assault (a).
A common assault may also be the subject of a civil action
for damages; and the party injured may either prosecute or
bring his action first. The Court will not, however, pass
judgment during the pendency of a civil action for the same
assault (b), the reason obviously being that otherwise the
issue of the civil action might be prejudiced. And, in certain
cases (c) the fact that a charge of assault or battery has
already been disposed of summarily by justices is a bar to
any civil proceedings for the same cause.
A common assault — that is, a mere assault which may or
may not have proceeded to a battery — is a misdemeanour,
punishable by imprisonment not exceeding one year (d). But
the justice of the case is often more adequately met by
compensation to the person injured. Therefore, with the
assent of the prosecution, if the circumstances appear to
(y) Archbold, 893; v. Cownrd v. Baddeley, [1859] 4 H. & N. 478.
(z) Except in the case of an indecent assault on a child under thirteen years
of age; v. 43 & 44 Vict. c. 45, s. '2; also the judgments of Wills and Stephen,
JJ., in R. V. Clarence, [1889] 22 Q. B. D. 23; 68 L. J. M. C. 10.
(a) R. V. Coney, [1882] 8 Q. B. D. 534; 61 L. J. M. C. 66.
(6) R. V. Mahon, [1826] 4 A. & E. 575.
(c) V. pp. 173. 458.
(d) 24 & 26 Vict. c. 100, s. 47.
172 ASSAULTS, ETC.
warrant that course, the Court may allow the defendant to
plead guilty, and inflict upon him a merely nominal fine, on
the understanding that he shall make a compensation to the
prosecutor (e).
Common assaults are often disposed of by the magistrates
at Petty Sessions (/). A Court of summary jurisdiction has,
'however, no power to convict of a common assault unless the
complaint to the Court is made by the party aggrieved, or
some one on his behalf, but this does not apply to aggravated
assaults (g).
A recent statute (h) has much extended the power which
the Court possessed utider the Matrimonial Causes Act, 1878,
of making an order having the effect of a decree for a judicial
separation in a case of aggravated misconduct by a husband
towards his wife.
It is now provided that a married woman whose husband
has been convicted suvimarily of an aggravated assault upon
her, or has been convicted upon indictment of any assault
upon her, and sentenced to a fine of more than £5 or to im-
prisonment for a term not exceeding two months, or whose
husband shall have deserted her or been guilty of persistent
cruelty to her, or of wilful neglect to provide reasonable
maintenance for her or her infant children, and shall thus
have caused her to live apart from him [or whose husband
is a habitual drunkard (z)], may apply to a Court of summary
jurisdiction, or to the Court before whom her husband has
been convicted on indictment, for an order under the Act {k).
The Court may thereupon make an order having the effect
of a judicial separation, and may also give to the wife the
legal custody of the children of the marriage while under the
age of sixteen, and order the husband to pay her for
(e) R. V. Roxburgh, ri871] 12 Cox, 8.
(/) See post, pp. 457, 458.
ig) Nicholson v. Booth, [1888] 57 L. J. M. C. 43; but the defendant may be
committed for trial and convicted on indictment although the party agjjrieved
has not made complaint, R. v. Gaunt, [1895] 73 L. T. 585; 18 Cox, C. C.210.
(h) 58 & 59 Vict. c. 39.
(i) 2 Edw. VII. c. 28. s. 5.
(fc) 58 & 59 Vict. c. 89, s. 4.
ASSAULTS, ETC. 173
maintenance a sum not exceeding £2 per week (I). An order
cannot be made under this Act if it is proved that the wife
has committed adultery, unless the husband has condoned or
connived at, or by his wilful neglect or misconduct conduced
to, such adultery; and if the wife, after the making of
the order, either commits adultery or voluntarily resumes
cohabitation with her husband the order is to be dis-
charged (vi). If the Court thinks that the matter would be
more conveniently dealt with by the High Court it may refuse
to make an order (n). A right of appeal is given to the
Probate, Divorce, and Admiralty Division of the High
Court (o).
There is no similar provision in favour of the husband
where the wife has been cruel to or has deserted him, but
if he can show that she is an habitual drunkard he can
obtain from a Court of summary jurisdiction an order
having the effect of a decree for judicial separation and
making provision for the custody of the children, and a
weekly allowance to the wife for maintenance, and the Court
may direct her to be sent to a home for inebriates (p).
The accused, under the plea of not guilty, may prove
(i) that the facts of the case do not amount to an assault or
battery, as, e.g., that there was consent to the acts complained
of; or (ii) that he was justified or excused. He may also
specially plead the statutory defence of previous acquittal or
conviction by justices (q). As to matters of justification or
excuse it may be stated generally that the same facts which
would excuse a homicide on the ground of misadventure are
a good defence upon an indictment for a battery. Other
defences are, that it was committed merely in self-defence,
or in the proper administration of moderate correction, or
in the execution of public justice, or in some lawful game (q).
So much for common assaults; we have now to deal with
those of a more serious character.
(I) Ibid. 8. 5.
(to) Ibid. 88. 6, 7.
(n) Ibid. 8. 10.
(o) Ibid. 8. 11.
(p) 2 Edw. VIT. c. 28, s. 5.
(q) Archbold, 895; see also post. p. 458.
174 ASSAULTS, ETC.
ACTUAL AND GRIEVOUS BODILY HARM.
If the assault occasions actual bodily harm, and the in-
dictment so alleges, the punishment is penal servitude to the
extent of five years (r) for the misdemeanour. Actual bodily
harm will include any hurt or injury calculated to interfere
with the health or comfort of the prosecutor; it need not be
an injury of a permanent character (s). The communication
by the prisoner of a venereal disease to his wife is not
assaulting her, nor does it amount to inflicting upon her
actual bodily harm within the meaning of the Act (t).
Unlawfully and maliciously wounding or inflicting any
grievous bodily harm upon any person, with or without any
weapon or instrument, is a misdemeanour, punishable by
penal servitude to the extent of five years (w). If any person
(a) wound, or cause grievous bodily harm to, (b) shoot at,
or (c) attempt to shoot at any other person, with intent in
either case to (i) maim, (ii) disfigure, or (iii) disable any
person, or (iv) to do some other grievous bodily harm to him,
or (v) to resist or prevent the lawful apprehension of any
one, he is guilty of a felony, punishable by penal servitude
to the extent of life {w).
To constitute a wounding, the continuity of the skin must
be broken. The nature of the instrument is immaterial,
whether it be a stab by a knife, a kick, or a gunshot
wound, &c. [x).
To Tnaim is to injure any part of a man's body, which may
render him less capable of fighting. The injury is termed
mayhem.
The term " disfigure " explains itself. To disable refers to
the causing of a permanent and not merely a temporary
disablement [y).
(r) 24 & 25 Vict. c. 100, s. 47.
(s) Archbold, 893.
(t) R. V. Clarence, [1889] 58 L. J. M. C. 10; 22 Q. B. D. 23.
(m) 24 & 25 Vict. c. 100, s. 20.
(w) Ibid. s. 18.
(x) R. V. Wood, [1830] 1 Mood. C. C. 278; R. v. Briggs, [1831], Ibid. 318.
iy) R. V. Boyce, [1824] 1 Mood. C. C. 29.
ASSAULTS, ETC. .175
The grievous bodily harm need not be either permanent or
dangerous, so long as it seriously interferes with health or
comfort (z).
The intent can of course only be proved by presumptive
evidence gathered from the facts of the case : but here, as
always, it will be presumed that the person intended the
natural consequences of his acts. The intent need not be to
maim, &c., the particular person who is injured, or indeed
any particular person; thus, if a person wounds A. while
intending to inflict grievous bodily harm on B., or even
while doing an unlawful act as a mere piece of foolish
mischief, provided that act is one likely to injure others, he
is guilty of wounding with intent, &c. (a).
ASSAULT WITH INTENT TO COMMIT A FELONY.
This crime is a misdemeanour, punishable with imprison-
ment not exceeding two years. If the intent cannot be
proved, the defendant may be convicted of a common
assault (b).
ATTEMPT TO CHOKE, ETC., WITH INTENT, ETC.
Whosoever attempts to choke, suffocate, or strangle any
other person, or by any means calculated to choke, &c.,
renders any other person insensible, unconscious, or incapable
of resistance, with intent to enable himself or any other
person to commit, or assist in committing, any indictable
offence, is guilty of felony, and punishable with penal
servitude to the extent of life, with or without whipping in
addition (c).
With like intent, to apply, or administer, or cause to be
taken, or to attempt to administer, &c., or to attempt to
(2) V. R. V. Ashman, [1858] 1 F. & F. 88.
(a) R. V. Martin, [1881] 8 Q. B. D. 54; 51 L. J. M. C. 36; R. v. Latimer,
[18861 17 0. B. D. 359: 55 L. J. M. C. 135.
(b) 24 & 25 Vict. c. 100, s. 38.
(c) Ibid. B. 21; 26 & 27 Vict. c. 44.
176 ASSAULTS, ETC.
cause to be administered, &c., any chloroform, laudanum, or
other stupefying or overpowering drug, matter^ or thing, is
a felony punishable in the same way, with the exception of
the whipping (d).
ADMINISTERING POISON, ETC.
To maliciously administer, &c., any poison, or other
destructive or noxious thing, so as thereby to endanger life
or to inflict grievous bodily harm, is a felony punishable by
penal servitude to the extent of ten years (e). If the ad-
ministering, though it does not so endanger life or inflict
harm, is with intent to injure, aggrieve, or annoy the person,
the offence is a misdemeanour, punishable by penal servitude
to the extent of five years (/). A person indicted for the first
of these offences may be found guilty of the second {g).
INJURING BY EXPLOSIVE OR CORROSIVE SUBSTANCES.
By explosion of gunpowder or other explosive substance,
to maliciously burn, maim, disfigure, disable, or do any
grievous bodily harm to any person, is a felony, punishable
by penal servitude to the extent of life (h). The same
punishment is awarded for causing any gunpowder, or other
explosive substance, to explode, or sending or delivering to,
or causing to be taken or received by any person, any
explosive or other dangerous or noxious thing, or putting or
laying at any place, or throwing at or upon or otherwise
applying to any person any corrosive fluid or any destructive
or explosive substance, with intent to burn, maim, disfigure,
or disable, or do any grievous bodily harm to any person,
and this whether any bodily injury be effected or not (i). If
(d) 24 & 25 Vict. c. 100, s. 22.
(e) Ibid. 8. 23.
(/) Ibid. 8. 24.
(g) Ibid. s. 25.
{h) Ibid. 8. 28.
(0 Ibid. s. 29.
ASSAULTS, ETC. 177
the gunpowder or other explosive substance is placed, or
thrown in, upon, or near any building, ship, or vessel, with
intent to do any bodily injury to any person, whether such
purpose be effected or not, the offender is guilty of a felony,
punishable by penal servitude to the extent of fourteen
years (k).
ENDANGERING SAFETY OF RAILVTAY PASSENGERS.
The following acts are felonious, punishable by penal
servitude to the extent of life, and in case of a male under
sixteen by whipping : —
(i) Unlawfully and maliciously to put or throw upon or
across any railway any wood, stone, or other thing; (ii) to
take up, remove, or displace any rail, sleeper, or other thing
belonging to a railway; (iii) to move or divert any points or
other machinery belonging to any railway; (iv) to make,
show, hide, or remove any signal or light upon or near to
any railway; (v) to do or cause any other thing to be done
with intent to endanger the safety of passengers (Z) or with
intent to obstruct, injure, or destroy any engine, &c. (m) ; or
(vi) to throw against or into any railway engine, carriage, or
truck, any wood, stone, or other thing, with intent to injure
or endanger the safety of any person in the train (n). If
committed by a child or young person, these offences may be
dealt with summarily and punished in one of the ways
specially provided for the punishment of such persons (o).
It is a misdemeanour, punishable with imprisonment not
exceeding two years, by any unlawful act, or by any wilful
omission or neglect, (i) to endanger the safety of any person
conveyed or being in or upon a railway, or to aid or assist
therein (p); (ii) to obstruct any engine, &c., or aid or assist
therein (q).
(k) Ibid. 8. 30.
(I) 24 & 25 Vict. c. 100, s. 32.
(m) 24 & 26 Vict. c. 97, s. 85.
(n) 24 & 25 Vict. c. 100, s. 33.
(o) As to which v. 42 & 43 Vict. c. 49, s. 11, and p. 463, et. tea.
(p) 24 & 26 Vict. c. 100, s. 34.
(q) 24 & 26 Vict. c. 97, b. 36.
C.L. 12
178 ASSAULTS, ETC.
It may be observed here that an acquittal upon an indict-
ment for felony under the above enactments is no bar to a
subsequent indictment for a misdemeanour although on the
same facts (r).
As to injuries from furious driving, v. p. 126.
ASSAULTS, ETC., CONNECTED WITH WRECKS.
To assault, and strike or wound any magistrate, officer, or
other person lawfully authorised in or on account of his
exercising his duty in the preservation of any vessel in
distress, or any wrecked vessel or goods, is a misdemeanour
punishable by penal servitude to the extent of seven years (5).
To impede any person endeavouring to escape from a wreck
or vessel in distress, or endeavouring to save another, is a
felony, punishable by penal servitude to the extent of life (t).
FORCING SEAMEN ON SHORE.
For a person belonging to a British ship wrongfully to
force on shore or leave behind any seaman, whether within
or without the King's Dominions, is a misdemeanour (u).
Other misdemeanours against the Merchant Shipping Acts
are to discharge or leave behind any seaman in any place
abroad, except in the country where he was shipped, without
obtaining the proper sanction specified in the Act (w) ; and
for a master of a ship to deliver a false account or make a
false representation as to the effects or wages of any seaman
left behind abroad (x). Each of these misdemeanours is
punishable by fine or by imprisonment not exceeding two
years, or may be dealt with on summary conviction, and
in that case is punishable by imprisonment not exceeding
(r) R. V. Gilmore, [1882] 15 Cox, 85.
(s) 24 .^ 25 Vict. c. 100, s. 37.
(t) Ibid. s. 17.
(«) 6 Edw. VII. c. 48, s. 43.
(w) Ibid. 88. 30. 36.
(x) Ibid. s. 28. sulvs. 10.
ASSAULTS, ETC. 179
six months or a penalty not exceeding £100 (y). The Acts
also provide penalties enforceable by summary conviction
for a very large number of other acts or defaults.
ASSAULTS ON OFFICERS.
To assault, resist, or wilfully obstruct any peace officer in
the due execution of his duty, or any person acting in aid
of such officer, or to assault any person with intent to resist
or prevent the lawful apprehension of oneself or of any other
person for any offence, is a misdemeanour, punishable by
imprisonment not exceeding two years (z).
ASSAULTS ON OTHERS IN THE EXECUTION OF THEIR DUTY.
Clergymen. — (i) By threats or force to obstruct or prevent
a clergyman or other minister in or from celebrating divine
service or otherwise officiating in any church, chapel,
meeting-house, or other place of divine worship, or in or
from the performance of his duty in the lawful burial of
the dead in any churchyard or other burial place, or (ii) to
strike, or offer violence to, one so engaged, or (iii) to arrest
upon civil process one so engaged, or who, to the knowledge
of the accused, is going to or coming from such perform-
ance is a misdemeanour, punishable by imprisonment not
exceeding two years (a).
Gamekeepers, v. p. 134.
ASSAULTS ON THOSE IN A DEFENCELESS POSITION.
Apprentices or Servants. — Whosoever, being legally liable
either as master or mistress to provide for any apprentice
or servant necessary food, clothing, or lodgings, wilfully and
(y) 57 & 58 Vict. c. 60. s. 680.
{z) 24 & 25 Vict. c. 100, s. 38 ; v. alno 34 & 35 Vict. c. 112, 8. 12 ; and 48 & 49
Vict. c. 75. For assaulting, &c., officers of the customs, v. p. 96
(o) 24 & 25 Vict. c. 100, 8. 36.
180 ASSAULTS, ETC.
without lawful excuse refuses or neglects to do so, or unlaw-
fully and maliciously does or causes to be done any bodily
harm so that the life of the apprentice or servant is endangered
or his health likely to be permanently injured, is guilty of a
misdemeanour, and is punishable by jienal servitude to the
extent of five years (b).
Children. — Abandoning or exposing: —
By the Children Act, 1908 (c), for a person over sixteen
years of age who has the custody, charge, or care [d) of a
child or young person (a " child " for the purposes of the
Act meaning a person under the age of fourteen years, and
a "young person" meaning one who is fourteen, but is
under the age of sixteen years (e)), to wilfully assault, ill-
treat, neglect, abandon, or expose such child or young person
in a manner likely to cause it unnecessary suffering or injury
to its health, is a misdemeanour punishable, upon conviction
on indictment, by imprisonment for two years, or a fine of
£100, or both; and the fine may be increased to £200 or a
sentence of five years' penal servitude be inflicted if it be
shown that the accused was directly or indirectly interested
in any money payable on the child's death, and knew that
it was so payable. A Court of summary jurisdiction may
deal with the matter by a sentence of six months' imprison-
ment or a fine of £25, or both (/). If a parent or other person
legally liable to maintain a child or young person fails to
provide for him adequate food, clothing, medical aid, or
lodging, or if, being unable to provide it, he fails to take
steps to procure it under the Acts relating to the relief of
the poor, he will be deemed to have neglected the child or
young person in a manner likely to cause injury to his
health (g). The deliberate omission to supply proper medical
attendance will be a " wilful neglect " within the meaning
(b) 24 & 25 Vict. c. 100, s. 26 (v. also p. 168).
(c) 8 Edw. VIl". c. 67.
id) As to the respective meanings of these words, see section 38.
(e) Ibid. s. 131.
(/) 8 Edw. VII. c. 67, 8. 12.
(g) Ibid.
ASSAULTS, ETC. 181
of this Act, even if the parent conscientiously objects to
medical aid in the case of disease, and if the child or young
person dies from the effects of the cruelty or neglect for-
bidden by the Act, the offender is guilty of manslaughter (h).
Upon the trial of any person over the age of sixteen indicted
for manslaughter of a child or young person of which he
has had the custody, charge, or care, the jury may convict
the accused of cruelty under this Act (i).
The Act does not take away or affect the right of any
parent, teacher, or other person having the lawful control or
charge of a child or young person to administer punish-
ment (A-).
When the person convicted of cruelty to or ill-treatment
of a child or young person is its parent or is living with the
parent and is an habitual drunkard within the meaning of
the Inebriates Acts, 1879 to 1900 (l), the Court instead of
passing a sentence of imprisonment may, with the consent
of the accused, direct him to be detained for any period not
exceeding two years in a retreat under those Acts (tti). It
is also provided that where a person having the custody of
a child or young person is convicted or committed for trial
for cruelty or any ill-treatment of it, or for abandoning it
or taking it out of the possession of its father or mother, or
is bound over to keep the peace towards the child or young
person, the Court may take the child or young person out of
the custody of such person and commit it to the custody of
a relation or other fit person until it attains the age of six-
teen, and may compel the parent to contribute to its
maintenance (n). Magistrates are also empowered to issue
a warrant authorising a police-constable to search for any
child who is alleged to be ill-treated or neglected, and to
(h) R. V. Senior, [1899] 1 Q. B. 283; 68 L. J. Q. B. 175. This case was
decided under the Prevention of Cruelty to Children Act, 1894, which also made
" wilful neglect " a misdemeanour. See also Oakey V. Jackson, [1914] 2 K. B.
216; 83 L. J. K. B. 712.
(i) 8 Edw. VII. c. 67, s. 12, sub-3. 4.
<k) Ibid. s. 37.
(I) V. p. 440, post.
(m) 8 Edw. VII. c. 67, s. 26.
in) Ibid. ss. 21, 22.
182 ASSAULTS, ETC.
bring it before a Court of summary jurisdiction in order tbat
due provision for its safety may be made (o). Moreover, a
constable may without warrant arrest any person who in his
sight commits any of the above-mentioned offences if the
name and residence of such person cannot be ascertained by
the constable, or any person whom he has reason to believe
has committed any such offence if he has reasonable grounds
for believing that such person will abscond, or if his name
and address cannot be ascertained {p).
For a person having the custody, charge, or care of a child
or young person between the ages of four and sixteen to reside
in or frequent a brothel is a misdemeanour and is punishable
either on indictment or summary conviction by a fine of £25
or imprisonment for six months {q).
If a person having the custody, charge, or care of a girl
under the age of sixteen causes or encourages her seduction,
prostitution, or unlawful carnal knowledge, he is guilty of
a misdemeanour and is liable to imprisonment for two years;
and he will be deemed to have caused or encouraged the
seduction, &c., if he has knowingly allowed her to consort
with persons of known immoral character and the girl is
seduced (/•).
The Children Act, 1908, contains provisions inflicting on
summary conviction a penalty of £25 or imprisonment for
six months upon persons who, for reward, undertake the
nursing and maintenance of infants under the age of seven
years apart from their parents, without complying with the
provisions of the Act as to notices to the local authority
and otherwise, or if such persons insure the lives of such
infants [s).
It is an offence, punishable by a Court of summary
jurisdiction with imprisonment for three months or a fine
(o) Ihid. s. 24.
(p) Ibid. s. 19.
iq) Ibid. s. 16, sub-s. 1. This section does not affect the liability of a person
to be indicted under section 6 of the Criminal Law Amendment Act, 1885 (v.
p. 158), but on the trial of a person under that section he may be found guilty
of an offence under this section. Ibid. s. 16, sub-s. 2.
(r) 8 Edw. VII. c. 67, s. 17 ; 10 Edw. VII. & 1 Geo. V. c. 25, s. 1.
(s) 8 Edw. VII. c. 67, ss. 1—1]
ASSAULTS, ETC. 183
of £25,' or both, (i) to cause or allow a child or young person
to be in any street or place for the purpose of begging,
whether under the pretence of singing, selling, &c., or other-
wise (t) ; (ii) to cause or allow a boy under the age of
fourteen, or a girl under the age of sixteen, to be in a street
or public-house (u) for singing, playing, or performing for
profit, or offering anything for sale, between 9 p.m. and
6 A.M., which hours may be extended or restricted by the*
local authority (w); (iii) to cause or allow any child under
eleven years of age to be at any time in a street, or public-
house (x), or in a circus or place of amusement or public-
entertainment, for the purpose of singing, playing, or
performing for profit, or offering anything for sale, or to*
cause or allow a child under sixteen years of age to be trained!
as an acrobat, or circus performer, or for any dangerousj
exhibition; but a licence may be granted by magistrates:,
subject to proper restrictions for the protection of the child,
for the employment of a child above ten years of age, to take
part in such entertainment or to be so trained [y).
It is forbidden to cause any male child or young person
under sixteen years of age, or any female under eighteen
years of age, to take part in any public exhibition or perform-
ance whereby its life or limbs might be endangered. The
penalty for the offence is £10; but if an accident happens
to the child, causing it actual bodily harm, the employer
is liable to be indicted for an assault, and the Court has
power to order him to pay £20 compensation for the benefit
of the child [z).
It has also been made illegal to employ any child under
the age of eleven in any street trading, or in any occupation
likely to be injurious to its life, health, or education; and
power has been given to local authorities to make by-laws
(t) Ihid. 8. 14.
(u) A child under the age of fourteen must not be allowed at all in the bar of
a public-house, except during the hours of closing, under a penalty of £2 upon
the licence-holder, ibid. s. 120.
(w) 4 Edw. VII. c. 15, 8. 2 (b).
(i) See note (u), supra.
(y) 4 Edw. VII. c. 15, s. 2 (c), (d).
(z) 42 & 43 Vict. c. 34, s. 3, as amended by 60 & 61 Vict. c. 52.
184 ASSAULTS, ETC.
as to the age below which any employment shall be illegal,
the number of hours during which children may be employed,
and prohibiting absolutely or under conditions the employ-
ment of children in any specified occupation (a).
In proceedings under the Children Act, 1908, for the
cruelty or ill-treatment of a child or young person the de-
fendant's husband or wife is a competent but not compellable
witness for the prosecution or defence, and without the
consent of .the person charged (b).
It is usual to prove the age of the child or young person
in question by producing a certificate of birth with evidence
■of identity. But this may be proved by any legal evidence,
such as the production of the child in Court or the statement
of a witness, who has seen it, of his belief as to its age (c) ;
and in the absence of any proof of age by the prosecution
it will be sufficient if the child appears to the Court to have
been of the specified age when the offence was committed
unless the contrary is proved (d).
Upon a charge of cruelty to a child or young person or
of any offence involving bodily injury to it, if the Court
is satisfied that the attendance of the child or young person
alleged to have been ill-treated is not essential to the jus^
hearing of the case it may proceed in his absence (e).
EMPLOYMENT OF CHILDREN ABROAD.
By the Children (Employment Abroad) Act, 1913, it is
made an offence for any person to cause or procure a child
or young person, or having the custody, charge, or care of
any child, &c., to allow such child, &c., to go out of the
United Kingdom for playing or performing for profit, unless.
(a) 3 Edw. VII. c. 45, ss. 1 and 3.
(h) 8 Edw. VII. c. 67, s. 27; Leach v. R., [1912] A. C. 305; v. p.
(c) R. V. Cox, [1898] 1 Q. B. 179; 67 L. J. Q. B. 293.
(d) 8 Edw. VII. c. 67, s. 123, sub-s. 2. This eub-section applies to all offences
under the Act or in the First Schedule to the Act, except offences under the
Criminal Law Amendment Act, 1885.
(e) 8 Edw. VII. c. 67, s. 31.
ASSAULTS, ETC.
185
in the case of a young person, a licence under the Act has
been granted. This offence is punishable on summary con-
viction by line of £100 or alternatively, or in addition, by
imprisonment for three months. If, however, the offender
has procured the child, &c., to go out of the United Kingdom
by any false pretence or representation, he is liable, on con-
viction on indictment, to imprisonment for two years.
Proceedings in respect of an offence under the Act must be
instituted within three months from the discovery of the
commission of the offence by the person taking the pro-
ceedings. The wife or husband of the person charged is a
competent but not compellable witness for the prosecution or
defence, and without the consent of the person charged (/).
Lunatics. — Ill-treating or wilfully neglecting a patient in
an institution for lunatics by any person employed therein,
or by any one having charge of a lunatic, is a misdemeanour,
punishable on indictment by fine or imprisonment, or on
summary conviction by a fine not exceeding £20 (^r). The
expression " institution for lunatics " includes any house
licensed for their reception, and it is a misdemeanour, punish-
able by a fine of £50 and by imprisonment, to take charge
of, receive, or detain a lunatic for payment in any house
not so licensed, or to receive or detain two or more lunatics
in an unlicensed house, even if no payment is required (h).
The Lunacy Act, 1890, contains many other provisions for
the protection of lunatics, and inflicts severe penalties if
these provisions are not complied with (i).
(/) 3 & 4 Geo. V. c. 7, ss. 1 and 3.
ig) 53 Vict. c. 5, s. 322 (The Lunacy Act, 1890).
(h) Ibid. 8. 315.
(t) See, in particular, section 316, Neglect to send notices on admission to
institution, or on discharge or death; section 317, Wilful misstatements in
petitions, medical certi6cates, reports, &c. ; section 318, False entries in books
or returns; section 319, Omission to give notice of lunatic's death to coroner;
section 321, Obstructing Lunacy Commissioners or visitors; section 40, Using
mechanical means of bodily restraint on lunatics without necessity or contrary
to regulations of Act ; section 214, Making untrue statements for the purpose
of obtaining a licence for a house for the reception of lunatics; section 222,
Detaining lunatics .'nore than two months after the licence for the house has
expired ; section 233. Lodging lunatics in premises not included in the licence.
Offences against any of these sections are declared to be misdemeanours.
186 ASSAULTS, ETC.
DEFECTIVES.
By tlie Mental Deficiency Act, 1913, the following are
made misdemeanours punishable on indictment by fine or
imprisonment for two years, or, if prosecuted summarily,
by imprisonment for three months and (or) a fine of £50 (Jc) :
(i) Undertaking without consent of the Board of Control
constituted by the Act the care and control of more than
one defective (l).
(ii) For the manager of an institution for defectives, or for
the guardian of a defective, to detain a patient or exercise
the powers conferred by the Act after he knows that such
powers have expired (in).
(iii) Obstructing a commissioner or inspector or any officer
appointed by a local authority under the Act (n).
(iv) For a manager, officer, nurse, &c., in an institution or
certified house, or for any person having charge of a
defective, to ill-treat or wilfully neglect the defective (o).
(v) Knowingly making false entries in any book, statement,
or return as to any matter in respect of which an entry is
required under the Act (p).
(vi) Supplying any untrue information, description, or
notice for the purpose of obtaining any certificate or
approval under the Act (q).
FALSE IMPRISONMENT.
Wrongful imprisonment is a misdemeanour at common law,
punishable by fine or imprisonment, or both. All that the
prosecutor has to prove is the imprisonment; it is for the
defendant to justify what he did (;•). The indictment also
usually alleges an assault.
Every confinement or restraint of the liberty of a person is
an imprisonment; for example, forcibly detaining a man in
(fc) § & 4 Geo. V. c. 28, s. 60. (Z) s. 51, sub-s. 1.
(m) 8. 51, sub-8. 3. (n) s. 54, sub-s. 1.
(o) s. 55. • (p) s. 57.
(q) s. 58. (r) Archbold, p 959,
ASSAULTS, ETC. 187
the street. Though a party, on being shown a magistrate's
warrant, goes willingly upon the requirement of the constable,
this is an imprisonment which the person giving him into
custody may be called upon to justify (5).
We shall see, under the title '' Arrest," in what cases one
person is justified in detaining another (t).
is) Chivn V. Morris, [1826] 2 C. & P. 361; but v. also Arrowsmith v. Le
Mesurier, [1806] 2 B. & P. N. E. 211.
(t) v.. p. 288 et. stq.
PART III.
OFFENCES AGAINST INDIVIDUALS— THEIR
PEOPERTY.
CHAPTER I.
LARCENY.
We have now to consider three offences which are often
confused — larceny, embezzlement, false pretences. Before
attempting to distinguish them it is necessary to understand
the meanings of the terms " property " and " possession."
A person has the property in things of which he is the
owner. If, for example, I buy a motor-car from a person
who can give me a good title to it, I have the right of owner-
ship over it, and it is my property. Possession, on the other
hand, simply implies physical control over a thing, whether
exercised rightfully or wrongfully. My customer to whom
I let my car, or a thief who steals it, each has possession, but
I retain my property. If, however, a person has possession
of a thing and also for any reason has a right to retain
possession of it as against the true owner, as, e.g., in virtue
of a bailment or loan, he is said to have a " special property "
in the thing.
I may, however, have possession of a thing although I am
not, in fact, exercising control over it. My possession is then
said to be constructive. This occurs (i) where the thing is
in some place over which I exercise general control, as, e.g.,
money in the till of my shop; (ii) where it is in the hands
of my servant, for the possession of a servant is deemed to be
190 LARCENY.
the possession of his master and the servant himself is said
to have merely the custody (a).
We can now distinguish between larceny, embezzlement,
and false pretences.
In larceny the possession is taken (actually or con-
structively) froTn a person who has the possession, whether
or not he is the owner; as when my motor-car is stolen from
me or from my bailee, or money is stolen from my till or
my servant. In embezzlement, possession is taken of some-
thing which is my property, but it is taken before it has come
into my actual or constructive possession, as, e.g., where my
shopman, instead of paying to me money which he has re-
ceived from a customer for me, intercepts it and converts
it to his own use (6). In false pretences the person com-
mitting the offence acquires the property in something from
me. I give it to him, intending to pass not merely the
possession but the property, but I am induced to do so by his
false pretences, as, e.g., where he obtains money or goods
from me by false representations made in a begging letter.
The difference between these offences is not now of so much
importance as formerly, for by the Larceny Act, 1916 (c) —
(i) On the trial of a person indicted for embezzlement and
fraudulent application or disposition of property under
section 17 of the Act, if it is proved that he stole the property
in question, the jury may find him guilty of larceny; and
vice versa, if indicted for larceny, he may be convicted of
embezzlement or of fraudulent application or disposition.
(ii) A person indicted for larceny may be convicted of
obtaining by false pretences.
(iii) If a person is indicted for obtaining property by false
pretences and it is proved that he stole it, he can nevertheless
be convicted of obtaining by false pretences.
The common law and statute law relating to larceny have
now been modified by the Larceny Act, 1916 (d).
(a) R. V. Cooke, L. K. 1 C. C. E. 299; 40 L. J. M. C. 68.
(b) R. V. Masters. 2 C. & K. 936.
(c) s. 44. sub-ss. 2, 3. and 4.
(d) 6 & 7 Geo. V. c. 50. In the chapters relating to larceny, embezzlement,
false pretences, and burglary, etc., the Quotation merely of a section refers to
this Act; the figures (1861) refer to the Larceny Act, 1861.
LAUCENY. 191
By section 1 it is provided that, for the purposes of the Act,
1. A person steals who, without the consent of the owner,
fraudulently and without a claim of right made in good
faith, takes and carries away anything capable of being
stolen with intent, at the time of such taking, permanently
to deprive the owner thereof; provided that a person may be
guilty of stealing any such thing, notwithstanding that he has
lawful possession thereof, if, being a bailee or part owner
thereof, he fraudulently converts the same to his own use,
or the use of any person other than the owner.
2. (i) The expression "takes" includes obtaining the
possession (a) by any trick; (b) by intimidation; (c) under a
mistake on the part of the owner with knowledge on the
part of the taker that possession has been so obtained; (d) by
finding, where at the time of the finding the finder believes
that the owner can be discovered by taking reasonable steps;
(ii) the expression " carries away " includes any removal of
anything from the place which it occupies, but in the case
of a thing attached only if it has been completely detached;
(iii) the expression " owner " includes any part owner, or
person having possession or control of, or a special property
in, anything capable of being stolen.
3. Everything which has value and is the property of any
person, and if adhering to the realty then after severance
therefrom, shall be capable of being stolen; provided that (a)
save as hereinafter expressly provided with respect to fixtures,
growing things, and ore from mines, anything attached to
or forming part of the realty shall not be capable of being
stolen by the person who severs the same from the realty,
unless after severance he has abandoned possession thereof;
and (b) the carcase of a creature wild by nature and not
reduced into possession while living shall not be capable
of being stolen by the person who has killed such creature,
unless after killing it he has abandoned possession of the
carcase.
This section, every word of which is of importance, mav
be considered under the following heads: —
1. What kinds of property may be the subjects of larceny.
192
LAllCENY.
2. What must be the criminal intent.
3. What constitutes a taking and carrying away.
1. The subjects of larceny. — At common law certain kinds
of property could not be the subjects of larceny. These
were (e) : —
A. Things real or savouring of or attached to the realty.
B. Bonds, bills, and other choses in action.
C. Things which are not the subjects of property.
As to these in order : —
A. The first and chief example of the common law
exclusion was — Things real, as lands and houses; and things
attached or belonging to the realty, as trees, growing crops,
grass, the stones or lead of a house; also title-deeds and
other writings relating to real estate, inasmuch as they
savour of the realty, and pass like real property to the heir
or devisee. If the rights of the owner of such property are
riolated, he must seek a remedy in a civil action of trespass.
He cannot, as a rule (see exceptions below), appeal to the
criminal law for the punishment of the offender. But if the
things have been severed from the land, &c., e.g., mown
grass, and are then feloniously taken away, these may be
made the subjects of an indictment for larceny, inasmuch
as by the severance they have become personal goods. How-
ever, to give them this quality where the severance has been
by the wrongdoer himself a substantial interval must have
elapsed between the severance and the removal, so that the
acts are perfectly distinct. And in this interval the wrong-
doer must have intended to have abandoned the wrongful
possession begun at the time of the severance; for example,
it will not be larceny to sever the article and then conceal
it till one can conveniently return and carry it away, how-
ever long the interval may be, for the whole is regarded as
one continuous act (/). This common law rule is preserved
by section 1 (3) (a) of the Larceny Act, 1916.
'e) Archbold, 523, 524.
(J) R V. Townley, [1871] L. E. 1 C. C. E. 315 ; 40 L. J. M. C. 144.
LARCENY. 193
The following are the statutory modifications of the old
common law rule excluding this class of property: —
a Materials of buildings, fixtures, Sfc. — To steal or to
rip, cut, sever, or break, with intent to steal, any glass or
wood-work belonging to any building whatsoever; or any
metal ; or any utensil or fixture fixed in or to any building
whatsoever; or anything made of metal fixed in any land
being private property or for a fence to a dwelling-house,
garden, or area, or in any square or street, or in any place
dedicated to the public use or ornament, or in any burial-
ground, is a felony punishable as simple larceny [g).
p. Mines, S^c. — To steal, or sever with intent to steal, the
ore of any metal, or any manganese, blacklead, &c., or any
coal from any mine, bed, or vein, is a felony, punishable by
imprisonment not exceeding two years with or without hard
labour {h).
The same consequences attend thefts of a similar nature by
any one employed about the mine (t).
y. Trees. — To steal, cut, destroy, or damage with intent to
steal, the whole or any part of any tree, sapling, shrub, or
underwood growing in a park, pleasure-ground, garden,
orchard, or avenue, or in any ground adjoining or belonging
to a dwelling-house, if the injury done or the value of the
article stolen amounts to the value of more than £1, or, if
growing elsewhere, more than £5, is a felony punishable as
simple larceny (A-). If the injury is to the value of Is.,
wherever the tree, &c., may be growing, the accused may be
dealt with summarily and punished for the first offence by
fine not exceeding £5 over and above the injury done; for
the second, imprisonment not exceeding twelve months (Z) ;
on a third conviction, the offence is a felony, punishable as
simple larceny (m).
(g) 8. 8, 8ub-8. 1. (;i) s. 11.
(i) 8. 39 (186H. {k) 8. 8, 8ub-8. 2.
(I) 8. 33 (1861). (m) 8. 8, 8ub-8. 2.
C.L. 13
194 LARCENY.
8. Plants, Sfc. — To steal, or destroy, or damage with
intent to steal, any plant, root, fruit, or vegetable production
growing in any garden, orchard, nursery-ground, hothouse,
or conservatory, is punishable on summary conviction by
imprisonment not exceeding six months, or fine not exceed-
ing £20 (n). The second offence is punishable as simple
larceny (o).
e. Deeds, ^-c. — To (i) steal (p), or (ii) for any fraudulent
purpose to destroy, cancel, obliterate, or conceal (q) any or
part of any documents of title to lands is a felony punish-
able by penal servitude to the extent of five years.
B. A second exclusion by the common law was of choses
in action (i.e., mere rights to demand property by action or
other proceedings), and documents which are merely evidence
of such rights.
Larceny of choses in action and securities is now, however,
punishable under section 2 of the Larceny Act, 1916 (r). By
section 46 the expression " valuable security " includes any
writing entitling or evidencing the title of any person to
any share or interest in any public stock, annuity, fund, or
debt of any part of His Majesty's Dominions, or of any
foreign State, or in any stock, &c., of any body corporate,
company, or society, whether within or without His Majesty's
Dominions, or to any deposit in any bank, and also includes
any scrip, debenture, bill, note, warrant, order, or other
security for payment of money, or any accountable receipt,
release, or discharge, or any receipt or other instrument
evidencing the payment of money, or the delivery of any
chattel personal and any document of title to lands or
(n) 8. 36 (1861). It should be noticed that by section 37 stealing cultivated
roots or plants used for the food of man or beast growing in any land is punish-
able on summary conviction by fine and imprisonment, v. pp. 458.
(o) s. 8, sub-s. 3.
(p) 8. 7, 8ub-s. 1.
iq) 3. 28 ( 1861). As to concealment of instruments of title or falsification of
pedigree by a vendor or mortgagor, or his solicitor or agent, v. 22 & 23 Vict,
c. 35, 8. 24.
(r) Also, in case of theft by persons in the public service, under s. 17, sub-s. 2,
V. p. 212; and, in case of theft of postal packets by Post Office officers, under
6. 18. and under the Post Office Act, 1908, s. 55, v. p. "Sie.
LARCENY. 195
goods (s). The expression "document of title io lands"
includes any deed, map, register, &c,, being or containing
evidence of the title, or any part of the title, to any
real estate, or to any interest in or out of any real estate.
The term " document of title to goods " includes any bill of
lading, India warrant, dock warrant, warehouse-keeper's
certificate, warrant, or order for the delivery or transfer of
any goods or valuable things, bought or sold note, or any
other document used in the ordinary course of business as
proof of the possession or control of goods, or authorising or
purporting to authorise, either by indorsement or by delivery,
the possessor of such document to transfer or receive any
goods thereby represented or therein mentioned or referred
to (t).
The fraudulent destruction, cancellation, &c., of any
valuable securities other than documents of title to land
is a felony punishable in the same manner as the larceny
of the property represented by the security (w).
It will be convenient to notice here the other exceptional
cases of stealing written instruments.
Wills. — To (i) steal any will, codicil, or other testamentary
instrument, either of a dead or living person (w), or (ii)
for any fraudulent purpose to destroy, cancel, obliterate,
or conceal, either during the life or after the death of the
testator, the whole or any part of any will, codicil, or
other testamentary instrument, whether of real or personal
property (a), is a felony, punishable by penal servitude to
the extent of life. Neither in case (i) nor case (ii) can a
person be convicted if, before he is charged with the offence,
he has first disclosed such act on oath in consequence of any
compulsory process of a Court of law or equity in any action
(») It also includes currency notes (4 & 5 Geo. V. c. 14, s. 1, sub-s. 5) and
money orders (Post Office Act, 1908, s. 59 (1)).
(t) Similar but not precisely the same definitions occur in section 1 of the
Tjarceny Act, 1861, which should be referred to for such offences as are within
unrepealed sections of that Act.
(u) s. 27 (1861).
iw) s. 6.
tx) 8. 29 (1861).
196 LARCENY.
or proceeding instituted by the party aggrieved (y) ; in case
(ii) he has the same protection if the act was first disclosed
in any compulsory examination or disposition in bank-
ruptcy {z) ; but in case (i) the Larceny Act, 1916 merely
provides that any statement or admission made in such
examination or deposition shall not be admissible in evidence
against him (a).
Records. — To (i) steal (b) or (ii) for any fraudulent pur-
pose to remove, or to unlawfully and maliciously injure,
obliterate, or destroy (c) records, writs, affidavits, orders, or
other original documents belonging to a Court of record, or
relating to any matter, civil or criminal, depending in any
such Court, or any document relating to the business of any
office, or employment under His Majesty, and being in any
office appertaining to any Court of justice, or in any Govern-
ment or public office, is a felony punishable by penal
servitude to the extent of five years.
C. A third exclusion of the common law is of things which
are not the subjects of property at all.
The chief example of this is in the case of certain animals.
But, in addition to these, in certain other things there is
no property, as a corpse (d), and, it has been said, of treasure-
trove (e), waifs, &c.
Water supplied by a water company to a customer, and
standing in his pipes, is a subject of larceny at common
law (/) ; so also is gas (g). To maliciously or fraudulently
abstract, consume, or divert electricity is by statute punish-
able as simple larceny (h).
(y) 8. 29 (1861) ; 8. 43, snb-s. 2.
(z) 8. 29 (1861).
(a) 8. 43, sub-s. 3. The protection given by s. 29 (1861) applies also to documents
of title to land (v. p. 194) ; that given by s. 43, sub-ss. 2 and 3, applies to offences
a^Tainst ss. 6, 7 (1), 20, 21, and 22 (v. pp. 194, 195, 224—229).
" (b) s. 7, 8ub-s8. 2 and 3.
(c) 8. 30 (1861).
(d) It is, however, a misdemeanour to disinter a dead body for the purpose
of dissection, or to sell it for gain or profit (R. v. Lynn, [1788] 2 T. R. 733);
see also p. 123.
(e) But V. p. 63, and Archbold, 524.
(/) Ferens v. O'Brien. ri883J 11 Q. B. T). 21; 52 L. T. M. C. 70.
(g) R. V. White, [1853] Dears. C. C. 203; 22 L. J. M. C. 123.
Ih) s. 10.
LARCENY. 197
Animals. — At common law there ca.i be no larceny of
animals in which there can be no property. Such are beasts
that are feros naturae and unreclaimed, e.g., deer, hares, or
conies in a forest, chase, or warren; fish in an open river or
pond ; or birds at their natural liberty, or their eggs (t) ; and
this notwithstanding that the right to take the animals in
the particular place is enjoyed exclusively by one or more
persons. Thus it is not larceny to shoot and take a hare on
another person's land; the offence will be one against the
Game Laws. On the other hand, dead animals, whether to
be used for food or not, may be the subjects of larceny.
But where the killing and the taking are both by the accused,
the rule noticed above as to a break in the proceedings by
abandoning possession must be borne in mind [h). This rule
also is preserved by section 1 (3) of the Larceny Act, 1916.
Again, if the animals are evidently reclaimed, or are
practically under the care and dominion of any person, and
may serve for food {e.g., pheasants in a pheasantry), they
could, at common law, be the subjects of larceny. So, also,
valuable domestic animals, as horses; and all animals domitoe
naturae which serve for food, as swine, poultry, and the like;
and the products of any of them, as eggs, milk, wool, &c.
But other animals which do not serve for food were not
the subjects of larceny at common law, e.g., dogs, bears and
foxes, though they might be recovered in a civil action.
Now, however, by section 1 (3) of the Larceny Act, 1916;
any creature, alive or dead, whether serving for food or not,
is capable of being stolen if it has any value and is the
property of any person, i.e., has been reduced into possession.
But offences which at the commencement of the Act were
punishable only on summary conviction remain only so
punishable (?), as, e.g., the stealing of any animal not the
subject of larceny at common law.
(i) R. V. Stride, [1908] 1 K. B. 617, 627; 77 L. J. K. B. 490. But it will
be otherwise if the eggs have been reduced into possession and are afterwardd
stolen, ibid.
(k) V. p. 192. R. V. Read, [1877] 3 Q. B. D. 131 ; 47 L. J. M. C. 60.
(I) s. 47, Bub-8. 2.
198 LARCENY.
Larceny of the following animals, &c., is governed by
special sections.
a. Deer. — To unlawfully and wilfully course, hunt, snare,
carry away, or kill or wound, or attempt to kill or wound,
any deer kept in an unenclosed part of a forest, chase, or
purlieu is punishable, on summary conviction, by a penalty
not exceeding £50. The second offence is a felony punish-
able by imprisonment not exceeding two years {n). If the act
is done in an enclosed place, the first or any offence is a
felony, punishable by imprisonment not exceeding two
years (o). To have in possession, without satisfactorily
accounting for the same, any deer, or the head, skin, or other
part thereof, or a snare or engine for taking deer (/?), or to
set or use any such snare, or destroy any part of the fence
of any land where any deer are kept [q), is punishable, on
summary conviction, by a fine of £20.
The sections creating these offences are, however, only
applicable where the deer has been hunted or killed within
the forest, chase, or purlieu, and not to the hunting, killing,
or being in possession of a deer which has escaped beyond
the boundary (r).
/8. Hares and Rabbits. — To unlawfully and wilfully,
between the expiration of the first hour after sunset and the
beginning of the last hour before sunrise, take or kill any
hare or rabbit in a warren or ground (whether enclosed or
not) lawfully used for the breeding or keeping of hares or
rabbits is a misdemeanour. To do the above at any other
time, or at any time to set a snare, is punishable, on sum-
mary conviction, by a penalty not exceeding £5 (s).
y. Fish. — To unlawfully and wilfully take or destroy any
fish in any water adjoining or belonging to the dwelling-
(n) s. 12 (1861).
(0) s. 13 (1861).
(p) s. 14 (1861).
(q) s. 15 (1861).
(r) Threlkeld v. Smith, [1901] 2 K. B. 531; 70 L. J. K. B. 921.
(*) s. 17 (1861).
LARCENY. 199
house of the owner of such water is a misdemeanour; to do
so in water not so situated, but which is private property, or
in which there is any private right of fishery, is punishable,
on summary conviction, by a penalty not exceeding £5 above
the value of the fish (t). This provision does not apply to
taking fish by angling in the daytime, which in all cases is
only punishable by fine.
Oysters. — To steal oysters or oyster brood is now simple-
larceny under the Larceny Act, 1916 (u). To unlawfully and
wilfully use any net, instrument, or dredge within any oyster
bed or fishery, for the purpose of taking oysters, «S;c.,
although none are taken, is a misdemeanour, punishable by
imprisonment not exceeding three months, with or without
hard labour (w).
8. Dogs. — Stealing a dog is punishable, on summary con-
viction, by imprisonment not exceeding six months or with
a penalty not exceeding £20 above the value of the dog.
A second offence is a misdemeanour, punishable by imprison-
ment not exceeding eighteen months, with or without hard
labour (x). The same consequences, without the alternative
of imprisonment for the first offence, attend the unlawfully
having possession of a stolen dog or its skin, knowing it to
have been stolen (y). To corruptly take money for aiding
any person to recover a dog which has been stolen, or which
may be in the possession of any person not the owner thereof,
is a misdemeanour punishable by imprisonment not exceed-
ing eighteen months (z).
e. Horses, Cattle, Sheep. — One reason for increasing the
severity of the punishment is the ease with which the crime
(t) B. 24 (1861).
(u) 8. 1, 8ub-8. 3; 8. 2.
(to) 8. 26 (1861); see also 31 & 32 Vict. c. 45, pt. 3, 88. 28, 42, 43 51 52 56-
also 47 & 48 Vict. c. 27. . . . , oo,
(x) 8. 18 (1861) ; 8. 5, 8ub-8. 1. '
(y) 8. 19 (1861): s. 6. 8ub-8. 2; 8ee also s. 22 (1861).
(z) s. 5, aub-s. '3
200 LARCENY.
can be committed, so that the deterrent effect of the con-
seiquences may be proportioned to the inducements to commit
it. On this account the punishment imposed by statute for
stealing any of these animals exceeds that for simple larceny
at common law.
To steal any horse, cattle, or sheep is a felony, punish-
able by penal servitude to the extent of fourteen years (a).
To wilfully kill any animal, with intent to steal the
carcase, skin, or any part, is a felony, punishable as if the
offender had been convicted of feloniously stealing the same,
provided the offence of stealing the animal so killed would
have been felony (6).
Further, with regard to the goods. — As a rule, the value
of the thing stolen is no longer of any moment in larceny;
except, indeed, where some amount is specially mentioned
in the statute as of the essence of the crime, for example,
in the case of trees (c) ; or where the value of the thing
determines whether the case may be dealt with in a sum-
mary way (d). But now in ordinary cases no statement of
value or price is necessary in the indictment (e). Formerly
it was otherwise. There was a division into grand and petty
larceny; the former comprising cases of larceny of goods
of the value of twelve pence and upwards; such offences
being attended with more serious punishment than petty
larcenies, which comprised cases of theft where the value
did not reach that sum. But this distinction has been
abolished, and every simple larceny is now of the same
nature, and subject to the same incidents, as grand larceny.
Though, to make a thing the subject of an indictment for
larceny, it must be of some value, yet it need not be of the
value even of a farthing (/).
(a) s. 3. '
(b) 8. 4.
(c) V. p. 193.
(d) 42 & 43 Vict. c. 49, s. 12, and Sched. I.
(e) Indictments Act, 1915, rule 6 ; v. p. 311.
(/) R. V. Morris, [1840] 9 C. & P. 349.
LARCENY. 201
2. What must be the intent.
The particular mens rea, or criminal Intent, necessary
to constitute larceny is defined by the Act. The goods
must be taken " fraudulently and without a claim of
right made in good faith — with intent, at the tirne
of such taking, 'permanently to deprive the owner
thereof (g). The intent must be permanently to deprive the
owner (h). Thus if I take my neighbour's horse out of his
stables, intending merely to ride it for a few miles and then
return it, this is not larceny. The goods must be taken
fraudulently and without a claim of right. There is no
larceny if goods are taken under a bona-fide claim of right,
however unfounded in law that claim may be. Thus a person
who takes the goods of another under an illegal distress, but
imagining that he has a right to do so, is liable to civil but
not to criminal proceedings (?').
The criminal intent or animus furandi must exist at
the time of taking possession. If possession was obtained
innocently and without any fraudulent design, no subsequent
misappropriation could at common law amount to larceny.
Whether or not the criminal intent existed at the time of
taking possession is a question for the jury (w). Its existence
may be inferred from the circumstances of the case, as, e.g.,
from the fact that possession was taken secretly or from
the denials of the prisoner when questioned. Returning the
goods is strong evidence that the intent was not criminal, but
it is not conclusive, inasmuch as the prisoner should be con-
victed if from other circumstances it were proved that the
criminal intent was present at the time of taking, though it
was afterwards abandoned. On the other hand, the mere fact
that the prisoner pawned the goods is not conclusive against
him, as he may have intended to redeem them ; but if there
are repeated pawnings without any reasonable probability
that the prisoner would have been able to redeem the goods,
(g) 8. 1, sub-s. 1.
(h) R. V. Holloway, 2 C. & K. 942.
(t) Archbold, 493, 494.
(it) R. V. Farnborough, [1895] 2 Q. B. 484; 64 L. J. (M. C.) 270.
202 LAECENY.
this may be evidence upon wliich a jury may find that
possession was obtained with a fraudulent intention (k).
In consequence of the rule that where possession was
obtained innocently a subsequent conversion could not
amount to larceny, a bailee who had obtained possession
innocently could not at -common law be convicted of larceny
if, before the bailment had determined, he converted goods
to his own use. So also one of several joint tenants,
tenants in common, or partners could not at common law
commit larceny of the property owned by them jointly or
in common or as partners, because he was lawfully in
possession of it. Now, however, it is provided (I) that a
person may be guilty of stealing a thing of which he has
lawful possession if, being a bailee, or a part owner thereof,
he fraudulently converts the same to his own use or to the use
of any person other than the owner. And as to partners and
co-owners, it is further provided that if any person who is a
member of a partnership or is one of two or more beneficial
owners of any property, steals or embezzles any property
belonging to such partnership or beneficial owners, he may be
tried and punished as if he were not a partner or one of the
beneficial owners (th).
A man can as a rule be convicted of larceny as a bailee
only when he has to deliver back the very same chattel or
money which is entrusted to him (n). But this rule has been
extended so as to include cases where goods have been en-
trusted to a man for sale and he has converted the proceeds
to his own use; and, conversely, where money has been put
into Ms hands to buy goods and he has appropriated the
goods. In both such cases there may be a conviction for
larceny as a bailee (o).
(fc) R. V. Wynn, [1887] 16 Cox, 231.
(l) s. 1, sub-s. 1. The common law rule had previously been altered by the
Larceny Act, 1861, s. 3, as to baileeb, and by the Larceny Act, 1868, as to
partners.
(m) s. 40, sub-s. 4.
(n) R. V. Hassall, [1861] 30 L. J. M. C. 17.5.
(o) R. V. De Banks, [1884] 13 Q. B. D. 29; 53 L. J. M. C. 132; R. v.
Bunkall, [1884] 53 L. J. M. C. 75; R. v. HoUoway (Governor), [1897] 66 L. J.
Q. B. 830.
LAECENY. 203
A somewhat common instance of larceny by a bailee may
be mentioned. If furniture be hired under a hire-purchase
contract and the hirer remove and sell it without the
knowledge or consent of the person from whom it is hired,
he is guilty of this offence (p).
As we shall see, the Larceny Act deals specifically with the
cases of certain persons who are entrusted with money or
goods, such as factors, bankers, and brokers. Other cases of
fraudulent appropriation by those to whom property has been
delivered by some other person than the owner will be dealt
with in the chapter on Embezzlement.
At common law the possession of husband and wife was the
same, so that they could not steal each other's goods; if,
therefore, the goods of the husband were taken with the
consent or privity of the wife, it was not larceny unless the
taker was the adulterer of the woman (q). And so the
adulterer could not be convicted merely of receiving the goods
of the husband which had been taken by the wife alone and
received by him from the wife, if he were no party to the
stealing (r). But now by the Larceny Act, 1916 (s), every
wife has the same remedies and redress under the Act for the
protection and security of her own separate property as if
such property belonged to her as a feme sole. But it is pro-
vided that no proceedings under the Act can be taken by any
wife against her husband, while they are living together,
concerning any property claimed by her; nor, while they are
living apart, as to any act done by the husband, while they
were living together, concerning property claimed by the
wife, unless such property has been wrongfully taken by the
husband when leaving or deserting, or about to leave or desert,
his wife; the indictment need not, however, allege that the
case does not come within these exceptions {t). In like
manner a wife doing any act with respect to any property of
(p) R. V. Macdonald, [1885] 15 Q. B. D. 323.
(q) R. V. Tolfree, [1823] 1 Mood. C. C. 243; see also R. v. Flatman, [1880]
14 Cox, 396.
(r) R. V. Kenny, [1877] 2 Q. B. D. 307; 46 L. J. M. C. 156.
is) 8. 36, reproducing ss. 12 and 16 of the Married Women's Property Act
1882.
(t) R. V. James, [1902] 1 K. B. 540; and see Indictments Act, 1915, Rule 5.
204 LARCENY.
her husband, which if done by the husband with respect to
the property of the wife would make the husband liable to
criminal proceedings by the wife, is liable to criminal pro-
ceedings by her husband. In any such proceedings the
husband and wife respectively are competent witnesses and,
except when defendant, compellable to give evidence for or
against each other (w).
3. What constitutes taking and carrying away.
Taking is either actual or constructive : Actual, when the
thief directly takes the goods out of the possession of the
owner or his bailee invito domino {w), by force or by stealth :
Constructive, when the owner delivers the goods, but either
does not thereby divest himself of the legal possession, or
the possession of the goods has been obtained from him by a
trick and in pursuance of a previous intent to steal them.
The law on this subject may be considered under the
following heads :
A. Where, by the delivery, the owner of the goods intends
to pass not only the possession, but the right of property also.
B. Where the delivery does not alter the possession in law.
C. Where there is a constructive taking.
A. Where the right of property as well as the 'possession is
intentionally parted with by the delivery there can be no
larceny, however fraudulent are the means by which the
delivery of the goods is procured. The person, however, who
committed the fraud may be open to a charge for another
ofPence, namely, obtaining goods by false pretences. If the
property has once passed, no subsequent act by the person in
whom the right of property has vested can be construed into
larceny, whatever the intent of that person may be. Thus A.
buys a horse from B., mounts it, says he will return
immediately and pay, intending all the time to defraud the
(u) 47 & 48 Vict. c. 14.
(w) A slight apparent exception to the rule that the taking must be invito
domino occurs in the case of the owner receiving intimation of the proposed
theft, and resolving to allow it to be carried out in order to convict the thief,
R. V. Eggington, [1801] 2 Leach, 913.
LARCENY. 205
seller. 13. says, "Very well." A. rides away and never
returns. There is no larceny, because the property as well
as the possession is parted with (a;). So in all cases of selling
on credit.
It is the same if the property is passed by the servant of
the owner, provided that the servant has authority to part
with the property, but not if he has authority to part merely
with the possession. Thus, if the servant of B. is authorised
only to let out horses on hire, and he, in the case given above,
purports to sell the animal to A., it is larceny in A. (y).
B. Where the delivery does not alter the possession in law,
in other words, where, although there is a delivery of the
goods by the owner, yet the possession in law remains in him,
the goods may be stolen by the person to whom they are thus
delivered. Thus it is larceny at common law for a servant
who has merely the care and oversight of the goods of his
master, as the butler of the plate, to appropriate those goods.
And here the felonious intention need not exist at the time
of the delivery, inasmuch as the delivery is merely for
custody, the possession legally remaining in the master. The
master must, however, have been in possession; for if the
goods are delivered to the servant for the master's use, and
the servant does not deliver, but converts them to his own use,
this is not larceny, but embezzlement; as if a shopman
receives money from one of his master's customers, and,
instead of putting it into the till, secretes it (z).
There are other cases in which the possession, though
physically parted with, still remains unchanged in the eye of
the law. For example, when the owner is present all the
time the goods are in the physical possession of the accused,
and has no intention of relinquishing his dominion, as when
a lady handed a sovereign to the prisoner, asking him to
procure her a ticket, and he ran off with it, he was convicted
of larceny (a).
(I) R. V. Harvey, [1787] 1 Leach, 467.
(y) V. R. V. Middletoji, [1873] L. R. 2 C. C. R. 38; 42 L. J. M. C. 73.
(z) R. V. Bull, [1797] 2 Leach, 841.
(a) R. V. Thompson, [1862] 32 L. J. M. C. 53.
206
LARCENY.
So a bare use of the goods of another does not divest the
owner of his possession in law. Thus it is larceny for a person
to fraudulently convert to his own use the plate he is using
At an inn (6).
C. Where there is a constructive taking. This, under the
Act, occurs where the possession is obtained in four ways: —
(a) By any trick. Where the possession of goods is obtained
animo furandi, by the offender employing some trick or device,
the owner not intending to part with the 'pro'perty in the
goods, though he does with the temporary possession, this is
larceny, though there be a delivery in fact. Thus, A. goes
to B.'s shop, and, with the intention of stealing the goods,
says that C. wants some shawls to look at, which is untrue.
B. gives A. some shawls for C. to select from. A. converts
them to her own use. This is larceny in A., because B. only
intended to part with the possession and not the property
until the selection was made by C. (c). But where a seller
intends to pass the property in the goods, or to confer a
power to pass the property, the person obtaining the goods,
however fraudulently he may have acted, does not commit
larceny. So where a person by fraudulent misrepresentation
obtains the delivery of a specific chattel to himself on appro-
bation, or on sale or return, from a person intending to sell
it, and then converts it to his own use, the offence is obtain-
ing by false pretences and jiot larceny, as by converting the
article the defendant is taken to have approved it in
pursuance of his power under the contract, and so to have
effectually passed the property either to himself or to the
person to whom he may have sold or pledged it [d).
Ring-dropping . — Another example of larceny of this class
is the practice of " ring-dropping." The prisoner pretends to
find a ring wrapped in paper appearing to be a jeweller's
receipt for a "rich brilliant diamond ring." He offers to
ih) Archbold, 514.
(c) R. V. Savage, [1831] 5 C. & P. 143.
id) Whitehorn v. Davison, [1911] 1 K. B. 463.
LARCENY. 207
leave the ring with the victim if the latter will deposit his
watch as security for the return of the ring. The watch is
taken away by the prisoner, and the victim afterwards finds
that the ring is almost valueless. This is larceny, as the
owner of the watch did not intend to part with his property
in it (e).
Welshing. — What is known as ** welshing" falls also
within the category of larcenies by trick. In one of these
cases the prisoner, just before a race was run, obtained from
the prosecutor, who made with him two bets, two sums of five
shillings, on the representation that if the horse which the
prosecutor backed won he would receive back the moneys
deposited and more besides; and the horse which was backed
did win, but the prisoner during the race went off with the
money, and when later in the day found by the prosecutor
declined to pay; this was held to be larceny, inasmuch as the
prosecutor never intended to part with the property in the
money, except in a certain event, which did not happen, and
there was evidence of a preconcerted design on the part of the
prisoner to get the prosecutor's money by a fraud and a
trick (/). Again, where the prisoner agreed to sell a horse
to the prosecutor for £23, of which £8 was paid at once, the
agreement being that the balance should be paid on delivery
of the horse, but the prisoner drove the horse away and never
delivered it, it was held that the prisoner was rightly con-
victed of larceny of the £8, as the prosecutor only paid it
as a deposit and did not intend to part with his property in
it except upon condition that he received the horse (g). Many
cases of this kind show how very narrow the line is between
this offence and that of obtaining by false pretences (h). The
true distinction between them is that in the former case the
owner does not intend to part with the property in the goods,
but in the latter he does, as a rule, mean to part with it (i).
ie) R.v. Patch, [17821 1 Leach, 238.
(/) R. V. Buckmaster, [1888] 20 Q. B. D. 182; 57 L. J. M. G. 25.
(g) R. V. Russett, [1892] 2 Q. B. 312; 67 L. T. (N. S.) 124.
(h) V. Oppenheimer v. Frazer and Wyatt, [1907] 2 K. B. 50; 76 L J K B
806. See also ft. v. McKale, L. R. 1 C. C. R. 125; 37 L. J. M C 97
(t) V. p. 190.
208 LARCENY.
(b) By intiTnidation. — The fact that there is an actual
delivery of goods does not divest the deed of the character of
larceny, if the defendant, having the animus furandi, obtains
them by frightening or threatening the owner. Thus the
prisoner, who was conducting a mock auction, knocked down
goods to the prosecutrix for 26s., knowing that she had not
bid. He and a confederate then intimidated her by telling
her that she could not leave the auction-room until she had
paid, in consequence of which she did pay. It was held that
this was larceny, as there was no real consent on her part (A-).
And, if menaces are used to extort an excessive price, it is
immaterial that some money is at the time owing to the
prisoner from the prosecutor (Z).
(c) Under a jnixtaJce on the part of the owner with J^nowledge
on the part of the taker that possession has been so obtained. —
Thus, A. was a depositor in a Post Office savings bank and
had lis. to his credit. He gave notice to withdraw 10s., and
a warrant for that amount was sent to him and a letter of
advice to the Post Office. The clerk, in paying, by mistake
referred to another letter of advice and paid to A. the sum
of £6 Ss. lOd. A. took up the money, knowing of the
mistake and having at the time the animus furandi. It was
held that A. was guilty of larceny (m).
But if property is given by the owner to the accused under
a mistake of which the accused was not aware when he
received it, it is doubtful whether he is guilty of larceny
if, afterwards, on discovering the mistake, he fraudulently
converts the property to his own use (n).
(d) By finding, where at the time of the finding the finder
believes that the owner can be discovered by taking reasonable
(k) R. V. McGrath, [1870] L. E. 1 C. C. R. 205; 39 L. J. M. C. 7.
(l) R. V. Lovell, [1881] 8 Q. B. D. 185; 50 L. J. M. C. 91.
(m) R. V. Middleton, [1873] L. R. 2 C. C. R. 38; 42 L. J. M. C. 66.
(n) Archbold, 509; R. v. Ashwell, [1885] 16 Q. B. D. 190; 55 L. J. M. C. 65.
If the receipt of the property was innocent the subsequent fraudulent appropria-
tion does not amount to larceny (R. v. Flotoers, 16 Q. B. D. 643; 55 L. J. M. C.
179). But the receipt does not necessarily in all cases take place at the time
when physical possession is first taken (R. v. Mortimer, 1 Cr. App. R. 21).
LARCENY. 209
steps. — It must be noticed that this part of the section only
defines a species of "taking." In order to constitute larceny
there must also at the time of the taking, as here defined, be
the criminal intent specified in section 1 (1). This was also
ihe common law rule (o).
The taking must be of another's goods. Therefore a person
cannot steal his own goods, if they are in his own possession,
though he may be guilty of larceny by fraudulently taking
possession of them from a bailee (p). And, as this example
shows, there may be larceny though the person from whom
possession is taken has not the complete ownership, for, by
the Act, " owner " includes any part owner, or person having
possession or control of or a special property in the goods (q).
Asportation. — In addition to the " taking " there must also
be a carrying aicay or asportation. This asportation must be
proved as well as a bare taking. Thus to handle a bale of goods
is not larceny ; but the slightest removal from the place which
it occupies will suffice to make it so ; it is not necessary that the
prisoner should succeed in carrying the goods away. Thus,
removing the goods from the head to the tail of a wagon,
with intent to steal; or, with like intent, drawing a book from
a coat an inch above the pocket, though it fall back again,
is enough to constitute an asportation (r). But if a thing is
attached to something else, it must be completely detached,
and, therefore, where the goods could not be carried off
because of a string attaching them to the counter, the prisoner
was acquitted (.<f). The offender may, however, be indicted
for an attempt to steal, or upon the indictment for larceny
he may be found guilty of, and punished for, an. attempt to
steal {t).
It is not necessary that the taking should be lucri causa,
or with the object of gain of a pecuniary character. For
(o) R. V. Thurhorn, 2 C. & K., at p. 839; 18 L. J. M. C. 143; R. v. Clyde,
[1868] L. R. 1 C. C. R. 139; 37 L. J. M. C. 107.
(p) R. V. Wilkinson, R. k R. 470.
(q) 8. 1, 8ub-s. 2 (iii).
(t) p. V T}wmpson, [1826] 1 Mood. C. C. 78. Larceny Act, 1916, 8. 1,
Bub-8. 2 fii).
(«) 8. 1, Hub-8. 2 (ii).
(t) 14 & 15 Vict. c. 100, 8. 9.
C.L. 14
210
LARCENY.
example, it was held to be larceny for a man to take another's
horse, back it into a pit, and thereby kill it, the object here
being to screen an accomplice who had been charged with
stealing it (u). And so a person was convicted of larceny
who destroyed a letter in order to suppress enquiries as to
her character, which enquiries she supposed were contained
therein (iv). It was formerly held to be larceny for a servant
to supply his master's horses, &c., with food belonging to
the master additional to the quantity usually allowed, even if
the intent of obtaining a private benefit {e.g., ease in looking
after the horses) was negatived (x). Cases of this kind are,
however, now provided for by statute (z), which enacts that
such conduct shall be punished on summary conviction by
imprisonment not exceeding three months, or fine not exceed-
ing £5, and that the magistrate may dismiss the case if he
thinks it too trifling.
Stealing for which no special punishment is provided under
this Act or any other Act for the time being in force is simple
larceny, and is a felony punishable with penal servitude for
five years and, in case of a male under sixteen, also with
whipping (a).
The punishment for stealing by any tenant or lodger any
chattel or fixture let to be used in or with the house or lodging
is imprisonment not exceeding two years. If the value of the
property exceeds £5, penal servitude to the extent of seven
years may be awarded. In either case a male under sixteen
may also be once whipped (h).
Larceny by clerks or servants of money or goods belonging
to, or in the possession or power of, their master or employer,
is punishable by penal servitude to the extent of fourteen
years (c).
Penal servitude for ten years may be awarded even for
simple larceny if the offender has been previously convicted
(a) R. V. Cabbage, [1815] R. & R. 292.
(to) R. V. Jones, [1847] 2 C. & K. 236.
(t) R. v. Privett, [1846] 2 C. & K. 114.
(2) 26 & 27 Vict. c. 103, s. 1.
(a) s. 2.
(b) 8. 16.
(c) s. 17, sub-s. 1.
LARCENY. 211
of felony. Penal servitude for seven years may be awarded
for simple larceny, or any offence punishable like simple
larceny if the offender has been previously convicted (i) of
any indictable misdemeanour punishable under this Act, (ii)
twice summarily of any offence punishable under the Larceny
Act, 1861, or the Malicious Damage Act, 1861, or this Act {d).
AGGRAVATED LARCENY.
Larceny attended by circumstances of aggravation is punish-
able more severely than simple larceny. This increased
severity is the test to indicate what the law regards as
aggravations. If the prosecution fail to prove such additional
circumstances, the prisoner may be found guilty of simple
larceny.
" The principal aggravations now in force are either in
respect of the nature of the thing stolen, as in the case of
cattle, goods in the process of manufacture, and wills; or in
respect of the manner in which they are stolen, as with or
without arms and violence ; or in respect to the ylace from
which they are stolen, as from the person, in a dwelling-
house to the value of £5, in a church or chapel, from a ship
in harbour, and from a ship in distress; or in respect 6f the
person by whom they are stolen, as in the case of agents,
bankers, and fraudulent trustees, servants, public officers, and
persons previously convicted [e).
Some of these have already been noticed; the others now
demand our consideration.
(a) Goods in 'process of manufacture.
The goods which are under the protection of the severer
penalties are the following : Woollen, linen, hempen or
cotton yarn, or any goods or articles of silk, woollen, linen,
cotton, alpaca, or mohair, of of any of these materials mixed
with each other or with some other material, while placed
(d) 8. 37, 8ub-88. 1 and 2.
(e) St. Dig. 136 a8t ed.).
212 LARCENY.
during any stage of manufacture in any building, field, or
other place. The stealing of any of these (to the value of
ten shillings) during any stage of manufacture is punishable
by penal servitude to the extent of fourteen years (/).
(b) From Vessels, Docks, Sfc.
Stealing (i) any goods in any vessel, barge, or boat of any
description, in a haven, port of entry or discharge, or upon a
navigable river or canal; (ii) any goods from a dock, wharf,
or quay adjacent to any such haven, port, river, canal, creek,
or basin; (iii) any part of a ship or vessel in distress, or
wrecked, stranded, or cast on shore, or any goods, merchan-
dise, or articles of any kind belonging to such ship or vessel,
is punishable by penal servitude to the extent of fourteen
years (g).
(c) By those in the Public Service, or Police Constables.
For any one employed in the public service of His Majesty,
or in the police, to steal any chattel, money, or valuable
security, belonging to or in possession or power of His
Majesty, or entrusted to, or received qt taken into possession
by the offender by virtue of his employment, is punishable by
penal servitude to the extent of fourteen years (h).
(d) Robbery.
Larceny from the person is either by privately stealing or
by open and violent assault. The latter, usually termed
" robbery," will be treated of first, the former comprising all
other cases of stealing from the person.
Robbery is the felonious and forcible taking from the person
of another, or in his presence, against his will, of any money
or goods to any value, by violence, or by putting him to fear
by threats of any kind of injury, whether to the person,
property, or reputation (?'). The rules as to larceny in general
(/) s. 9.
(g) s. 15
(h) 8. 17, sub-s. 2 (a).
(t) 2 East, P. C. 707. As to extorting money by means of threats, v. ante,
pp. 86—88.
LARCEXY. 213
apply, and therefore the prosecution must prove the same
points as in larceny and certain others in addition.
The gist of the aggravation in this case is the force or bodily
fear. It is not necessary to show that both were present.
Though no violence was used, it will suffice if it can be proved
that the goods were delivered to the prisoner by the party
robbed under the impression of a certain degree of fear and
apprehension. The fear is not confined to an apprehension of
bodily injury, but, on the other hand, it must be of such a
nature as in reason and common experience is likely to induce
a person to part with his property against his will, and to put
him, as it were, under a temporary suspension of the power
of exercising it through the influence of the terror im-
pressed (k). It is not necessary that the danger should be
impending on the person of the party robbed; it may be on
those dear to him, as his children, or on his house (l). It is
not, however, necessary to prove that the fear actually existed,
if it be shown that the circumstances were such as were
calculated to create a fear of the nature indicated (w). And
if this be shown, the resort to some pretence by the offender
will not divest the act of the character of robbery; as if a
person flourishing a sword begs alms; or by the same means
compels some one to swear that he will return with money,
the fear of the menaces still continuing to operate when the
money is delivered.
Though there be no fear, yet if there is actual force or
violence, it is a robbery; as where the prisoner knocks down
the prosecutor from behind, and steals from him his property
while he is insensible on the ground. But the rule appears
to be well established that no sudden taking or snatching of
property unawares from a person is sufficient to constitute
robbery unless some injury be done to the person, or there be
a previous struggle for the possession of the property, or some
force used to obtain it (n).
(k) n. V. Donnallv. ri7791 2 East, P. C. 713, 715.
(I) R. V. Astley, [1792] 2 East, P. C. 729.
(m) Archbold, 616.
(n) Archbold, 616; R. v. Steward, [1690] 2 East, P. C. 702.
214 LARCENY.
The force or fear must precede or accompany the taking, so
that a subsequent scuffle or putting to fear in order to keep
the property will not constitute a robbery (o).
To constitute a taking, the robber must actually obtain
possession of the goods ; so that it would not be robbery to cut
a man's girdle in order to get his purse, the purse thereby
falling to the ground, if the robber was compelled to run oft'
before he could take it up. In the case of simple larceny there
must be some severance of the property. In robbery there
must be something more, namely, a complete removal from
the person of the party robbed. Removal from the place
where it is, if it remains throughout with the person, is not
sufficient (p).
The taking must be froTn the 'person or in the presence of
the party robbed. Thus it is robbery to put a man in fear,
and then in his presence to drive away his cattle. So also by
threats to compel him to deliver up his property, though the
robber never touched his person {q).
The taking must be against the will of the person robbed.
Therefore when the prosecutor, through a third party, procured
others to commit a robbery upon him in order that he might
get the reward upon the conviction, it was held not to be a
robbery (r).
Robbery may be punished by penal servitude to the extent
of fourteen years. If a robbery is accompanied by violence,,
either at the time of, or immediately before, or immediately
after such a robbery; or if a robbery or assault with intent
to rob (i) is by a person armed with any offensive weapon or
instrument,, or (ii) is by two or more persons, penal servitude
to the extent of life may be awarded, and, in the case of a
male, whipping {s).
(o) R. V. Gnosil, [1824] 1 C. & P. 304.
ip) R. V. Thompson, [1825] 1 Mood. C. C. 78; but see R. v. Lapier, [1784]
1 Leach, 320. Where there is not a complete severance the jury may convict of
simple larceny, R. v. Taylor, [1911] 1 K. B. 674.
iq) Archboid, 619.
ir) R.v. Macdaniel, [1756] Fost. 121, 128.
is) s. 23, sub-ss. 1 and 2.
lahceny. 215
(e) Stealing from the person.
Under this head fall all other cases of stealing from the
person, without violence or putting to bodily fear, as ordinary
pocket-picking. An actual taking must be proved, as the
nature of the case precludes there being merely a constructive
taking, such as a delivery under threats, which would, in
robbery, amount to a taking.
The principles of robbery as to the severance, taking,
intent, &c., generally apply. The punishment is the same as
for simple robbery, namely, penal servitude to the extent ol
fourteen years (t).
(f) Assault with intent to rob.
It is convenient to notice this offence here, seeing that the*
evidence upon an indictment for such assault usually proves.
a robbery, with the exception of the taking and carrying away,
which for some reason are not effected. No actual violence
need be done, but anything done in the presence of the party
intended to be robbed, with reference to him, in furtherance
of the intent to rob him, will constitute the assault (u). Nor
need there be any demand of money, if the intent to rob is
proved by other evidence.
The punishment for this felony (save and except where a
greater punishment is provided by the Act) (w) is penal
servitude to the extent of five years {x).
If on an indictment for robbery the jury are of opinion that
the prisoner did not commit robbery, but did commit an
assault with intent to rob, they may find him guilty of the
latter offence, and he will be punished accordingly (y). But
on an indictment for assault with intent to rob, the defendant
cannot be convicted of a common assault (z).
(t) 8. 14.
(«) Archbold, 623.
(w) These cases are noticed above, t. p. 214.
(x) 8. 23, 8ub-8. 3.
(y) 8. 44, Bub-8. 1.
(2) R. V. Woodhall, [1872] 12 Cox, 240; see post, p. 401, where the reason
is stated.
216 LARCENY.
LARCENY, ETC., IN RELATION TO THE PO.ST OFFICE.
The law on this subject is contained chiefly in the Post
Office Act, 1908 (a). Two classes of offences may he dis-
tinguished according as the offenders are (a) Post Office
employees; (b) persons generally, whether so employed or not,
(a) For an officer of the Post Office,
To steal, or for any purpose whatever embezzle, secrete, or
destroy a postal packet in course of transmission by post, is a
felony, punishable by penal servitude not exceeding seven
years, or imprisonment not exceeding two years. If the postal
packet contains any chattel, money, or valuable security, the
penal servitude may be to the extent of life (h).
Contrary to his duty, to open or procure or suffer to be
opened a postal packet in course of transmission by post, or to
wilfully detain, delay, or procure to be detained, &c., such a
postal packet, is a misdemeanour, punishable by fine or im-
prisonment, or both. This does not extend to the opening of a
letter which is misdirected or refused by the addressee, nor
where the opening is authorised in writing by a Secretary of
State (c).
To issue a money order with a fraudulent intent is a felony
punishable by penal servitude for seven years or imprisonment
for two years, and an officer who reissues a money order
previously paid is to be deemed to have issued it with a
fraudulent intent (d).
(b) For any person.
To steal a mail bag or to steal therefrom or from a post
office or mail or from an officer of the |X)st office any postal
packet in course of transmission by post, or to steal out of
such postal packet any chattel, money, or valuable security.
(a) 8 Edw. VII. c. 48.
(b) Ibid. 8. 55; Larceny Act. 1916. s. 18.
(c) 8 Edw. VII. c. 48, s. 56. Carelessness, neglifjence, drunkenness, and
other misconduct by officers of the Post Office are punishable on summary
conviction by a fine of JE20, Ibid. s. 57.
id) Ibid. a. 58.
LARCENY. 217
or to stop a mail with intent to rob or search the same, is a
felony, punishable by penal servitude to the extent of life, or
imprisonment not exceeding two years (e).
To unlawfully take away or open a mail-bag sent by any
vessel employed by the Post Office under contract, or to un-
lawfully take a postal packet out of any such bag, is a felony,
punishable with penal servitude to the extent of fourteen
years, or imprisonment not exceeding two years (/).
To fraudulently retain, or wilfully secrete, keep, or detain,
or neglect or refuse to deliver up when required by an officer
of the Post Office, any postal packet in course of transmission
by post and which ought to have been delivered to any other
person, or which has been found by him or by any other
person, is a misdemeanour, punishable by fine and imprison-
ment (g).
To solicit or endeavour to procure any other person to
commit an offence punishable by the Post Office Act, 1908,
is a misdemeanour, and is punishable by imprisonment not
exceeding two years (Ji).
For any person not employed under the Post Office wilfully
and maliciously and with intent to injure another person to
open or cause to be opened a postal packet which ought to
have been delivered to the latter gerson, or to do anything
whereby the due delivery of such letter is prevented or
impeded, is a misdemeanour punishable by a fine of £50, or by
imprisonment for six months. This provision does not apply
where the person opening or impeding the delivery of the
letter stands in loco parentis to the person to whom it is
addressed, and no prosecution for this oft'ence can be com-
menced except with the consent of the Postmaster-General (i).
In connection with this subject, it should be noticed that
the expression " postal packet " includes a telegram, and that
written or printed messages delivered at a post office for the
purpose of being transmitted by telegraph are deemed post-
(e) Ibid. 8.60; Larceny Act, 1916, s. 12.
(/) Ibid. 8. 51.
(g) Ibid. 8. 53.
(h) Ibid. 8. f.9.
(t) Ibid., 8. 54.
218 LAHCENY.
letters (Jc). For officials of the Post Office contrary to their
duty to disclose or intercept telegraphic messages is a mis-
demeanour, punishable by imprisonment not exceeding twelve
months (Z).
RECEIVING STOLEN GOODS.
The offence of receiving stolen property, knowing it to have
been stolen, was at common law a misdemeanour only.
This was, however, altered by various statutes, and now, by
the Larceny Act, 1916 (m), '
(i) Every person who receives any property knowing
the same to have been stolen or obtained in any way
whatsoever under circumstances which amount to felony
or misdemeanour is guilty of an offence of the like degree,
and is liable to penal servitude for fourteen years in case of
felony and seven years in case of misdemeanour, and in
either case also, if a male under sixteen, to a whipping.
(ii) A person who receives any mail-bag, postal packet, or
any chattel, or money, or valuable security, the stealing, or
taking, or embezzling, or secreting whereof amounts to a
felony under the Post Office Act, 1908, or this Act, knowing
the same to have been feloniously stolen, &c., and to have been
sent or to have been intended to be sent by post, is guilty of
felony and liable to the same punishment as if he had
stolen, &c., the same.
(iii) Every such person may be indicted and convicted,
whether the principal offender has or has not been previously
convicted, or is or is not amenable to justice.
By the Larceny Act, 1861 (n), if the principal offence is
punishable on summary conviction, the receiver is liable, on
summary conviction, to the same punishment as the principal.
The larceny or other felonious taking must be proved.
For this and every other purpose the principal felon is a
(fe) Ibid. s. 89; 32 & 33 Vict. c. 78, s. 23.
(Z) 31 & 32 Vict. c. 110, s. 20; v. 47 & 48 Vict. c. 76, s. 11, as to similar
offences by the servants of private telegraph companies,
(m) s. 33.
(n) 24 & 25 Vict. c. 96, s. 97.
LARCENY. 219
competent witness; but of course the jury will form their own
opinion as to the weight of his testimony; and if the thief is
the only witness, the Judge will advise an acquittal (o).
If after the larceny the goods have again come into the
possession of the rightful owner, who for the purpose of
entrapping the supposed receiver allows them to be delivered
to him, the latter cannot be convicted of receiving them
knowing them to have been stolen (p).
Next it must be proved that the goods were received by the
prisoner into his actual possession ; though a manual possession
is not necessary, and a joint possession with the thief is
sufficient (q). The goods being found in his possession is good
presumptive evidence of his having received them (r).
The knowledge of the prisoner at the time he received the
goods that they were stolen is proved either directly by the
evidence of the principal felon, or circumstantially, as by
showing that the prisoner bought them much under their
value, or denied that he had them in his possession.
By the Larceny Act, 1916 [s], it is provided that upon the
trial of any person for receiving stolen property or having in
his possession stolen property, for the purpose of proving guilty
knowledge there may be given in evidence at any stage of the
proceedings (a) the fact that other property stolen within
twelve months preceding the date of the offence charged was
found or had been in his possession; (b) the fact that within
the five years preceding the date of the offence charged he was
convicted of any offence involving fraud or dishonesty. This
last may not be proved unless (i) seven days' notice in writing
has been given to the offender that proof of such previous con-
viction is intended to be given; (ii) evidence has been given
that the property in respect of which the offender is being tried
was found or had been in his possession.
(o) ft. V. Robinson, [1864] 4 F. dk F. 43.
(p) ft. V. Villensky, [1892] 2 Q. B. 597; 61 L. J. M. C. 218; ft. v. Dolan,
[1856] Dears. 436.
(q) ft. V. Smith, [1855] 24 L. J. M. C. 135.
(r) Archbold, 703.
(s) 8. 43, 8ub-s. 1. Such evidence ought not to be admitted merely because a
count for receiving is added if the real offence charged is that of stealing and
not receiving (ft. v. CxTod, [1906] 22 T. L. R. 720).
I
220 LARCENY.
Any number of receivers, though they received the property,
or any part thereof, at different times, may be charged in the
same indictment, and tried together (t). And in any case,
upon the trial of two or more convicted for jointly receiving,
the jury may convict one or more of separately receiving (w).
With a view to the prevention of crimes of this and similar
descriptions, it has been provided that any one who keeps
a lodging, public, beer, or other house or place where
intoxicating liquors are sold, or any place of public entertain-
ment or public resort, or a brothel, and knowingly lodges or
harbours thieves or reputed thieves, or allows the deposit of
goods therein, having reasonable cause for believing them to
be stolen, is liable to a penalty not exceeding £10, or, in
default of payment, imprisonment not exceeding four months ;
or instead of, or in addition to, such punishment, the Court
may require him to enter into recognisances for keeping the
peace or being of good behaviour. There are also provisions
for the forfeiture of licences on conviction for such
conduct {w).
If a pawnbroker is convicted on indictment of receiving
stolen goods knowing them to be stolen (or of any fraud in
his business) the Court may direct that his licence shall cease
to have effect (it).
Formerly when property was stolen abroad no indictment
would lie for receiving such property within the jurisdiction,
knowing it to have been stolen. But it has now been provided
that if any person without lawful excuse, knowing the same
to have been stolen or obtained in any way whatsoever under
such circumstances that if the act had been committed in the
United Kingdom it would have been a felony or mis-
demeanour, receives or has in his possession any property so
stolen or obtained outside the United Kingdom he is guilty of
an offence of the like degree (whether felony or misdemeanour)
and punishable by penal servitude for seven years (y).
(t) Ibid. 8. 40, sub-8. 3.
(u) Ibid. 8. 44, sub-s. 5.
(w) 34 & 35 Vict. c. 112, ss. 10, 11.
(x) 35 & 36 Vict. c. 93, s. 38.
(y) 8. 33. sub-8. 4.
LARCENY. 221
We frequently hear of the so-called doctrine of Recent
Possession, that is, of the possession of property within a short
time after it has been stolen. What is meant is that, accord-
ing to the circumstances of the case, the recent possession is
some evidence that the person in possession stole the property,
or received it knowing it to have been stolen. This evidence
may be of the strongest or of hardly any weight at all. It
will vary not only according to the length of time which may
have elapsed between the stealing and the receiving, but also
according to other considerations, one of the chief of which
is the nature of the property, whether it be of a description
which can easily pass from one person to another. Thus the
possession of a diamond ring a year after the theft might be
more indicative of a felonious receiving than the possession
of a pound of cheese after the lapse of a week (2).
The onus of proving guilty knowledge, however, always
remains upon the prosecution. If the prosecution proves
recent possession of stolen property by the accused the jury
may, in the absence of any explanation by the accused, find
him guilty of stealing or receiving. But,if an explanation is
given which the jury think may reasonably be true, although
they are not convinced of its truth, the prisoner is entitled
to be acquitted, as in that case the prosecution has failed to
discharge the duty cast upon it of satisfying the jury beyond
reasonable doubt of the guilt of the accused {a).
(z) n. V. Partridqe, [1836] 7 C. & P. 551; R. v. Langmead. [1864] T.. k C.
427 ; R. V. Deer, [1862] 32 L. J. M. C. 33.
(a) R. V. Schama; R. v. Abramovitch, 84 L. J. K. B. 396; 11 Cr. App. R. 45.
CHAPTER II.
EMBEZZLEMENT.
Embezzlement may be defined as the unlawful appropriation
to his own use by a servant or clerk of money or chattels re-
ceived by him for and on account of his master or employer;
the term is, however, often applied to frauds by trustees and
other persons acting in a fiduciary character. It differs from
larceny by clerks or servants in this respect : embezzlement
is committed in respect of property which is not at the time
in the actual possession of the owner, whilst in larceny it is.
An example will illustrate the distinction. A clerk receives
£20 from a person in payment for some goods sold by his
master; he at once puts it into his pocket, appropriating it
to his own use; this is embezzlement. The clerk appropriates
to his own use £20 which he takes from the till; this is
larceny.
The Larceny Act, 1916 (b), provides that whosoever, being
a clerk or servant, or person employed in the capacity of a
clerk or servant, shall fraudulently embezzle the whole or
any part of any chattel, money, or valuable security delivered
to or received, or taken into possession by him for or in
the name or on the account of his master or employer, shall
be guilty of felony, punishable by penal servitude for four-
teen years, and, if a male under sixteen, also a whipping (c).
The principal points to be noticed are the following :
(i) Proof that the prisoner was employed as clerk or servant.
(ii) Proof of his receipt for, or in the name of, or on account
of, the employer or master.
(iii) Proof of the unlawful appropriation.
(b) 6 & 7 Geo. v. c. 50. (c) 8. 17, sub-s. 1.
EMBEZZLEMENT, 223
(i) Proof of the Emjjloyment as Clerk or Servant.
It is for the jury to determine whether the prisoner is a
clerk or servant within the meaning of the statute, the Judge
explaining what is necessary to constitute such a relation,
A clerk or servant need not be in the employment of a
person in trade. The particular name by which he is called,
as accountant, collector, overseer, &c,, is not material if the
general relationship of master and servant can be proved (d).
It is sometimes difficult to determine whether the required
relationship exists. The employment need not be continuous,
for it was held to be embezzlement though the prisoner was
employed to receive in a single instance only (e). The mode
of remuneration for service is not decisive — that is, whether
by commission or by salary. This will not distinguish an
agent from a servant (/). Nor will a participation m the
profits of the business necessarily prevent the character of
servant from arising (g). The question is not conclusively
decided by the consideration whether the whole or only a part
of the man's time is devoted to the other's business (h).
Probably the safest criterion is whether the prisoner was
bound to obey the prosecutor's orders so as to be under his
control, or whether (as is frequently the case with mere
commission agents) he was at liberty to work or not as he
pleased (i) ; and it has been several times decided that a person
who is employed to get orders and receive money, but who is
at liberty to get those orders and receive that money where
and when he thinks proper, is not a clerk or servant within
the meaning of the Act (k).
The embezzlement or fraudulent application or disposal by
persons in the public service or by police-constables of any
id) V. R. v. Squire, [1818] R. & R. 349.
(e) R. V. Hughes, [1^32] 1 Mood. C. C. 370
if) R. V. Bailey, [1871] 12 Cox, 56. s
(g) ft. V. M'Donald, [1861] L. & C. 85.
(h) ft. V. Tite, [1861] L. & C. 29; 30 L. J. M. C. 142.
(t) The reader is referred to the cases given by Archbold (591) for a fuller
examination of this question ; v. especially ft. v. Nequs, [1873] L. R. 2 C. C. R
34; 42L. J. M. C. 62.
(k) ft. V. Bowers, [1866] L. R. 1 C. C. R. 41; 35 L. J. M. C. 206j ft. v.
Harris, [1893] 17 Cox. 656.
224 EMBEZZLEMENT.
chattel, money, or valuatjle security, whicli is entrusted to,
or received, or taken into possession by them by virtue of their
employment, is subjected to generally the same consequence
as if the embezzlement were from an ordinary master (Z).
Similar provisions have also been made in respect of such
offences by persons employed under local marine boards (m).
(ii) The Receipt for, ^'c, the blaster.
The mere fact of receipt is usually proved by the person
who paid the money, &c., to the prisoner, or by his own
admission. That he received it for, in the name of, or on
account of his master, the jury may infer from the circum-
stances of the case. But it will not be embezzlement if the
prisoner received the money from his master in order to pay
it to a third person (71). It is immaterial that the money was
not really due to the master. The receipt need not now be by
virtue of the servant's employment in order to constitute
embezzlement ; and therefore it may be embezzlement, though
he had no authority to receive. But it is necessary that the
money, &c., should be the property of the master when re-
ceived by the servant, and therefore money appropriated by a
servant in consideration of work which the prisoner did by the
unauthorised use of his master's tools, the payer contracting
with the servant only, does not constitute embezzlement (o).
(iii) The unlawful Appropriation.
The usual evidence given of the appropriation is that,
having received the money, &c., the prisoner denied the
receipt, or accounted for other moneys received at the same
time, or after, and not for it, or rendered a false account, or'
practised some other deceit in order to prevent detection.
The mere non-payment to the master of money which the
prisoner has charged himself in his master's book with receiv-
(l) s. 17, sub-8. (b). Larceny by the above, v. p. 212.
(m) s. 17, 8ub-8. 3.
in) R. V. Smith, [1814] R. & R. 267. But the servant will be punishable
under s. 20, sub-s. 1 (iv). v. p. 226.
(o) R. V. Cullmn, [1873] L. R. 2 C. C. R. 28; 42 L. J. M C. 64.
EMBEZZLEMENT. 226
ing is not by itself a sufficient evidence of embezzlement (p).
But, on the other hand, it is no defence merely to show that
he entered the receipt correctly in the master's book if there
be other sufficient evidence of a fraudulent intention (q). If,
instead of denying the appropriation of property, the prisoner,
in rendering his account, admits the appropriation, alleging
a right to the money in himself, no matter how unfounded,
or setting up an excuse, no matter how frivolous, he ought
not to be convicted of embezzlement (r). But where it is the
prisoner's duty, at stated times, to account for and pay over
to his employer the moneys received during those intervals,
his wilfully omitting to do so is embezzlement, and equivalent
to a denial of the receipt of them {s).
As the law now stands some specific sum must be proved to
have been embezzled. It will not suffice to prove a general
deficiency in the prisoner's accounts (t).
An allegation in an indictment that money or banknotes
have been embezzled or obtained by false pretences can, so
far as regards the description of the property, be sustained by
proof that the offender embezzled or obtained any piece of
coin or any banknote, or any portion of the value thereof,
although such piece of coin, &c., may have been delivered to
him in order that some part of the value thereof should be
returned to any person and such part has been returned
accordingly (u).
Falsification of Accounts.
For a clerk, officer, servant, or other employee in those
capacities, to wilfully and with intent to defraud, destroy,
alter, mutilate, or falsify any book, paper, account, &c.,
belonging to or in the possession of his employer, or to make
(p) R. V. Hodgson, [1828] 3 C. & P. 422.
(q) R. V. Lister, [186fi] D. & B. 118.
(r) jB. v. Norman, [1842] C. & Mar. 501.
(«) R. V. Jackson, [1844] 1 C. k K. 384.
(t) R. V. Lloyd Jones, [1838] 8 C. & P. 288; R. v. Wolstenholme, [1869]
11 Cox, 313; see Rose. 475.
(u) B. 40, sub-8. 2.
C.L. 16
226 EMBEZZLEMENT.
false entries therein, is a misdemeanour punishable by pencil
servitude to the extent of seven years (iv).
Emhezzleineiit by Persons entrusted with Property, and
Agents.
Whosoever (i) being entrusted, either solely or jointly with
any other person, with any* property in order that he may
retain it in safe custody, or apply, pay, or deliver it, or the
proceeds, for any purpose or to any person; or (ii) having
either solely, &c,, received any property for or on account of
any other person, fraudulently converts the same or the pro-
ceeds thereof to his own use or the use of any other person,
is guilty of a misdemeanour and liable to penal servitude for
seven years. This, however, does not apply to acts done by
any trustee on any express trust created by a deed or will, or
any mortgagee of any real or personal property in relation to
the property affected by the trust or mortgage (a;).
For any person entrusted either solely or jointly with any
other person with a power of attorney for the sale or transfer
of any property to fraudulently sell, transfer, or otherwise
convert it to his own use, or that of any person other than the
one by whom he is entrusted, is also a misdemeanour, punish-
able with penal servitude for seven years (i/).
Factors or agents entrusted, either solely, &c., for the
purpose of sale or otherwise, with the possession of any goods
or of any documents of title to goods, who (i) without the
authority of the principal, for their own use or that of any
person other than the one by whom they are so entrusted, and
in violation of good faith, make any consignment, deposit,
transfer, or delivery of any such goods or documents, by way
of pledge, lien, or security for any money or valuable security,
(w) 38 & 39 Vict. c. 24, s. 1 ; v. also R. v. Butt, [1884] 15 Cox, 564. The
falsification of a mechanical means of accounting, e.g., a taximeter, has been
held to be within the section. R. v. Solomons, [1909] 2 K. B. 980; 79 L. J.
K. B. 8. As to use of false receipts by agents, v. p. 74.
(a;) s. 20, sub-ss. 1 (iv) and 2. As to the meanings of " entrusted " and
" received," see R. v. Grubb, [1915] 2 K. B. 683; 84 L. J. K. B. 1744; 113
L. T. 510; 11 Cr. App. K. 153.
(y) 8. 20, sub-s. 1 (i).
EMBEZZLEMENT. 227
borrowed by them (the factors, &c.); or (ii) without authority,
&c., accept any advance of any money or valuable security
on the faith of any contract or agreement to consign,
deposit, &c., such goods or documents, are guilty of a mis-
demeanour, and punishable with penal servitude for seven
years. A saving clause is added that the factor or agent will
not be liable for consigning, depositing, &c., if the property
is not made a security for or subject to the payment of any
greater sum of money than the amount which, at the time
of the consignment, &c., was due and owing to such agent
from his principal, together with the amount of any bill of
exchange drawn by or on account of such principal, and
accepted by the factor or agent (z)
Embezzlement by Trustees.
For a trustee of property for the benefit of some other
person, or for any public or charitable purpose, with intent
to defraud, (i) to convert or appropriate the same to his own
use, or that of any other person or purpose than the person
or purpose aforesaid ; or (ii) to otherwise dispose of or destroy
the property, is a misdemeanour punishable by penal servitude
to the extent of seven years. But no criminal proceedings
may be taken without the sanction of the Attorney-General.
And, if civil proceedings have been taken against the trustee,
the person who has taken such proceedings may not commence
any prosecution under this section without the sanction of
the Court or Jiidge before whom such civil proceedings have
been taken (a).
It must be noticed, however, that an offence against this
section is only committed where there is an express trust
created by some deed, will, or instrument in writing; but
the word " trustee " includes a trustee's heir or representative
and any other person upon whom the trust may have devolved,
and also an execiitor and administrator, and an official
(«) 8. 22, Biib-s. 1. A factor, etc., so entrusted with and in possession of any
document of title to poods shall be deemed to have been entrusted with the
goods represented by such document of title, s. 22, snb-g. 2.
(a) 8. 21.
228 EMBEZZLEMENT.
manager, assignee, liquidator, or other like officer, acting
under any Act of Parliament relating to joint stock companies
or bankruptcy (6).
Embezzlement by partners and other joint beneficial owners
has already been dealt with (c).
EnibezzleTnent and other Offences by Directors, Officers, and
Members of Public Companies and Corporate Bodies.
The following offences are misdemeanours, punishable by
penal servitude to the extent of seven years : —
a. For a director, member, or public officer of a body
corporate or public company to fraudulently take or apply
to his own use, or any use or purpose other than the uses or
purposes of such body or company, any of the property of the
body or company (d).
p. For a director, public officer, or manager of such body
or company to receive or possess himself of any of the property
of the company, &c., otherwise than in payment of a just debt
or demand, and, with intent to defraud, to omit to make or
have made a full and true entry thereof in the books and
accounts of the company (e).
y. For a director, manager, public officer, or member, with
intent to defraud, (i) to destroy, alter, mutilate, or falsify any
book, paper, writing, or valuable security belonging to the
body or company; or (ii) to make or concur in making any
false entry, or to omit or concur in omitting any material
particular in any book of account or other document (/).
(iii) For a director, manager, or public officer to make,
circulate, or publish, or concur in making, &c., any written
statement or account which he knows to be false in any
material particular, with intent to deceive or defraud any
member, shareholder, or creditor of such body or company,
or with intent to induce any person to become a shareholder
or partner therein, or to entrust or advance any property to
such body or company, or to enter into any security for the
benefit thereof {g).
(b) 8. 46. (c) Ante, p. 202.
id) 8. 20, sub-8. 1 (ii). (e) 24 & 25 Vict. c. 96, s. 82.
(/) Ibid. s. 83. (g) Ibid. s. 84.
EMBEZZLEMENT. 229
With regard to these cases of embezzlement by bankers,
merchants, attorneys, agents, or factors, trustees, directors,
officers, or members of bodies corporate or public companies,
it is to be noted that no person can be prosecuted for any of
these offences if they have first been disclosed by him on oath
in any proceeding ipstituted by a party aggrieved, and also
that any admission made by an accused person in bankruptcy
proceedings is not admissible in evidence against him upon
his prosecution for any of these offences (h).
For a director, officer, or contributory of a company being
wound up to destroy, mutilate, alter, or falsify any books,
papers, or securities, or to make or be privy to making any
false or fraudulent entry in any register, book, or other
document of the company, with intent to defraud or deceive
any person, is a misdemeanour, punishable by imprisonment
not exceeding two years (i).
If any person in any return, report, certificate, balance-
sheet, or other document required by the Companies (Con-
solidation) Act, 1908, wilfully makes a statement false in any
material particular knowing it to be false, he is guilty of a
misdemeanour, punishable, when the conviction is on indict-
ment, by imprisonment with hard labour for two years; or,
if the conviction is summary, by the like imprisonment for
four months; and in either case by a fine which, if it is
imposed on a summary conviction, is not to exceed £100 (Jc).
For an officer of a savings bank to receive any deposit and
not pay over the same is a misdemeanour, punishable by fine
or imprisonment, or both (1).
(h) Larceny Act, 1861, s. 85; Bankruptcy Act, 1914, s. 166; Larceny Act,
1916, 8. 43, 8ub-88. 2 and 3. By section 85 of the Act of 1861 it is also provided
that nothing in 88. 82 — 84 shall entitle any person to refuse to answer a question
in a civil proceeding on the ground that it tends to criminate himself. The
criminal proceeding is not to deprive any party of his civil remedy, but the
conviction is not to be evidence in such civil suit (b. 86).
(t) 8 Edw. VII. c. 69, 8. 216.
(&) 1 & 2 Geo. V. c. 6, 8. 5; 8 Edw. VII. c. 69, s. 281, see 6th Sched. as to
what returns, &c., are specified as being required by or for the purposes of this
Act. As to false statements, returns, &c., by railway companies, v. 29 4; 30
Vict. c. 108. «s. 15—17: 31 * 32 Vict. c. 119, s. 5; 34 & 35 Vict. c. 78, s. 10.
(J) 26 & 27 Vict. c. 87, s. 9.
CHAPTER III.
FALSE PRETENCES.
The Larceny Act, 1916, provides that erery person who by
any false pretence, with intent to defraud, obtains from any
other person any cliattel, money, or valuable security, or
causes or procures any money to be paid, or any chattel or
valuable security to be delivered to himself or to any other
person for the use or benefit or on account of himself or any
other person, shall be guilty of a misdemeanour, punishable
by penal servitude for any term not exceeding five years (r/i).
This offence is subject to the Vexatious Indictments Act (n).
It is difficult to define the offence of obtaining property by
false pretences. It may be described as the offence of obtain-
ing property by means of a false representation made by
words, writing, or conduct, that some fact exists or existed.
In some cases there seems little to distinguish it from larceny ;
the difficulty of discriminating arises chiefly where there has
been a constructive taking only, as where the owner delivers
over the goods though the possession is obtained from him
by fraud. The most intelligible distinction between false
pretences and larceny has been thus set forth (o) : " In larceny
the owner of the thing stolen has no intention to part with his
property therein to the person taking it, although he may
intend to part with the possession; in false pretences the
'owner does intend to part with his property in the money
or chattel, but it is obtained from him by fraud." The line
between the two crimes is very narrow. Thus, A. entrusts
B. with a parcel to carry to C. D. meets B. and alleges that
{m) s. 32.
(n) V. p. 330.
(o) Avcbbold, 506; v. White v. Garden, [1851] 10 C. B. 927.
FALSE PRETENCES. 231
he is C, whereupon B. gives him the parcel. It will be
larceny if B. had not the authority to pass the property; false
pretences if he had (p).
In this offence (as in larceny) there must be an intention on
the part of the accused to deprive the prosecutor wholly of his
property in the goods obtained. If a chattel is borrowed or
hired by means of false pretences, the intention being ta
return it, the offence is not committed (q). This does not,
however, apply to a loan of money obtained by false pretences,
as the property in money passes at the time of the lending (r).
The matters to be proved on an indictment for false
pretences are the following : —
i. The pretence and its falsity.
ii. That the property or some part thereof was obtained by
means of the pretence.
iii. The intent to defraud.
i. The pretence must be wholly or in part of an existing
fact; for example, a false statement of one's name and
circumstances in a begging letter. Wherever a person
fraudulently represents as an existing fact that which is not
an existing fact, and so gets money or property, he commits
the offence of obtaining by false pretences. But a mere
exaggeration will not suffice, as if a person actually in
business pretends that he is doing a good business (s); other-
wise, if he were not carrying on any business at all (t), or if
his statements are more than merely exaggerated praise and
amount to a definite misrepresentation as to the nature or
extent of his business (w). So, also, exaggerated praise of
goods is not a false pretence if it is merely as to something
which is a matter of opinion. Where, therefore, the defen-
dant stated that some poorly plated spoons were equal to
Elkington's A spoons it was held that this was a mere
(p) V. R. V. Wilkins, [1789] 1 Leach, 520.
(q) R. V. Kilham, [18701 L. K. 1 C. C. R. 261 ; 39 L. J. M. C. 109.
(r) R. V. Crossley, [1837] 2 M. & R. 17 ; R. v. Burgon, [1856] D. & B. 11.
(«) R. V. Williamson, [1869] 11 Cox, 328.
(t) R. V. Crabb, [1868] 11 Cox, 85.
(u) R. V. Cooper, 2 Q. B. D. 510; see also R. v. Rhodes, [1899] 1 Q. B. 77;
68 L. J. Q. B. 83
232 FALSE PRETENCES.
expression of opinion (w). But, on the other hand, it was held
to be a misrepresentation of fact where the defendant falsely-
represented a chain as being of fifteen carat gold when it was
merely of nine carat gold, this being a specific fact and not a
matter of opinion (x). Again, it was held to be a misrepre-
sentation of fact where th^ defendant falsely represented that
certain packages which he sold contained good tea, whereas
in fact they contained a mixture of three-quarters sand and
one-quarter tea (y).
It will be noted that the mere fact that there is a contract
between the parties does not secure from punishment the
obtaining of money by false pretences (z).
The fact must be an existing fact ; therefore it is not within
the Act for a person to pretend that he will do something
which he does not mean to do (a). But where a promise to do
a thing is coupled with a false representation by words or
otherwise that the promiser has the power to do that thing, an
indictment will lie, as, e.g., where the defendant was indicted
for obtaining money from the prosecutrix by stating that he
was unmarried and would marry her and furnish a house for
her, it was held that the statement that he was unmarried was
sufficient to justify a conviction, although his promise to
marry the prosecutrix and to furnish a house would not by
themselves have been sufficient (b). So, also, a promise may
involve a representation that certain facts or circumstances
exist. Thus, where A. obtained money by the representation
that he was shortly about to publish a directory, it was held
that this involved a representation of fact that the directory
was in process of publication (c).
(to) R. V. Bryan, [1857] 26 L. J. M. C. 84; 3 Jur. (N. S.) 620; 7 Cox, 313.
(x) R. V. Ardley, [1871] L. E. 1 C. C. E. 301; 40 L. J. M. C. 85.
iy) R. V. Fost^, [1877] 2 Q. B. D. 301; 46 L. J. M. C. 128; 36 L. T. (N. S.)
34; 13 Cox, 393.
(z) See jR. v. Kenrick, 5 Q. B. 49; and cases cited Archbold, 676.
(a) R. V. Lee, [1863] 9 Cox, 304. See also R. v. Speed, [1882] 46 L. T.
(N. S.) 174; and 62 & 63 Vict. c. 22, s. 3.
(b) R. V. Jennison, [1862] L. & C. 157 ; R. v. Giles, [1865] 34 L. J. M. C.
50; V. also R. v. Gordon, [1889] 23 Q. B. D. 354; 58 L. J. M. C. 117.
(c) R. V. Bancroft, 3 Cr. App. E. 20.
FALSE PKETENCES. 233
The false pretence need not be expressed in words; it will
suffice if the pretence is signified in the conduct and acts of
the party; for example, obtaining goods by giving in payment
a cheque upon a banker with whom the defendant has no
account, he knowing that it will not be paid on presenta-
tion (d) ; or by a person, who was not a member of the
university, obtaining goods fraudulently at Oxford by
assuming a commoner's cap and gown (e). So where a
farmer, having granted a bill of sale on all the farm stock
upon his farm, sold a large portion of such stock without
saying anything as to the ownership of it, or as to the existence
of the bill of sale, he was held to be guilty of false pretences,
for the act of selling the stock was in itself a representation
that he was the absolute owner (/). But a person who enters
a restaurant and orders and consumes refreshments, having to
his own knowledge no money to pay for them, cannot be con-
victed of obtaining the food by false pretences, although he is
liable to be indicted under the Debtors Act, 1869 (g), for
obtaining credit by means of a fraud (h).
A false pretence may be made through the medium of an
innocent agent, and the person who causes it to be made is
punishable as if he made it himself.
The indictment must state to whom the pretences were
made, and from whom the goods, &c., were obtained. But
where the false pretence is made by means of a public adver-
tisement it has been held sufficient to allege in the indictment
that the pretence was made to His Majesty's subjects, provided
it is also alleged that by means of that false pretence money
was obtained from some particular person, as the general
(d) li. V. Hazleton, [1874] L. R. 2 C. C. R. 134; 44 L. J. M. C. 11.
(e) R. V. Barnard, [18371 7 C. & P. 784.
(/) R. V. Sampson, [1885] 52 L. T. (N. 8.) 772; not following R. v. Hazel-
wood, [1883] 48 J. P. 151; v. also Eichholz v. Bannister, [1864] 17 C. B.
(N. 8.) 723.
(g) 32 & 33 Vict. c. 62, s. 13; y. p. 101.
(h) R. V. Jones, [1898] 1 Q. B. 119; 67 L. J. Q. B. 41; R. v. Wyatt, [19041
1 K. B. 188; 73 L. J. K. B. 15. ■"
234
FALSE PEETENCES.
allegation becomes particular as regards the particular person
who acts upon it (i).
If the goods are obtained by means of a forged order, note,
or other document, the party may be indicted for forgery,
the punishment for which offence is more severe. But the
prisoner will not be acquitted for the false pretence on the
ground that he might have been indicted for forgery (k).
The false pretence alleged must be set out in the indict-
ment, but it will suffice if the falsity of the substance of the
pretence alleged is proved, although every particular is not
established (/). In an indictment for receiving goods obtained
by false pretences it is not necessary to specify by what false
pretence the goods were obtained (m).
ii. That the property or some part thereof was obtained by
means of the pretence.
It is no defence to an indictment for obtaining by false
pretences that the goods obtained were not in existence at
the time when the false pretence was made, provided the
subsequent delivery of the goods is directly connected with
the false pretence, as, e.g., where the defendant by fal.se
pretences induced a wheelwright to make him a van which
was afterwards delivered to him (n). The mere fact that the
prosecutor has the Tneans of knowing the falsity of the mis-
representation is no defence (o), but if the falsity of the
pretence is known to the prosecutor, who, nevertheless, parts
with his goods with the intention of entrapping the de-
fendant, or for some other reason, the defendant cannot
be convicted of obtaining the goods by false pretences (p).
But in such a case he may be convicted upon the same
(t) R. V. Silverlock, [1894] 2 Q. B. 766; 63 L. J. M. C. 233; see Archbold,
678. In the case cited the indictment also contained a count stating that the
defendant made the false pretence to the person actually defrauded.
(k) 14 & 15 Vict. c. 100, s. 12.
(I) R. V. Hill, [1811] E. & E. 190.
(m) Taylor v. Reg., [1895] 1 Q. B. 25; 64 L. J. M. C. 11.
(n) R. V. Martin, [1867] L. E. 1 C. C. E. 56.
(o) R. V. Jessop, D. & B. 442 ; 27 L. J. M. C. 70.
(p) R. V. Mills, [1857] D. & B. 205.
FALSE PRETENCES. 235
indictment of atteTupting to obtain tliem (q), which is a
common law misdemeanour.
Again, where goods are offered to a prosecutor for sale or
in pledge and he parts with his money, relying not on the
defendant's statements, but upon his own examination of the
goods, the defendant may be convicted of attempting to
obtain money by false pretences, though not of obtaining it,
as it was not his false pretence which actually operated upon
the prosecutor's mind (r). So also where a competitor in a
race entered himself in the name of another person and
gave an untrue account of his previous performances, thereby
obtaining a start which he would not otherwise have had,
it was held that he was rightly convicted of attempting to
obtain the prize by false pretences (5).
iii. The intent to defraud.
As in other cases, the intent is generally to be gathered
from the facts of the case. It is sufficient to allege in the
indictment, and to prove at the trial, an intent to defraud
generally, without alleging or proving an intent to defraud
any particular person (t).
The intention on the part of the prisoner to pay for goods
obtained by false pretences when he might be able to do so
is no defence (u), the defendant in such a case having no
right to expose the prosecutor to either actual or possible
injury by means of the deceit which he practised.
If there be a debt due to the defendant, and he, beini^
unable to obtain payment of the same from his debtor, obtains
goods from him by false pretences, he does not thereby commit
this offence (to), there being no real intention to defraud.
Where the defendant is charged with an isolated act of
fraud proof that he has subseqvently obtained other property
(q) R. V. Roebuck. [1856] D. & B. 24 ; 25 L. J. M. C. 101 ; 14 & 15 Vict. c. 100.
8. 9; and see R. v. Light, 84 L. J. K. B. 865; 11 Cr. App. R. 111.
(r) R. V. Roebuck, supra.
(s) R. V. Button, [1900] 2 Q. B. 597 ; 69 L. J. Q. B. 901. "
(t) 8. 40, 8ub-8. 1.
(u) R. V. NayloT, [1865] L. R. 1 C. C. R. 4; 35 L. J. M. C. 61; 13 L. T.
(N. S.) 381; 11 Jur. (N. S.) 910; 14 W. R. £8; 10 Cox, 151; R. v. Carpenter.
22 Cox. 618; 76 J. P. 158.
(w) R. V. WilUams, [1836] 7 C. & P. 354.
236 FALSE PRETENCES.
from some other person by the same pretence is not admissible
as evidence of an intent to defraud (x) ; evidence, however,
of a similar false pretence on a prior occasion is admissible (a/) ;
and the latter principle was applied where a defendant was
charged under section 13 of the Debtors Act with having
obtained credit by means of fraud, he having hired apart-
ments and obtained food without the means or intention of
paying for them, evidence of a similar obtaining shortly
before the offence charged being held to be admissible (z).
And if the charge against the defendant is that he has been
systematically committing similar frauds, as, e.g., that by
carrying on a bogus business and by pretending that his
business was a genuine one he has obtained the goods or
money mentioned in the indictment, then evidence of other
obtainings by similar false pretences even subsequent to
the particular offence charged is admissible, provided that
they are not too distant in point of time or that there
is some connection between them (a). Conversely, receipts
given to him by firms who had sold him goods and entries
in his bank pass book showing payments by him are ad-
missible to show that he was carrying on a genuine
business (6).
Winning at play or at wagering by fraud is punishable
as for obtaining money by false pretences (c).
Receiving. — As to receiving goods obtained by false
pretences, v. pp. 218 — 219.
Closely allied to the offence of false pretences is that of
inducing yersons by fraud to execute valuable securities.
(x) R. V. Holt, [1860] 30 L. J. M. C. 11.
{y) R. V. Francis, [1874] L. E. 2 C. C. E. 128; 43 L. J. M. C. 97. But not
where the obtaining has been by means of a different false pretence, as such
evidence would not be relevant to the inquiry whether he had intentionally made
the particular false pretence in question, R. v. Fisher, [^1910] 1 K. B. 149;
79 L. J. K. B. 187.
(z) R V Wyatt, [1904] 1 K. B. 188 ; 73 L. J. K. B. 15.
(a) R. V. Rhodes, [1899] 1 Q. B. 77; 68 L. J. Q. B. 83; R. v. Ollis, [1900]
2 Q. B. 758; 69 L. J. Q. B. 918; R. v. Smith, [1905] 92 L. T. 208.
(b) R. V. Sagar, 84 L. J. K. B. 303; [1914] 3 K. B. 1122.
(c) 8 & 9 Vict. c. 109, s. 17. See also R. v. O'Connor, [1881] 45 L. T.
(N. S.) 612.
FALSE PRETENCES. 237
For any person, with intent to defraud or injure another,
by any false pretence (a) to fraudulently cause or induce any
person to execute, make, accept, indorse, or destroy the whole
or any part of any valuable security; or (b) to write, impress,
or affix his name, or the name of any other person or of any
company, firm, or co-partnership, or the seal of any body
corporate, company, or society, upon any paper or parchment,
in order that the same may be afterwards made, or converted
into, or used, or dealt with as a valuable security, is a
misdemeanour, punishable as obtaining money by false
pretences (d).
It has been enacted that if a money-lender by any false
or deceptive statement or promise, or by any dishonest con-
cealment of material facts, fraudulently induces or attempts
to induce any person to borrow money or to agree to the terms
on which money is to be borrowed, he is guilty of a mis-
demeanour, and liable to imprisonment with hard labour for
two years or to a fine of £500 or both (e).
It will be observed that the words "or promise" in this
statute denote an important difference between this offence
and that of obtaining money or goods by false pretences, for,
as we have seen (/), in the latter case the false pretence,
to be criminal, must be of an existing fact and not a mere
promise to do something in the future. Now, however, if a
money-lender by a false promise induces his customer to
borrow money he will be punishable under the above section;
whereas the borrower who by a false promise induces a money-
lender to lend him money commits no legal offence, although
the fraudulent intent may be the same in each case.
FALSE PEKSONATION.
The obtaining goods, money, or other advantage by false
personation is a crime similar to false pretences. At common
law false personation is punishable as a cheat or fraud; but
{(i) 8. 32, 8ub-8. 2. (e) 63 & 64 Vict. c. 51, 8. 4.
(/) V. p. 231.
238 FALSE PRETENCES.
certain particular cases are dealt with by statute. This crime
is also closely connected with forgery; and many statutes
providing against forgery at the same time provide against
false personation.
Of seamen, soldiers, &c. — For a person, in order to receive
any pay, wages, prize money, &c., payable, or supposed to be
payable, or any effects or money in charge or supposed to
be in charge of the Admiralty, falsely and deceitfully to
personate any person entitled, or supposed to be entitled, to
receive the same, is a misdemeanour, punishable by penal
servitude to the extent of five years; or, on summary con-
viction, by imprisonment not exceeding six months [g).
To knowingly and wilfully personate or falsely assume the
name or character of, or to procure others to personate, &c.,
a soldier or other person who shall have really served, or be
supposed to have served, in His Majesty's Army or in any
other military service, or his representatives, in order to
receive his wages, prize money, &c., due or payable, or
supposed to be due or payable, for service performed, is a
felony, punishable by penal servitude to the extent of life {h).
It is no defence to such an indictment that the person was
authorised by the soldier to personate him, or that he had
bought from him the prize money to which the latter was
entitled [i).
Owners of Stock, <^c. — To falsely and deceitfully personate
(i) the owner of any share or interest in any stock, annuity,
or public fund, which is transferable at the Bank of England
or Bank of Ireland; or (ii) the owner of any share or interest
in any capital stock of any body corporate, company, or
society established by charter or Act of Parliament; or (iii)
the owner of any dividend or money payable in respect of any
such share or interest, and thereby to transfer, or endeavour
to transfer, any such share or interest, or receive, or endeavour
(g) 28 & 29 Vict. c. 124, s. 8; v. s. 9.
(ft) 2 & 3 Will. IV. c. 53, s. 49; 7 Geo. IV. c. 16, s. 38.
(i) R. V. Lake, [1869] 11 Cox, 333.
FALSE PRETENCES. 239
to receive, any money so due, as if the offender were the true
and lawful owner, is a felony, punishable by penal servitude
to the extent of life (k).
To obtain Property in general. — By the False Personation
Act, 1874, it is provided that, for any person to falsely and
deceitfully personate any person, or the heir, executor, or
administrator, wife, widow, next of kin, or relation of any
person, with intent fraudulently to obtain any land, chattel,
money, valuable security, or property, is a felony, punish-
able by penal servitude to the extent of life (Z).
Bail. — Without lawful authority or excuse (which it lies
on the accused to prove), in the name of another person to
acknowledge any recognisance or bail, or any cognovit
actionem, or judgment, or any deed or other instrument,
before any Court, Judge, or other person lawfully authorised
in that behalf, is a felony, punishable by penal servitude to
the extent of seven years (m).
As to personating voters at parliamentary and municipal
elections, v. ante, p. 73.
CHEATING.
Cheating is a comprehensive term, including in its wider
signification False Pretences, False Personation, and other
crimes which are specially provided for. A cheat at common
law is the fraudulent obtaining the property of another by
any deceitful and illegal practice or token which affects or
Tnay affect the public (n). Thus, the leading characteristic
of such a cheat is the publicity of its consequences. Therefore
a cheat or fraud effected by an unfair dealing and imposition
on an individual, in a private transaction between the parties.
(k) 24 & 25 Vict. c. 98. s. 3; v. also National Debt Act, 1870 (33 & 34 Vict,
c. 58, 8. 4); India Stock (26 & 27 Vict. c. 73), s. 14; Companies (Consolidation)
Act, 1908 (8 Edw. VII. c. (59), s. 38.
(I) 37 & 38 Vict. c. 36. 8. 1 ; v. also s. 2.
(m) 24 & 25 Vict. c. 98, s. 34.
(n) 2 East, P. C. c. 18, a. 2.
240 FALSE PRETENCES.
is not the subject of an indictment at common law (o).
Indeed, many acts which morally amount to cheating are not
punishable at all by the criminal law, the person wronged
being left to his remedy by civil action.
The chief classes of offences regarded as cheats at common
law are the following : —
Against public justice, e.g., counterfeiting a discharge
from gaol.
Against p\iblic health, e.g., selling unwholesome
provisions.
Against public economy, e.g., by using false weights
or measures (^).
But it is not an offence at common law to make short
delivery under a contract, unless false weights, measures, or
tokens are used as the general course of dealing to all or
many customers, or there is a conspiracy to cheat [q).
Apart from the common law, a number of statutes have
been passed to restrain and punish particular deceits, or
deceits in particular trades. Amongst the more general we
may notice the laws preventing cheating by : —
Counterfeit trade-marks (r),
Fraudulent conveyances {s).
The general punishment for this misdemeanour is fine or
imprisonment, or both.
(o) 2 Kuss. 1510.
(p) As to this offence, v. 52 & 53 Vict. c. 21, ss. 3, 4, and 33; also 41 & 42
Vict. c. 49, s. 26.
(g) R. V. Wheaily, 2 Burr., at 1127; Archbold, 696.
(r) V. p. 102.
(s) 13 Eliz. c. 5; 27 Eliz. c. 4.
CHAPTEE IV.
BUllGLARY, ETC.
The offence of burglary (in the strict signification of the
term) is thus defined at common law : The breaking and
entering of the dwelling or mansion-house of another in the
night-time with intent to commit a felony therein (t). The
limits of burglary proper have been extended ; and the punish-
ment of other crimes closely connected with burglary has been
also separately provided for by statute. The Larceny Act,
1916, provides that " Every person who in the night (i) breaks
and enters the dwelling-house of another with intent to
commit any felony therein; or (ii) breaks out of the dwelling-
house of another, having (a) entered the said dwelling-house
with intent to commit any felony therein; or (b) committed
any felony in the said dwelling-house, shall be guilty of
felony called burglary, and on conviction thereof liable to
penal servitude for life " (u).
Four points present themselves for consideration : the time,
place, manner, and intent.
i. Time. — Formerly great uncertainty existed as to what
constituted night- -whether it was the interval between sunset
and sunrise, whether it included twilight, &c. The matter
has been settled by statute as far as regards burglary and
other offences treated of in the Larceny Act, 1916, and the
night is deemed to commence at nine o'clock in the evening,
and to conclude at six o'clock on the following morning (w).
Both the breaking and the entering must take place at
night. If either be in the daytime, it is not burglary. But
(t) Archbold, 684. (a) s. 25.
(to) 8. 46, sub-8. 1.
C.L. 16
242
BURGLARY, ETC.
the breaking may take place on one night and the entering
on another, provided that the breaking be with intent to
enter, and the entering with intent to commit a felony (x).
ii. Place. — It must be the dwelling-house of another. To
constitute a dwelling-house for the purposes of the statute
dealing with burglary and similar offences (the Larceny Act,
1916), the house must be either the place where one is in the
habit of residing, or some building between which and the
dwelling-house there is a communication, either immediate
or by means of a covered and inclosed passage leading from
one to the other [y], the two buildings being occupied in the
same right (s). It must be the house of another; therefore
a person cannot be indicted for a burglary in his own house,
though he breaks and enters the room of his lodger and steals
his goods; but he may be convicted of the larceny (a).
The decisions as to what places satisfy the requirements of
burglary have been numerous and to some extent conflicting.
We may gather the following facts : —
The building must be of a permanent character; therefore
a tent or booth will not suffice, although the owner lodge
there. The tenement need not be a distinct building; thus
chambers in a college or inn of court will suffice provided
the occupier resides there (6).
As to the nature of the residence which is necessary. — The
temporary absence of the tenant is not material if he has an
intention of returning, though no one be in during the
interval. It will suffice if any of the family reside in the
house, even a servant (c), unless the servant is there merely
for the purpose of protecting the premises {d). It seems that
sleeping is necessary to constitute residence {e).
{x) R. V. Smith, [1820] R. & R. 417.
(j/) s. 46, sub-s. 2.
(z) R. V. Jenkins, [1813] R. & R. 224.
(o) Archbold, 634.
(b) Ihid. 635.
(c) R. v. Westwood, [1822] R. & R. 495.
(d) R. V. Flannagan, [1810] R. & R. 187.
(e) R. V. Martin, [1806] R. & R. 108.
BURGLARY, ETC. 243
In the case of hiring a part of a house, the part let off may-
be considered as the dwelling-house of the hirer if the owner
does not himself dwell in the house, or if he and the hirer
enter by different doors; that is, of course, provided that the
hirer satisfies the other requirements of residence given above.
If he does not, the place cannot be the subject of burglary
at all ; it is not the dwelling-house of the lodger or tenant,
because there is no residence; nor of the owner, because it
is severed by the letting (/). But if the owner himself, or
any of his family, live in the house, and there is only one
outward door at which they and the lodger enter, the lodger
is regarded as an inmate; and therefore the house must be
described as that of the owner {g).
At common law a church might be the subject of burglary ;
but this case is now specially provided for by statute {h).
iii. Manner. — There must be both a breaking and an
entering.
As to the hreal'ing. — It must be of part of the house;
therefore it will not suffice if only a gate admitting into the
yard is broken. But the breaking is not restricted to the
breaking of the outer wall, or doors, or windows ; if the thief
gains admission by the outer door or window being open, and
afterwards breaks or unlocks an inner door for the purpose of
plundering one of the rooms, it is burglary (i). This will
apply especially to the case of servants, lodgers, &c., who are
lawfully in the house. Breaking chests or cupboards does not
satisfy the requirements of burglary.
The breaking is either actual or constructive. Actval, when
the offender, for the purpose of getting admission for any
part of his body, or for a weapon or other instrument, in order
to effect his felonious intention breaks a hole in the wall of a
house, breaks a door or window, picks the lock of a door, or
opens it with a key or even by lifting the latch, or undoes any
other fastening to doors or windows which the owner has
(/) V. Archbold, 636, 637, and cases cited there.
ig) V. R. V. Rogers, [1772] 1 Leach, 89, 428.
(h) V. p. 247.
(t) R. V. Johnson, [1786] 2 East, P.-C. 488.
244 FDRGLARY, ETC.
provided. It is not burglary if the entry is made througli
an open window or door, or through an aperture (other than
a chimney), provided that the thief does not break any inner
door (k). Nor is raising a window which is already partly
open; but it has been decided that lifting the flap of a cellar
which was kept down by its own weight was sufficient to
constitute a burglary (/). So also to obtain admission to a
house by coming down the chimney is sufficient, for the
chimney is as much closed as the nature of things will admit ;
but getting through a hole in the roof left to admit light is
not (m).
The breaking is constrtictive, where admission is gained by
some device, there being no actual breaking. As, for example,
to knock at the door and then rush in under pretence of taking
lodgings, and fall on and rob the landlord ; or to procure a
constable to gain admittance in order to search for traitors,
and then to bind the constable and rob the house. These are
breaches sufficient to constitute burglary, for the law will not
suffer itself to be trifled with by such evasions (n). So for a
servant to conspire with a robber, and let him into the house
at night, is a burglary in both (o). If the servant, acting on
bis master's instructions, opens the door, there is no burglary,
as the door is lawfully open [p) ; but if the servant, to effect
the arrest of the prisoner, with his master's knowledge gives
a key to the prisoner, from which he makes a false key and
opens the door, this is burglary {q).
As to the entry. — The least degree of entry with any part
of the body, or with any instrument held in the hand, will
suffice; for example, stepping over the threshold, putting a
hook in at the open window in order to abstract goods, but
not if the instrument was merely used to effect the breaking.
(Ji) V. R. V. Smith, [1820] E. & E. 417; Archbold, 641; R. v. Hall, [1818]
E & E. 355; R. v. Smith, [1827] 1 Mood. 178; R. v. Robinson, [1831] 1 Mood.
327 ; R. V. Hyams, [1836] 7 C. & P. 441.
il) R. V. Russell, [1833] 1 Mood. C. C. 377.
(m) R. V. Brice, [1821] E. & E. 450.
(n) Archbold, 642.
(o) Ihid. 642.
(p) R. V. Johnson, C. & M. 218.
(q) R. V. Chandler, [1913] 1 K. B. 215; 82 L. J. K. B. 106.
BURGLARY, ETC. 245
and not as a means in itself of taking the goods, as, e.g., a
crowbar (r). If larceny is proved but not burglary the
prisoner may be convicted, as the case may be, of simple
larceny, or larceny in a dwelling-house {s).
When the breaking with intent to commit a felony is
proved, but there is no proof of entry, the jury may convict
the prisoner of an attempt to commit burglary {t).
iv. The intent. — To constitute a burglary, there must be an
intent to commit some felony (not necessarily a larceny) in
the dwelling-house. This intent must be either proved from
evidence of the actual commission of the felony, or implied
from some overt act if the felony is not actually carried out.
For it is none the less burglary because the felony which
is intended is not perpetrated. The nature of the intended
felony must be alleged in the indictment [u).
Burglary is a felony, punishable by penal servitude to the
extent of life.
Certain other crimes connected with the subject of burglary
remain to be considered : —
Being found by night (i) armed with any dangerous or
offensive weapon or instrument, with intent to break or enter
into any building and to commit a felony therein; an intent
either to break or to enter will suffice, and the offence is not
confined to dicelling-hoviaea. Proof must be given of an intent
to break into or enter a particular building ; proof of a general
intent will not suffice (w).
ii. In possession, without lawful excuse, the proof whereof
lies on the accused, of any housebreaking impleTnent;
iii. With the face blackened or disguised, with intent to
commit a felony;
iv. In any building, with intent to commit a felony therein ;
is a misdemeanour, punishable by penal servitude to the
(r) R. V. Hughes, [1785] 1 Leach, 406; R. v. Rust, [1828] 1 Mood. C. C. 183;
Archbold, 644.
(«) Archbold, 645.
(t) R. V. Spanner, [1872] 12 Cox, 155.
(u) Archbold, 644.
iw) R. V. Jarrold, [1863] L. & C. 301 ; 32 L. J. M. C. 258.
246 BUEGLARY, ETC.
extent of five years. If any of the above misdemeanours be
committed after a previous conviction for felony, or after a
previous conviction for such misdemeanour, the penal
servitude may be for ten years {x).
HOUSEBREAKING.
The chief distinction between this crime and burglary is,
that the former may be committed by day, the latter by
night only. There is also a difference to be noticed as to
the structure which may be the subject of the crimes.
Housebreaking extends to school-houses, shops, warehouses,
and counting-houses and other buildings as well as dwelling-
houses.
Nature of crime.
The Larceny Act, 1916, deals with two classes of offences.
A. Every person who (i) breaks and enters any dwelling-
house, or any building within the curtilage thereof and
occupied therewith, or any school-house, shop, warehouse,
counting-house, office, store, garage, pavilion, factory, or any
building belonging to His Majesty, or to any Government
department, or to any municipal or other public authority,
and commits any felony therein; or (ii) breaks out of the
same, having committed any felony therein, shall be guilty
of felony and liable to penal servitude for fourteen years (y).
B. Every person who with intent to commit any felony
therein (i) enters any dwelling-house in the night, (ii) breaks
and enters any dwelling-house, place of Divine worship, or
any building within the curtilage of any schoolhouse, shop
(&c., as above) shall be guilty of felony and liable to penal
servitude for seven years (z).
(x) s. 28.
iy) s. 26. If proof of breaking or entering fails the prisoner may be convicted
of simple larceny, Archbold, 657.
(2) s. 27 .
BURGLARY, ETC.
247
Sacrilege.
Breaking and entering any place of Divine worship, and
committing a felony therein, or, if already therein, com-
mitting a felony and breaking out, is a felony, punishable by
penal servitude to the extent of life (a).
Larceny in a dwelling-house.
This crime differs from housebreaking inasmuch as there
need not be any breaking, nor any entry with a view to
the commission of the larceny. As in burglary, the building
must be proved to be a dwelling-house, or some building
occupied therewith or communicating in the manner before
described (6).
Stealing in such dwelling-house any chattel, money, or
valuable security to the value in the whole of £5 or more,
is a felony, punishable by penal servitude to the extent of
fourteen years. And although the value does not amount
to £5, the punishment is the same if the thief by any
menace or threat puts any one in the dwelling-house in bodily
fear (c).
The goods must be under the protection of the house, and
not in the personal care of the owner. Thus to steal a sum
of money from a person's pocket while he is in the house is
not within the statute unless, indeed, the clothes containing
such pocket had been put off, in which case they would be
under the protection of the house {d). It was decided in the
same case that it is a question for the Judge and not for the
jury whether the goods are under the protection of the house
or in the personal care of the owner. The fact that the
larceny was committed in the thief's own house does not take
the case out of the statute (e).
(a) s. 24.
(6) V. p. 242.
(c) B. 13.
(d) R. V. Thomas, Car. Sup. 295.
(e) R. V. Bowden, [1843] 1 C- & K.
147.
CHAPTER V.
FORGERY.
Forgery at common law was a jnisdemeanour , and was said
to be the false or fraudulent making (or alteration) of an
instrument or writing (or part thereof) to the prejudice of
another man's right, or, in other words, with a design or
intent to defraud (/). By various statutes the forgery of
certain specified instruments, including indeed nearly all
instruments which are usually forged, has been declared to
be felony and made punishable by penal servitude. But as
regards documents not so specified the forgery of such
documents still remains a misdemeanour at common law, and
is declared by the Forgery Act, 1913 (3 & 4 Geo. V, c. 27,
s. 4), to be punishable by imprisonment with hard labour for
two years. Examples of such common law forgeries are :
Forging a testimonial to character in order to obtain an
appointment {g), a pass on a railway (h), a certificate of a
clergyman's ordination [i).
The statute law making the forgery of certain documents
felony has recently been to a large extent consolidated by
the Forgery Act, 1913 [Tc). This statute defines forgery as
being, for the purposes of the Act, the making of a false
(/) Archbold, 793; R. v. Riley, [1896] 1 Q. B. 309, 312; 65 L. J. M. C. 74.
(g) jR. V. Sharman, [1854] Dears. C. C. 285; 23 L. J. M. C. 51. Forging a
servant's character and giving a false character are also punishable under 32
Geo. III. c. 56, upon summary conviction, by a fine of £20 (see R. v. Costello,
[1910] 1 K. B. 28; 79 L. J. K..B. 90); as to forged statements as to character
and certificates of discharge by soldiers and sailors, see 6 Edw. VII. c. 5.
(h) R. V. Boult, [1848] 2 C. & K. 604.
(t) R. V. Etheridge, [1901] 19 Cox, C. C. 676, 678.
(fc) 3 & 4 Geo. V. c. 27. This Act came into force on 1st January, 1914.
FOKGEKY. 249
document (l) in order that it may be used as genuine, and
in the ease of the seals and dies mentioned in the Act the
counterfeiting of such a seal or die, and forgery with intent
to defraud or deceive, as the case may be, is made punishable
as provided by the Act (w).
A document is declared to be false within the meaning of
the Act if the whole or any material part of it purports to be
made by or on behalf of a person who did not make it or
authorise its making; or if, though the document is made or
authorised by that person, the time or place of making, if
material, is falsely stated in it. So also the document is false
if any material alteration has by any means been made in it,
or if it purports wholly or partially to be made by or on
behalf of a fictitious or deceased person, or if, though made
in the name of the existing person, it is made by him or with
his authority with the intention that it should pass as having
been made by some other person, real or fictitious (n).
It is immaterial, for the purposes of the Forgery Act, 1913,
in what language the document is made, or in what place
within or without the King's dominions it is expressed to
take effect; and forgery of the document may be complete
even if the document when forged is incomplete or does not
purport to be such a document as would be binding or
sufficient in law (o).
An alteration, whether by addition, erasure, or otherwise,
must, to amount to forgery, be of a material part of the
(0 There is no definition of " document "given by the Act, but it is probably
synonymous with " instrument," the word used in 24 & 25 Vict. c. 98, s. 38,
now repealed, and with the word " writing "; see the judgments in R. v. Riley,
supra, followed in R. v. Cade, 83 L. J. K. B. 796; [1914] 2 K. B. 209. At
common law the forgery must be of a writing ; so where the defendant had put
upon a picture the name of an artist by whom it had not been painted it was
held that he was not guilty of forging the artist's name (R. v. Closs, [1868]
Dears. &, B. 460; 27 L. J. M. C. 54), though he might have been convicted of a
common law cheat if he had placed the false name on the picture in the course
of his trade and had obtained money for so doing (ibid. v. p. 239 of this work).
Such an offence is also now punishable summarily by fine under 25 & 26 Vict,
c. 68, ss. 7, 8, and the defendant may also be ordered to make compensation to
the person aggrieved.
(m) 3 & 4 Geo. V. c. 27, s. 1, sub-s. 1.
(n) Ibid, sub-s. 2.
(o) Ibid, sub-s. 3.
250 roRGEiiY.
document, but it is expressly declared by the Forgery Act,
1913, that the crossing of a cheque, draft, postal order, or
other document, the crossing of which is authorised or
recognised by law, is a material part of such document (p).
The test of whether an alteration or addition to a document
is material is whether it gives to the document a different
meaning or effect (q).
From the lists of documents given below it will be seen
that to constitute forgery under the Forgery Act, 1913, in
some cases an intention to defraud is necessary, whereas in
other cases it is sufficient that there should be an intention
to either defraud or to deceive. Speaking generally, it is in
the case of public documents purporting to be of an official
nature that an intention to deceive is sufficient to constitute
forgery, whereas as regards documents of a private nature,
such as wills, deeds, bills of exchange, powers of
attorney, &c., it will be necessary to show that the intention
^f the accused was to defraud. That there is a material
distinction between the two intentions or states of mind will
be seen by the following extract from a judgment of
Buckley, J. : " To deceive is, I apprehend, to induce a man
to believe that a thing is true which is false, and which the
person practising the deceit knows or believes to be false.
To defraud is to deprive by deceit : it is by deceit to induce
a man to act to his injury. More tersely it may be put, that
to deceive is by falsehood to induce a state of mind; to
defraud is by deceit to induce a course of action " (r).
It is not necessary to allege in the indictment or to prove
at the trial an intent to defraud or to deceive any particular
person; it is sufficient to prove that the accused did the act
alleged with intent to defraud or to deceive, as the case may
be (s) — that is, a general intent as it is called. Nor need
it be shown that any one was actually defrauded or deceived,
. («) 3 & 4 Geo. V. c. 27, s. 1, sub-s. 3.
{q) R. V. Griffiths, [1858] Dears. & B. 548.
(r) London and Globe Finance Corporation, Lim., In re, [1903] 1 Ch. 728,
732; 72 L. J. Ch. 368.
(s) 3 & 4 Geo. V. c. 27, s. 17, sub-s. 2.
FOKGERT. 251
nor even that any person would be in a situation to be de-
frauded or deceived by the forgery (t). If the accused has
fabricated and uttered a false document, intending that it
should pass as a genuine one, the fact that he intended to
repay the money obtained by that means, or that he used the
document to support a legal or bona-fide claim, will not be
sufficient to negative the intention to defraud (w). And if it
is proved that the accused has forged a document such as a
bill of exchange, and uttered it as genuine, the jury are
bound to infer that he did so with an intent to defraud (w).
The following is an abstract statement of the documents
specified in the Forgery Act, 1913, the forging of all of
which is felony, the punishment being fixed according to the
nature of the document.
Forging of the following documents, if committed with
intent to defraud, is punishable with penal servitude for
life (^): —
A will, codicil, or other testamentary document, either of
a dead or a living person, or probate or letters of adminis-
tration.
A deed or bond, or assignment thereof, or any attestation
thereof.
A banknote (y) or any indorsement or assignment thereof.
Forgery of the following if committed with intent to
defraud is punishable by penal servitude for fourteen
years (z).
A valuable security (a), or any assignment thereof or
indorsement thereon, or an acceptance of a bill of exchange.
it) R. V. Nash, [1852] 2 Den. C. C. 493; 21 L. J. M. C. 147.
(u) R. V. Hill, [1838] 8 C. & P. 274; R. v. Wilson, [1847] 1 Den. C. C. 284;
R. V. Parker, [1910] 74 J. P. 208.
(w) R. V. Hill, supra; R. v. Cooke, [1838] 8 C. & P. 582, 586.
(x) 3 & 4 Geo. V. c. 27, s. 2, snb-s. 1.
(y) For definition of a "banknote," see s. 18, sab-s. 1.
(z) Ibid. a. 2, sub-s. 2.
(a) By s. 18, sub-s. 1, " valuable security " in this Act includes any writing
evidencing the title of any person to any share or interest in the public funds,
either English or foreign, or in any stock, fund, or debt of any company within
or without the King's Dominions, or to any deposit at a bank, and also any scrip,
debenture, bill, note, warrant, or other security for the payment of money, or
any accoant,ible receipt, or discharge or any receipt evidencing the payment of
252 fORGERY.
A document of title to lands or to goods (6), or an assign-
men thereof or indorsement thereon.
A power of attorney to transfer stock or to receive dividends.
An entry in a share register,
A policy of insurance, or assignment thereof or indorse-
meat thereon.
A charterparty or assignment thereof.
Certain declarations, certificates, &c., made under the
Government Annuities Acts, 1829 and 1832, or by the
Commissioners of Inland Revenue, or Income Tax Com-
missioners, or under the Slave Trade Acts.
Forgery of the following documents if committed with
intent to defraud or deceive is punishable with penal servitude
for life (c) :
Any document having the stamp or impression of the
Great Seal, the King's Privy Seal, or his Privy Signet or
Royal Sign Manual, the Great Seal or Privy Seal of Ireland.
Forgery of the following if committed with intent to
defraud or deceive is punishable by penal servitude for
fourteen years id) :
Any register or record of births, baptisms, deaths, burials,
cremations, or marriages authorised by law to be kept in the
United Kingdom, or any certified copy or any part thereof.
A certified copy of a record purporting to be signed by an
Assistant Keeper of the Public Records in England.
A wrapper or label provided or authorised by the Com-
missioners of Inland Revenue, Customs, or Excise.
Forgery of the following if committed with intent to
defraud or deceive is punishable by penal servitude for
seven years (e) :
money or delivery of a chattel. It will be seen that this is a somewhat different
definition of a " valuable security " to that given in the Larceny Act, 1916, for
the purposes of that Act, the terms of which are stated on p. 196. A Post Ofi&ce
money order is a " valuable security " within the meaning of the Forgery Act,
1913, V. 8 Edw. VII. c. 48, s. 59.
(b) See the definitions in s. 18, sub-s. 1, of such documents of title. A docu-
ment of title to goods includes inter alia dock warrants and delivery orders. As
to the forgery of certificates or documents of title under the Declaration of Title
Act, 1862, see 25 & 26 Vict. c. 67, s. 45.
(c) 3 & 4 Geo. V. c. 27, s. 3, sub-s. 1.
(d) Ibid. s. 3, sub-s. 2.
(e) Ibid. s. 3, sub-s. 3.
FORGERY.
263
Any official document of a Court of Justice or issued by
the Judge or any officer of such a Court (/).
A register or book kept under the provisions of any law
in or by the authority of any Court of Justice, and any
certificate, official or certified copy thereof or of any part
thereof.
A document which a magistrate or a Master or Registrar
in Lunacy is authorised by law to make or issue.
A document which any person authorised to administer
an oath under the Commissioners of Oaths Act, 1889, is
authorised to make or issue.
A document made by a law officer or officer of State upon
which any Court of Justice or any officer might act.
A document or copy intended to be used in evidence in
any Court of Record, or any document made evidence by law.
A certificate required by any Act for the celebration of
marriage.
A marriage licence.
Any certificate, declaration, or order under any Act relating
to the registration of births or deaths.
Certain certificates, declarations, bills of sale, &c., under
the Merchant Shipping Act, 1894.
A permit, certificate, or similar document granted by the
Commissioners of Customs and Excise.
There are certain other statutory provisions still remaining
unaltered by the Forgery Act, 1913, which should be noticed.
They are as follows :
Wilfully and fraudulently making a false entry or altera-
tion in books of the Bank of England or Bank of Ireland in
which the accounts of the public funds are kept, or making
a transfer of any such funds in the name of a person not
the true owner. Felony, penal servitude for life (24 & 25
Vict. c. 98, s. 5).
For a clerk of such bank to make a false dividend warrant.
Felony, penal servitude for seven years (ibid. s. 6).
Printing Acts, proclamations, &c., falsely purporting to
(/) As to clerks or oflScers of a Court who issue false copies or certificates, see
24 & 26 Vict. c. 98, s. 28, repealed in part by 8 4 4 Geo. V. c. 27.
254 FOUGERY.
have been printed by tlie Government printer or His Majesty's
Stationery Office. Felony, penal servitude for seven years
(31 & 32 Vict. c. 37, s. 4 (1); 45 & 46 Yict. c. 9, s. 3).
To deliver to any person a paper falsely purporting to be
the process of any Court, or a copy, or knowingly acting or
professing to act under such false process. Felony, penal
servitude for seven years (24 & 25 Vict. c. 98, s. 28) (17).
Forging or defacing a ballot-paper at an election. Mis-
demeanour, V. p. 73.
To make, utter, deal in, or sell a fictitious postage stamp,
whether English or foreign, or to have such a stamp in
possession without lawful excuse, or to make or have a
die, &c., for making such a stamp is punishable on summary
conviction by a fine of £20 (h).
Fraudulently counterfeiting trade-marks and trade-mark
registers (50 & 51 Yict. c. 28; 7 Edw. YII, c. 29, s. 89) (i).
Forging or wilfully altering a telegram, whether there be
an intention to defraud or not, is punishable on conviction
summarily by a fine of £10, and on indictment by imprison-
ment for twelve months (Jc).
Falsification of accounts by clerks, officers, servants, and
other employees (38 & 39 Yict. c. 24) (/).
The punishment of common law forgeries is provided for
as follows : The forgery of any document which is not made
felony by the Forgery Act, 1913, or any other statute, if
committed with intent to defraud is declared to be a mis-
demeanour and punishable by imprisonment with hard labour
for two years and a fine; and the forgery of pvbJic documents
not so made felony, if committed with intent to defraud or
deceive, is punishable in the same way (w).
The Forgery Act, 1913, contains also (n) provisions with
regard to the forgery of official seals and dies :
(g) This section has been in part repealed by the Forgery Act, 1913.
(h) 8 Edw. VII. c. 48, s. 65.
(i) 47 & 48 Vict. c. 76, s. 11.
(fe) 3 & 4 Geo. V. c. 27, ss. 4, 12, sub-s. 2 (a).
(I) V. p. 235.
(m) 3 & 4 Geo. V. c. 27, s. 4.
(n) 3 & 4 Geo. V. c. 27, s 5.
FORGEKY. 255
To forge with intent to defraud or deceive the Great or
Privy Seals of the United Kingdom or Ireland, the Royal
Sign Manual, or the Seal of any Public Record Office in
England or of any Court of Record or of the Registrar-
General of Births, Deaths, and Marriages is punishable by
j)enal servitude for life ; and to forge the seals of any register,
office of births, &c,, or of a burial board, or of the registry
of deeds or titles to land, by penal servitude for fourteen
years. The forgery of the seal of a Court of Justice other
than of a Court of Record or of a Master or Registrar in
Lunacy is punishable by penal servitude for seven years.
Forgery of dies, provided or used by the Commissioners of
Inland Revenue, or of Customs and Excise, or of any die
required or authorised by law to be used for the marking or
stamping of gold or silver plate or wares, is punishable by
fourteen years' penal servitude, and of a stamp or die made
or used under the Local Stamp Act, 1869, by seven years'
penal servitude (o).
For the purpose of proving that the alleged forgery was
not written by the person in whose handwriting it purports
to be, the best evidence is the denial of such person on his
being produced as a witness. Whether, however, he be or
be not called as a witness, the handwriting may be proved
not to be his by any person acquainted with his handwriting
or by comparison with writing proved to be genuine (p).
An expert will probably be allowed to give evidence as to
whether the writing is in his opinion in a feigned hand
merely from its appearance, but there are some decisions to
the contrary {q). It is sufficient to disprove the handwriting
of the person whose signature has been copied, and he need
not necessarily be called to disprove any authority to others
to use his name (r), unless there should be some evidence of
such authority which it is necessary to contradict.
In an indictment for an offence against the Forgery Act,
1913, it is not necessary to set out any copy or facsimile of
• (o) 3 & 4 Geo. V. c. 27, s. 6.
(p) V. p. 405.
(q) See Archbold, 433.
(r) R. V. Hurley, [1843] 2 M. & Rob. 473.
256 FORGERY.
the whole or any part of the document; it is sufficient to
describe it by any name by which it is usually known, or by
its purport (s) ; nor need the indictment allege an intent to
defraud or deceive any particular person (t). A second
count may be added to the indictment charging the prisoner
with uttering the same document.
A person titters a forged document, seal, or die who,
knowing it to be forged and with either of the intents
necessary to constitute the offence of forging it (i.e., with
intent to defraud or to deceive as the case may be (u) ), uses,
offers, publishes, delivers, disposes of, tenders in paj^ment or
exchange, exposes for sale or exchange, tenders in evidence
or puts off the forged document, seal, or die. It is immaterial
where it was forged (w). A person who so utters a forged
document, seal, or die is guilty of an offence of the like
degree (whether felony or misdemeanour) and is subject to
the same punishment as if he himself had committed the
forgery (s) ; that is to say, if the forgery is a felony so is the
uttering, if the forgery is a misdemeanour the uttering will
only amount to a misdemeanour. The guilty knowledge of
the accused may be shown by evidence that he has uttered
other similar forged documents (y).
There are certain forged documents and implements of
forgery, the bare possession of which without lawful authority
or excuse is criminal. And a man is deemed to be in posses-
sion not only when he has the documents, &c,, in his personal
custody or possession, but also if he knowingly and wilfully
has it in the custody of any other person or in any building,
lodging, field, or other place, whether occupied by himself
or not, it being immaterial whether the document, &c., is in
such custody, possession, or place for the use of the accused
or for the use or benefit of another person (z). The offence
(s) 3 & 4 Geo. V. c. 27, s. 17, sub-s. 1.
it) Ibid, sub-8. 2.
(m) As to which, v. p. 250, ante,
(w) 3 & 4 Geo'. V. c. 27, s. 6.
(x) Ibid.
iy) R. V. Aston, [1838] 2 Euss. 732; R. v. Colclough. [1882] 10 L. E. Ir. 241;
15 Cox, C. C. 92. As to evidence of this class, v. p. 390.
(z) 3 & 4 Geo. V. c. 27, s. 15.
FORGERY. 257
consists in the mere having it in possession without authority
or excuse.
Thus a person is guilty of felony and liable to penal
servitude for fourteen years, who without lawful authority
or excuse, the proof whereof lies on the accused, has in his
custody or possession (or in the case of a banknote, purchases
or receives) any forged banknote (a), or any die authorised
by law to be used for marking gold or silver articles, or any
wares whether of gold, silver, or base metal bearing the
impression of such forged die, or any forged stamp or die
as defined by the Stamp Duties Act, 1891, or any forged
wrapper or label provided by the Commissioners of Inland
Revenue, or of Customs and Excise (6). The possession of a
forged stamp or die resembling the stamps or dies used under
the Local Stamp Act, 1869, is felony punishable by penal
servitude for seven years (c).
With regard to the implements of forgery, it is provided
that a person is guilty of felony and liable to penal servitude
for seven years who without lawful authority or excuse, which
it is for him to prove, makes, uses, or knowingly has in
possession any paper intended to resemble the special paper
used for making banknotes. Treasury bills, or revenue paper,
or an instrument for making the same, or who engraves or
otherwise makes upon any plate, stone, &o., any words, &c.,
resembling a banknote or stock, share, or debenture
certificate, or any paper so printed (d). And even the
possession without lawful authority of genuine special paper
used for making Treasury bills or any revenue paper before
it has been duly stamped and issued for public use is a
misdemeanour punishable by imprisonment for two years or
a fine (c).
Power is given to any justice of the peace, upon reasonable
cause being shown on oath, to issue a search warrant
(a) For a definition of " banknote," see s. 18. It includes foreign as well as
.English banknotes, bank post bills, &c.
(b) 3 & 4 Geo. V. c. 27, s. 8.
(c) Ibid.
(d) Ibid. s. 9.
(e) Ibid. 8s. 10 and 12, sub-s. 2.
C.L. J 17
258 FORGERY.
authorising the search for and seizure of implements or
material intended to be used for the forgery of any
document (/).
A person is guilty of felony and liable to penal servitude
for fourteen years who, with intent to defraud, demands or
obtains or causes to be paid or delivered to any person, or
endeavours to do so, any money or other property, whether
real or personal, under any forged instrument knowing it
to be forged, or under any probate or letters of administration
knowing that the will on which the probate or letters of
administration were granted was forged or that the probate
or letters of administration were obtained by any false oath
or affidavit [g).
(/) Ihid. s. IG. , {(j\ liul. s. 7.
CHAPTKJl Vr.
INJURIES TO PROPERTY.
One of the Criminal Consolidation Acts, 1861 (h), deals with
arson and malicious injuries to property. Of these offences
the present chapter will treat.
ARSON.
Arson at common law was the malicious setting fire to the
dwelling-house of another person, or to an outhouse forming
part of the same premises as the dwelling-house.
But the offence has been much extended by the above
statute, which in different sections deals with setting fire
unlawfully and maliciously to : —
Churches, chapels, and other places of Divine worship
(section 1).
Dwelling-house, any person being therein (section 2) (i).
House, stable, coach-house, out-house, warehouse, office,
shop, mill, malt-house, hop-oast, barn, storehouse, granary,
hovel, shed, or farm, or any farm building, or any building
or erection used in farming land, or in carrying on any
trade or manufacture, with intent thereby to injure or
defraud any person (section 3).
Station, warehouse, or other building belonging to any
railway, port, dock, or harbour, or any canal or other
navigation (section 4).
(h) 24 & 25 Vict. c. 97. When merely a section is quoted in this chapter it
must be understood to refer to that statute.
(t) This section has been held to apply although the only person in the house
was the prisoner himself. R. v. Pardoe, [1894] 17 Cox, 715.
260 INJURIES TO PROPERTY.
Public building, as described in tbe Act (section 5).
All these cases of arson are felonies, punishable by penal
servitude to the extent of life. In the case of any other
building the maximum penal servitude is fourteen years (k).
Besides the above enactments with regard to setting fire to
buildings, there are others dealing with the burning of other
kinds of property.
Unlawfully and maliciously setting fire to any matter or
thing, being in, against, or under any building, under such
* circumstances that if the building were thereby set fire to,
the offence would amount to felony, is a felony, punishable
by penal servitude to the extent of fourteen years (Z). But,
for a conviction under this section, it is not enough to show
that the firing of goods in a building is malicious; it must
be shown that, if the house had been set fire to, the firing
of the house would have been wilful and malicious; if, there-
fore, a person maliciously, with intent to injure another by
burning his goods, set fire to such goods in his house, that
does not amount to a felony under the Act, even though the
house catches fire, unless the circumstances are such as to
show that the person setting fire to the goods knew that by so
doing he would probably cause the house also to take fire, and
was reckless whether it did so or not (m). Attempting to set
fire to a building or to any matter or thing mentioned above
under such circumstances that if the same were set fire to
the offender would be guilty of felony is punishable in the
same way (n).
Corn, Sfc. — Setting fire to any crof of hay, grass, corn,
grain, or pulse, or of any cultivated vegetable produce,
whether standing or cut down, or to any part of any wood,
coppice, or plantation of trees, or to any heath, gorse, furze,
or fern, wheresoever the same may be growing, is a felony,
(fe) s. 6. In case of a male under 16 whipping may also be awarded under
es. 1—8, 16—18, 26 and 27, and 42—44.
(I) s. 7.
(m) R. V. Child, [1871] L. R. 1 C. C. R. 307; 40 L. J. M. C. 127; see also
R. V. Nattrass, [1882] 15 Cox, 73.
(n) 8. 8.
INJURIES TO PKOPERTY, 261
punishable by penal servitude to the extent of fourteen
years (o).
Setting fire to any stack of corn, grain, pulse, tares, hay,
straw, haulm, stubble, or of any cultivated vegetable produce,
or of furze, gorse, heath, fern, turf, peat, coals, charcoal,
wood, or bark, or to any steer of wood or bark, is a felony,
punishable by penal servitude to the extent of life (p).
Attempting to set fire to anything mentioned in the last
two sections under such circumstances that, if the same were
set fire to, the offender would be guilty of felony under either
of those sections, is a felony punishable by penal servitude
to the extent of seven years (q).
Mines. — Setting fire to any mine of cannel coal, anthracite,
or other mineral fuel, is a felony, punishable by penal
servitude to the extent of life (r). Attempting to do the
same under such circumstances, &c. (v. above), is a felony,
punishable by penal servitude to the extent of fourteen
years (s).
We may notice here certain provisions as to destroying
ships : — •
Setting fire to, casting away, or in anywise destroying any
ship or vessel, whether the same be complete or in an un-
finished state, is a felony, punishable by penal servitude to
the extent of life (t).
An attempt by any overt act to commit any such deed
under such circumstances that it would be felony if actually
committed is a felony, punishable by penal servitude to the
extent of fourteen years (u).
It appears still to remain a felony, punishable with death,
to set fire to any of His Majesty's ships of war, military
(O) 8. 16. (p) 8. 17.
(q) 8. 18. (r) 8. 26.
(») 8. 27. (t) 88. 42, 43.
(u) 8. 44.
2ii2 INJURIES TO PROPERTY.
or naval stores (iv) ; or works, or vessels in tlie docks of the
Port of London (a;).
In viewing the crime of arson and malicious injuries to
property under this Act we may notice : —
i. The act must be done unlawfully and maliciously. —
Therefore no mere negligence or mischance will amount
thereto. But it is not necessary that the offence should be
committed from malice conceived against the owner of the
property (y). For example, if the accused, intending to set
fire to his own house or to the house of A., accidentally sets
fire to the house of B., it is equally arson (z). Nor is it
necessary that he should have had any intention of setting fire
to any one's house; he would be guilty of arson if, intending
to commit some felony of a different nature, he accidentally
set fire to another's house, provided he acted recMesdy and
the act he was committing was one which might probably
cause a fire {a). As in the cases of " malicious " wrongs, if
the act is proved to have been done wilfully, it will be
inferred to have been done maliciously unless the contrary
be proved. And though mere negligence is not malice, yet
there jnay be such recklessness that a person may be presumed
to have intended harm and so to have acted maliciously {h).
As to the " setting fire," from a physical point of view
there must be an actual burning of some part, however
trifling, of the house, &c. To support an indictment for
setting fire to a house, it will not suffice merely to prove
that something in the house was burnt (c).
iw) 12 Geo. III. c. 24, s. 1.
ix) 39 Geo. in., c. 69, s. 104 (local Act). See also Naval Discipline Act, 29 &
30 Vict. c. 109, 8. 34.
{y) s. 58. This section applies to all offences coming within the Malicious
Injuries Act, 1861.
(z) Archbold, 715.
(a) R. V. Faulkner, [1877] 11 Ir. E. C. L. 8; 13 Cox, 550; R. v. Harris,
[1882] 15 Cox, 75.
(b) See cases cited in note (m), p. 260.
(c) But in such a case the circumstances may be such as to fall under s. 7, as
if the prisoner intended that the house should also catch fire or was reckless
•whether it did so or not ; v. p. 260.
INJUniES TO PROPERTY. 263
ii. The intent to injure or defraud. — When it is necessary
to allege this, there is no need to allege an intent to injure
or defraud any particular person (d).
When a person wilfully sets fire to the house of another,
the intent to injure that person is inferred from the act.
But if the setting fire is the result of accident, though the
accused be engaged in the commission of some other felony
not likely in itself to cause a fire, there can be no intent to
defraud. Where the prisoner sets fire to his own house the
intent to defraud cannot be inferred from the act but must
be proved by other evidence (e). It will be remembered that
an intent to injure or defraud is a necessary ingredient of ans
offence against section 3 of the Act.
It is specially declared in the Act that its provisions apply^
to every person who, with intent to injure or defraud any
other person, does any of the acts made penal, although the-
offender be in possession of the property in respect of which
such act is done (/).
MALICIOUS INJURY.
Having noticed one of the most dangerous forms of
malicious injury — arson — it remains to consider others which
are dealt with in the same Act (9). It will be remembered
that here ** malicious " is to be taken in its technical significa-
tion. Of this one example will suffice. The prisoner in
striking at A. had accidentally wounded B., whom he had no
desire to injure. It was held that he could be convicted of
unlawfully and maliciously wounding, his act being unlaw-
ful and malicious, i.e., intended to do harm (h). All the acts
which we shall notice must be done maliciously and wilfully.
Houses, 8fc. — To destroy or damage a dwelling-house by
the explosion of gunpowder or other explosive substance, any
(d) 8. 60. This section also applies to the Act generally.
(e) Archbold, 718.
(/) 8. 59. This section also applies to the Act generally.
(g) 24 & 25 Vict. c. 97.
(/i) R. V. Latimer, 17 Q. B. D. 359; 55 L. J. (M. C.) 135.
264 I^VJUKIES TO TEOPERTY.
person being therein, or in the same way to destroy or damage
any building whereby the life of some person is endangered,
is a felony, punishable by penal servitude to the extent of
life (i). To place or throw gunpowder, &e., in, into, upon,
under, against, or near any building, with intent to destroy
the same or any machinery or goods, is a felony, punishable
by penal servitude to the extent of fourteen years (^).
It is provided by another statute that any person unlawfully
and maliciously causing, by any explosive substance, any
explosion likely to endanger life or cause serious injury to
property is guilty of felony, and liable to penal servitude
for life, and this whether any injury to person or property
is actually caused or not (I). Attempting to cause any such
explosion, or making or having in one's possession any
explosive with intent to cause such an explosion, is punish-
able by twenty years' penal servitude. Making or having
explosives in one's possession under such circumstances as to
cause a reasonable suspicion that they are to be used for an
unlawful object is a felony, punishable by penal servitude
for fourteen years, unless the accused can show that his object
was a lawful one (m).
To riotously and with force demolish, or begin to demolish,
buildings, machinery, mine bridges, ways, &c., is a felony,
punishable by penal servitude to the extent of life (n). If
the offenders do not proceed farther than to injure or damage
the above, they are guilty of a misdemeanour, punishable by
penal servitude to the extent of seven years (o). If indicted
under the former section, the defendants may be found guilty
of the offence set out in the latter. If the injury done be in
the bona fide assertion of an alleged claim of right, the
offenders do not fall within this provision of the statute (p).
(i) s. 9. A male under 16 may also be sentenced to a whipping in cases within
ss. 9, 10, 14, 15, 28, 29, 45—48, 30, 31, 33, 32, 20, 21, 22 (3rd offence), 23 (2nd
offence), 19, 39, 54. These sections follow in the above order.
(k) 8. 10.
(I) 46 & 47 Vict. c. 3, s. 2.
(m) Ihid. ss. 3 and 4.
(n) 24 & 25 Vict. c. 97, s. 11.
(o) s. 12.
(p) R. V. Phillips, [1842] 2 Mood. C. C. 252; v. also p. 270, post.
INJURIES TO PROPEETr. 265
For a tenant holding a dwelling-house or other building for
any term, or at will, or after the termination of any tenancy,
to unlawfully demolish or begin to demolish the building of
which he is tenant, or to sever any fixture, is a misdemeanoui*,
punishable by fine or imprisonment, or both (q).
Manufactures and Machinery (r). — (i) To break, destroy,
or damage with intent to destroy, or render useless, certain
goods, viz., silk, woollen, linen, cotton, hair, mohair, or
alpaca, in process of manufacture, or the machinery employed
in the manufacture, or (ii) by force to enter any place in
order to commit such offence, is a felony, punishable by penal
servitude to the extent of life (5). In the case of machines
used in agricultural operations, or in the manufacture of
goods other than those mentioned above, the extent of the
penal servitude is seven years (t).
Mines (u). — To cause water to be conveyed into a mine
with intent to destroy or damage the mine or hinder the
working, or with like intent to obstruct an air-way, water-
way, shafts, &c., is a felony, punishable by penal servitude
to the extent of seven years (w).
Subject to the same punishment is the offence of destroying,
damaging with intent to destroy or obstruct, the engines,
erections, ways, ropes, &c., used in mines (x).
Regulations for the proper use of gunpowder and other
explosives, when used in coal and metalliferous mines, are
contained in the Acts 35 & 36 Yict. c. 77, and 1 & 2
Geo. v., c. 50.
Vessels (y). — To place or throw in, against, or near a ship
or vessel, any gunpowder or other explosive substance with
iq) 8. 13.
(r) See also ss. 11 and 12, which, however, only apply to damage by riotous
assemblies.
(S) 8. 14.
(t) 8. 15.
(u) See also ss. 11 and 12.
(to) B. 28.
(x) 8. 29.
(y) See also ss. 42—44, p. 261.
/
266 INJUKIES TO PEOPERTY.
intent to destroy the vessel, machinery, working tools, goods,
or chattels, although the explosion does not take place and
no injury is effected, is a felony, punishable by penal
servitude to the extent of fourteen years (z). To damage
otherwise than by fire, gunpowder, or other explosive
substance, any vessel, complete or unfinished, with intent to
destroy the same, or render it useless, is a felony, punishable
by penal servitude to the extent of seven years (a).
To mask, alter, or remove any light or signal, or to exhibit
any false sign or signal, with intent to bring a vessel into
danger, or to do anything tending to its immediate loss or
destruction, is a felony, punishable by penal servitude to the
extent of life (6). For cutting away or otherwise interfering
with any buoy, mark, &c., used or intended for the guidance
of seamen or the purpose of navigation, the extent of the
penal servitude is seven years (c).
To unlawfully and maliciously destroy any part of a vessel
in distress, wrecked, stranded or cast on shore, or any article
belonging to such ship, is a felony, punishable by penal
servitude to the extent of fourteen years (d).
Sea and River Banks, S)-c. — To break down, or otherwise
damage banks, dams, walls, &c., so that the land or buildings
are, or are in danger of being, overflowed ; or to destroy any
quay, wharf, jetty, lock, sluice, weir, towing-path, drain, or
other work belonging to any port, harbour, dock, reservoir,
navigable river, or canal, is a felony, punishable by penal
servitude to the extent of life (e). To remove, &c,, piles, &c.,
used for securing such banks, &c., or to open flood-gates or
sluices, or do any other injury to a navigable river or canal,
with intent and effect to obstruct the navigation, is a felony,
the extent of the penal servitude for which is seven years (/).
Bridges, Viaducts, and Aqueducts. — To destroy any bridge,
viaduct, or aqueduct, over or under which any highway.
(z) s. 45. (a) s. 46.
(b) s. 47. (c) B. 48.
(d) s. 49. (e) s. 30.
(/) s. 31.
INJURIES TO PROPERTY. 267
railway, or canal passes, or to do anything so as to render
either the bridge, &c., or the railway, &c,, dangerous or
impassable, is a felony, punishable by penal servitude to the
extent of life (g).
Turnpihes. — To destroy the gates, toll-bars, chains, or
houses thereof, is a misdemeanour, punishable by fine or
imprisonment, or both [h).
It may be noticed here that to destroy any fences, walls,
stiles, or gates is punishable on summary conviction by a fine
of £5 (over and above the damage done), and upon a second
offence, with imprisonment with hard labour for twelve
months (t).
Telegraphs. — To Injure anything used in or about the
telegraph, or in the working thereof, or to obstruct the
sending or delivery of any message by such telegraph, is a
misdemeanour, punishable by imprisonment not exceeding
two years. But the magistrates, instead of sending the case
for trial, may summarily dispose of it, awarding imprison-
ment not exceeding three months or fine {h). To attempt by
any overt act any of the offences included in the last sec-
tion is also visited with the same punishment on summary
conviction (Z).
To unlawfully and maliciously cut or injure any electric
line or work, with intent to cut off any supply of electricity,
is a felony punishable by penal servitude to the extent of five
years, or imprisonment with hard labour for not more than
two years (m).
Ponds and Fish. — Unlawfully and maliciously to destroy
the dam, flood-gate, or sluice of a fish-pond or private water
with intent to take or destroy, or so as to cause loss or
destruction of any of the fish ; or to put in such pond or water
lime, or other noxious material, with intent to destroy the
(g) 8. 33. (h) 8. 34.
(i) 8. 25. (k) 8. 37.
(0 8. 38. (m) 45 & 46 Vict. c. 56. s. 22.
268 INJURIES TO niOPERTY.
fish; or to destroy the dam or flood-gate of any mill-pond,
reservoir, or pool, is a misdemeanour, punishable by penal
servitude not- exceeding seven years (n).
Animals. — To kill, maim, or wound any cattle is a felony,
punishable by penal servitude not exceeding fourteen
years (o).
To kill, maim, or wound any dog, bird, or beast, or other
animal, not being cattle, but being either the subject of
larceny at common law or being ordinarily kept in a state
of confinement, or for any domestic purpose, is punishable,
on summary conviction, for the first offence, by imprisonment
not exceeding six months, or penalty not exceeding £20 above
the injury; for the second offence, imprisonment not exceed-
ing twelve months [ji). It is not, however, an offence to kill
or wound such an animal if the defendant honestly believed
at the time that what he did was necessary for the protection
of his own or his master's property [q).
To cruelly beat, ill-treat, over-drive, overload, torture,
infuriate, or terrify a domestic or captive anim,al of any kind,
or to convey or carry any such animal in such a manner as
to cause it unnecessary suffering, or to cause or assist the
fighting or baiting of any such animal or to keep premises
for that purpose, or to wilfully and without reasonable excuse
administer to it any poisonous or injurious substance or to
subject it to any operation which is performed without due
care and humanity, is punishable on summary conviction by
a fine of £25 or imprisonment with or without hard labour
for three months, or by both (r). It is not, however, for-
bidden to hunt or course a captive animal which is not
(n) 6. 32; v. 36 & 37 Vict. c. 71, s. 13, as to salmoo^ rivers. As to injuries to
railway trains dealt with by ss. 36 and 36, see ante, p. 177.
(o) s. 40.
(p) s. 41.
(q) Daniel V. Janes, [1877] 2 C. P. D. 351; Miles v. Hutchings, [1903] 2
K. B. 714; 72 L. J. K. B. 775.
(r) 1 & 2 Geo. V. c. 27, s. 1; 2 & 3 Geo. V. c. 17, s. 1. This Act contains
numerous other provisions for the prevention of cruelty to animals, and particu-
larly for the proper management of knackers' yards. As to vivisection, v. 39 &
40 Vict. c. 77.
INJURIES TO PROPEIITV. 269
liberated in an injured, mutilated, or exhausted condition (.?).
To employ a dog to draw a cart or barrow is punishable by a
fine of £2 for the first and £5 for a subsequent offence (t).
Trees, Plants, ^-c. — To destroy or damage any tree, sapling,
shrub, or underwood growing in any park, pleasure-ground,
garden, orchard, or avenue, or in any ground adjoining or
belonging to any dwelling-house, provided that the amount
of the injury done exceeds the sum of £1, or, if the tree, &c.,
is growing elsewhere, provided that the amount exceeds £5,
is a felony, punishable by penal servitude to the extent of five
years (w). If the injury amounts to the value of one shilling
at the least, wheresoever the tree, &c,, is growing, the offence
is punishable, on summary conviction, by imprisonment not
exceeding three months, or fine not exceeding £5 above the
amount of the injury; for the second offence, imprisonment
not exceeding twelve months; the third offence is a mis-
demeanour, punishable by imprisonment not exceeding two
years (w).
To destroy, or damage with intent to destroy, any plant,
root, fruit, or vegetable production growing in any garden,
orchard, nursery-ground, hot-house, green-house, or con-
servatory, is punishable, on summary conviction, by
imprisonment not exceeding six months, or penalty not
exceeding £20 above the amount of the injury; the second
offence is a felony, punishable by penal servitude to the
extent of five years (a;). If the plant, &c., was not growing
in any such place, the offence is punishable, on summary con-
viction, by imprisonment to the extent of a month, or fine of
twenty shillings; for the second offence, imprisonment not
exceeding six months (y).
To cut, or otherwise destroy, any hopbinds growing on
poles in any plantation of hops is a felony, punishable by
penal servitude to the extent of fourteen years (z).
r«) 1 & 2 Geo. V. c. 27, s. 1. ^n Ibid s. 9.
(M) 24 * 25 Vict. c. 97, ss. 20, 21. (tc) s. 22.
(«) 8. 23. (y) 8. 24.
(z) 8. 19.
270 INJURIES TO PROPERTY.
WorJcs of Art, (^-c. — To destroy or damage (a) books, works
of art, &c., in public museums, &c., or (b) pictures, statues,
or monuments belonging to places of worship or public bodies,
or in public places, is a misdemeanour, punishable by im-
prisonment not exceeding six months (a).
Such are the particular cases provided for by the statute;
but in addition to these there are the following general
provisions : —
Whosoever unlawfully and maliciously commits any damage
to any real or personal property, either of a public or private
nature, for which no punishment has been provided in the
Act, is guilty of a misdemeanour, punishable by imprison-
ment not exceeding two years. If the offence is committed
at night (i.e., between the hours of nine in the evening and
six in the morning), the offender is liable to penal servitude
to the extent of five years (6).
It is necessary to show that in doing the damage the de-
fendant acted maliciously, i.e., intentionally, or, at least,
that he acted recklessly with full knowledge that his conduct
might result in damage being done. For instance, if in the
course of a street fight the defendant threw a stone intending
to hit an opponent and the stone broke a window, he ought
not to be convicted of doing wilful damage unless the jury
are satisfied that he threw the stone recklessly, knowing that
it might break a window (c).
It is a defence to such a prosecution that the defendant
acted as he did in the exercise of a supposed right, provided
he did no more damage than he could reasonably suppose
to be necessary for the assertion or protection of that right (d).
<a) s. 39.
(b) 8. 51. But a Court of summary jurisdiction is not to commit any person
for trial for an offence under this section unless it is of opinion that the damage
exceeds £5, 4 & 5 Geo. V. c. 58, s. 14. As to summary convictions where the
damage does not exceed £20, v. p. 455.
(c) R. V. Pembliton, [1874] L. R. 2 C. C. R. 119 ; 43 L. J. M. C. 91. Compare
R. V. Latimer, p. 263.
(d) R. V. Clemens, [1898] 1 Q. B. 656; 67 L. J. Q. B. 482.
INJURIES TO PROPERTY. 271
Making or knowingly having in possession any gunpowder,
or any dangerous or noxious thing, or any instrument or
thing, with intent, by means thereof, to commit any of the
felonies mentioned in the Act, is a misdemeanour, punish-
able by imprisonment not exceeding two years (e).
(e) 8. 54.
BOOK III.
CRIMINAL PROCEDURE.
We now have to consider tlie proceedings in criminal cases.
But before entering upon the subject of Criminal Procedure
it is necessary to consider what are the Courts with criminal
jurisdiction.
C.L. 18
CHAPTER I.
COURTS OF A CRIMINAL JURISDICTION.
In this chapter we shall treat of Courts talcing cognisance
of indictable offences, reserving for a subsequent chapter the
consideration of Courts of summary jurisdiction.
THE HIGH COURT OF PARLIAMENT.
The jurisdiction of the High Court of Parliament, the
highest Court of the kingdom, is exercised by the House of
Lords in three ways : —
1. By Impeachment.
2. By Indictment.
3. On appeals from the Court of Criminal Appeal,
1. Impeachment before the Lords by the Commons. — The
Commons act as prosecutors, the allegation being that it is
the people, whom they are supposed to represent, who are
injured; the Lords form the tribunal. In place of an ordinary
bill of indictment the charge against the offender is contained
in articles of impeachment, which are prepared by a com-
mittee of the House of Commons. A peer may be impeached
for any crime; a commoner may be impeached, at any rate
for a misdemeanour, and, according to some authorities, for
any crime. No impeachment has taken place for more than
a century.
COURTS OF A CRIMINAL JURISDICTION. 275
2. Indictment before the House of Peers. — In this Court
are tried peers and peeresses against whom an indictment for
treason or felony, or for misprision of either (a), is found
during a session of Parliament. The indictment — that is, a
true bill — is found in the ordinary way by a grand jury in the
King's Bench Division, or at the assizes; the indictment being
removed to the House of Peers by writ of certiorari (b). At
the trial the pleading and punishment are the same as at trials
of any other accused person (c).
The Court is presided over by a Lord High Steward,
appointed by commission under the Great Seal. He is not
Judge, but chairman, and votes with the other peers. The
privilege of being tried by this Court, which cannot be
waived (d), depends upon nobility of blood rather than upon
the right to a seat in the House. This kind of trial may
therefore be claimed by a peer under age; by Scotch and
Irish peers, though they be not representative, except an
Irish peer who is a member of the House of Commons; by
peeresses by birth, and also those by marriage unless when
dowagers they have disparaged themselves by taking a
commoner for a second husband (e). Bishops, however, are
not tried in this Court, but in Courts which have jurisdiction
over commoners. As to the right of bishops to take part in
the trials in the House of Peers, a resolution of the House in
Danby's Case has ever since been adhered to, " that the lords
spiritual have a right to stay and sit in Court in capital
cases till the Court proceeds to the vote of guilty or not
guilty (/). They then retire voluntarily, with a protest
" saving to themselves such rights in judicature as they have
by law."
The trial by the House of Peers can only be held during
the sitting of Parliament. During a recess the Court of the
(a) Peers are tried for mindemeanours before the ordinary tribunals.
(b) V. p. 335. For a recent instance of a trial of this kind, v. R. v. Earl
Russell, [1901] A. C. 446; 70 L. J. K. B. 998.
(c) 4 & 5 Vict. c. 22; see, generally, Archbold, 165.
id) Archbold, 165.
(«) Ibid.
(/) May, Pari. Prac. 669.
276 COURTS OF A CRIMINAL JURISDICTION.
Lord High Steward takes its place for the trial of similar
offences.
Here, unlike the former tribunal, the Lord High Steward
is not merely chairman of the Court, giving his vote with
the rest. He is Judge of matters of law, as the Lords-triers
are of matters of fact. Therefore, as a Judge, he has no
right to vote. A commission under the Great Seal confers the
office of Lord High Steward for the particular occasion on
some member of the House of Lords. When the indictment
has been found, and removed by writ of certiorari, the
Steward directs a precept to the serjeant-at-arms to summon
the Lords to attend the trial. In cases of treason or mis-
prision thereof, there must be summoned all the peers who
have a right to sit and vote in Parliament [g). The decision
is by the majority, which must consist of twelve at the least.
Bishops cannot be summoned to this Court, nor have they
the right of being tried there. But they have the right to
stay and sit in such Court {h).
3. Appeals from the Court of Criminal Appeal. — By the
Criminal Appeal Act, 1907 (t), it is provided that if the
Director of Public Prosecutions or the prosecutor or de-
fendant obtains the certificate of the Attorney-General that
the decision of the Court of Criminal Appeal involves a point
of law of exceptional public importance, and that it is
desirable in the public interest that a further appeal shall
be brought, he may appeal from the decision to the House
of Lords.
In this case the constitution of the Court is governed
by the Appellate Jurisdiction Act, 1876. It is, in practice,
composed only of Lords of Appeal, of whom not less than
three must be present. It may sit during the dissolution of
Parliament {h).
(g)7 & 8 Will. III. c. 3, s. 11.
</i) V. supra.
(i) 7 Edw. VII. c. 23. s. 1, sub-s. 6.
(fc) 39 & 40 Vict. c. 49, ss. 3, 5, 9.
COUllTS OF A CRIMINAL JURISDICTION. 277
COURT OF CRIMINAL Al'I'EAL.
This Court is constituted by the Criminal Appeal Act,
1907, and consists of the Lord Chief Justice of England
and the Judges of the King's Bench Division of the High
Court. It has no original jurisdiction and can only deal
with criminal cases brought before it by way of appeal,
but over such cases it has very wide powers. In certain
cases, however, as above mentioned, an appeal lies from it
to the House of Lords.
THE HIGH COURT OF JUSTICE.
Courts forming part of the High Court of Justice which
exercise criminal jurisdiction are (1) the King's Bench
Division; (2) Courts sitting under Commissioners of Assize,
of oyer and terminer, and gaol delivery (l).
1. The King's Bench Division is the successor of the old
Court of King's Bench, which on its Crown side had juris-
diction to try all indictable offences against the law of
England, with a general superintendence over all other Courts
of criminal jurisdiction and power to remove indictments
into itself by writ of certiorari {m). The criminal juris-
diction of the King's Bench Division is not now exercised
except (n) : (i) Where the indictment is removed into it by
certiorari (o) ; (ii) Where an indictment is found in London
or Middlesex by a jury summoned specially for the purpose
by the Master of the Crown Office; (iii) In the case of
criminal informations.
A trial in the King's Bench Division may be either before
one Judge, as at assizes, or may be at bar, i.e., before two
(I) Judicature Act, 1873 (36 & 37 Vict. c. 66), a. 16.
(m) Archbold, 103. 109.
(n) The King's Bench Division has a special jurisdiction to try certain offences,
as, for example, treason committed out of the realm (R. v. Lynch, [1903] 1
K. B. 444) and crimes committed out of England by Crown ofiBcials in the
execution of their office (Archbold, 103). It is also the only Court before which
a corporation can be tried on indictment, since a corporation can plead only by
attorney, which is allowed only in the King's Bench Division (Archbold, 110;.
'o) V. p. 335, et seq.
278 COURTS OF A CRIMINAL JURISDICTION.
or more (usually three) Judges sitting m hmic (p). Trial at
bar can now, with some exceptions, be obtained only by
order of the Court, which is granted as of right to the
Attorney-General prosecuting on behalf of the Crown, but
otherwise only for exceptional reasons (q).
2. Courts of Assize, Oyer and Terminer, and Gaol Delivery.
■ — Since the Common Law Courts sat only at Westminster,
it became the practice in the thirteenth century to grant
commissions to special justices to take particular assizes or
do some other particular judicial business in the counties.
By various statutes of Edward I., Edward II., and Edward
III., this became an organised system; the whole country
was divided into groups of counties, and two Judges went
twice a year to each Circuit with a general commission to
take all assizes and deliver all gaols on the Circuit.
The arrangement of Circuits is now governed by various
Orders in Council, made under the Judicature Act, 1875
(s. 23). There are at present eight Circuits — ^(i) Northern,
(ii) North Eastern, (iii) Midland, (iv) South Eastern, (v)
Oxford, (vi) Western, (vii) North Wales, (viii) South Wales.
On all Circuits Summer and Winter Assizes are held for
both civil and criminal business; an Autumn Assize is held
for criminal business only, except in a few towns, where civil
business is directed to be taken by Order in Council or by
the Lord Chief Justice under powers given by Order in
Council (r), and an Easter Assize is held for civil and
criminal business at Leeds, Liverpool and Manchester.
At the assizes the Judges sit under the following com-
missions : —
(i) Of Assize. — This confers upon them a civil jurisdiction,
to which is incidental the jurisdiction to try cases at nisi
(p) Trial at bar was formerly a trial before all the Judges of the Court ; it now
takes place before a Divisional Court, which, as a rule, is composed of three
Judges.
{q) Archbold, 120.
(f) Order in Council of May 14, 1912. See The Annual Practice, 1918, p. 2371.
COURTS OF A CRIMINAL JURISDICTION. 279
prius. Under the Commission of Assize only such criminal
offences can be dealt with as are sent for trial at the assizes
from the King's Bench Division (5).
(ii) Of Oyer and Terminer. — Giving authority to enquire,
hear and deterinine concerning treasons, felonies and mis-
demeanours committed within the Circuit. Under this
commission the Judges can try only prisoners against whom
an indictment is found at the same assizes, for they cannot
"hear and determine" by a petty jury before they have-
enquired by a grand jury (t).
(iii) Of Gaol Delivery. — Empowering the Judges to try
any prisoner in gaol or released on bail.
The Judges of assize do not sit in virtue of their position
as Judges of the High Court of Justice, but as Commissioners
specially sent down. Accordingly, when the state of business
requires it, the Judges are often assisted by King's Counsel,
who are included in the Commission, and try some of the
prisoners. But by the Judicature Act, 1873, all Courts of
assize, oyer and terminer, and gaol delivery are branches
of the High Court, and every Commissioner, whether or
not he is a High Court Judge, has for the purposes of his
Commission all the jurisdiction of a Judge of the High
Court (w).
For London and the suburbs the place of the assizes is
taken by the Central Criminal Court, which has generally
the same criminal jurisdiction as the assizes. It was
established in 1834 for the trial of treasons, felonies, and
misdemeanours committed within the City of London and
county of Middlesex, and in certain specified parts of the
counties of Essex, Kent, and Surrey; such district for this
purpose being regarded as one county. Under the Judicature
(») V. pp. 318. 337.
it) v., however, p. 307.
(u) 36 & 37 Vict. c. 66, ss. 16, 29, 37.
280 COURTS OF A CHIMINAL JURISDICTION.
Act, 1873, it has become a branch of the High Court (w).
The Judges sit under commissions of oyer and terminer and
gaol delivery. The sessions of the Court are required to be
holden at least twelve times a year, and of tener if need be ;
the particular dates being fixed each year at a meeting of the
Judges.
The Commissioners or Judges of the Court include the Lord
Chancellor, the Judges of the High Court, the Lord Mayor,
Aldermen, Recorder, and Common Serjeant of London, and
such others as the Crown from time to time may appoint.
Usually at each session the Recorder and Common Serjeant
sit on the first two days; after which they are joined by one
or 'two of the Judges of the High Court, who try the more
serious cases.
We shall see that offences committed within jurisdiction
of the Admiralty may be tried here (a;) ; also that certain
cases may be sent by the King's Bench Division to this
Court (y). Here also by an order of that Division may be
tried persons subject to the Mutiny Acts for the murder or
manslaughter in England or Wales of any person subject to
those Acts (z).
The Central Criminal Court has also a transferred juris-
diction. Indictments found at the various Quarter Sessions
within the district of its jurisdiction may be removed to it
by certiorari (a), or transmitted to it by such Courts of
Quarter Sessions as to the Judges on Circuit (6).
The sitting of the Central Criminal Court does not inter-
fere with the sessions of the peace held within the district,
that is, the latter may be held notwithstanding that the
former tribunal is sitting (c).
(w) 36 & 37 Vict. c. 66, as. 16, 29.
(x) V. p. 326.
(y) V. p. 337.
(z) 25 & 26 Vict. c. 65. As to indictments under Corrupt Practices Act, v.
46 & 47 Vict. c. 51, s. 50.
(a) 4 & 5 Will. IV. c. 36, s. 16.
(b) Ibid. 8. 19.
(c) Ibid. 8. 21.
COURTS OF A CRIMINAL JURISDICTION. 281
QUARTER SESSIONS.
These Courts, which are held for the trial of criminals
as well as for other objects, are of two kinds : —
i. The General (Quarter) Sessions of the Peace for the
County.
ii. The Borough Sessions.
i. The General County Sessions must be held in every
county once every quarter at stated times, in which case they
are termed the " General Quarter Sessions of the Peace." And
if, on account of the amount of business, it is necessary that
Courts of this description should be held intermediately, they
are termed " General Sessions of the Peace." The authority
and jurisdiction of the Court under either title are the same,
except where the jurisdiction is given by statute expressly
to the Court of Quarter Sessions [d).
The dates fixed by statute for the holding of the county
Quarter Sessions are the first weeks after each of the follow-
ing days — March 31, June 29, October 11, December 28 (e).
But the justices may at any time either at Quarter Sessions
or at a special meeting, when it may appear desirable for
any purpose, fix or alter the date of holding the next Quarter
Sessions to some time not earlier than fourteen days before
nor later than fourteen days after the week in which they
would otherwise be held (/).
The Court is held before two or more justices of the peace.
When the number of prisoners is large, a second Court may
be formed with the same authority as the first {g). In each
Court a chairman presides, and acts in general as a Judge,
consulting the other justices present when he thinks fit.
(d) As to the extent of the local jurisdiction of the Sessions for the Adminis-
trative County of London^ v. 51 k 52 Vict. c. 41, s. 40.
(e) 11 Geo. IV. and 1 Will. IV. c. 70, s. 35, except as to the London County
Sessions, which, by virtue of 7 & 8 Vict. c. 71. and 22 & 23 Vict. c. 4, are held
twice in each month ; there are also intermediate sessions held in the County
of Middlesex.
(/) 8 Edw. VII. c. 41. s. 3.
(g) 21 & 22 Vict. c. 73, ss. 9—11.
282 COURTS OF A CRIMINAL JURISDICTION.
Formerly this Court had the power of trying any felony
or misdemeanour committed in the county, except perjury
at common law and forgery. But the justices usually
remitted the more serious felonies to the assizes; and now
the criminal jurisdiction of the sessions is expressly by
statute confined to the trial of certain minor felonies and
misdemeanours. And it is said that the justices in session
cannot try any newly created offence unless the statute which
creates it expressly gives them power (h). The chief statute
limiting their jurisdiction (i) precludes them from trying
any of the following crimes : —
Treason, murder, or any capital felony.
Any felony which, when committed by a person not
previously convicted of felony, is punishable by penal
servitude for life. Burglary is, however, an exception, as
later Acts (k) have given Quarter Sessions jurisdiction to try
this crime; but nevertheless a committing justice is to
commit the person charged to the assizes unless, owing to
the absence of any circumstances which make the case a grave
or difficult one, he thinks it expedient to commit him for
trial before a Court of Quarter .Sessions.
Misprision of treason.
Offences against the King's title, prerogative, person, or
government, or against either House of Parliament.
Blasphemy and offences against religion.
Administering and taking unlawful oaths.
Forgery [and any offence against the Forgery Act, 1913,
or punishable under that or anv other Act as forgery (3 & 4
Geo. y. c. 27, s. 13)].
Unlawfully and maliciously setting fire to crops of corn,
grain, or pulse, or to any part of a wood, coppice, or
plantation of trees, or to any heath, gorse, furze, or fern.
(h) 2 Hawk. P. C. 47 ; 4 St. Com. 302 ; R. v. James, 2 Str. 1256 ; R. v. Buggs,
[1695] , 4 Mod. 379. There is other old authority for the proposition stated in
the text, but it is believed that in practice Courts of Quarter Sessions do now
try many such cases, and the commissions under which they sit do not prohibit
them from doing so. See 1 St. Hist. Cr. Law, p. 115; 2 Oke Mag. Syn. 718;
Archbold Q. S. 271.
(i) 5 & 6 Vict. c. 38.
(fe) 59 & 60 Vict. c. 57, repealed but re-enacted by the Larceny Act, 1916,
s. 38.
COURTS OF A CRIMINAL JURISDICTION. 283
Bigamy and offences against the laws relating to marriage.
Abduction of women and girls.
Endeavouring to conceal the birth of a child.
Composing, printing, or publishing blasphemous, seditious,
or defamatory libels.
Bribery (except under the Public Bodies Corrupt Practices
Act, 1889, 52 & 53 Vict. c. 69, s. 6) [Also, by various
statutes, corrupt practices and undue influence at parlia-
mentary and municipal elections (Z)].
Unlawful combinations and conspiracies, except con-
spiracies and combinations to commit any offence which the
quarter sessions have jurisdiction to try when committed by
one person.
Stealing or fraudulently taking, or injuring, or destroying,
records or documents belonging to any Court of law or equity,
or rfelating to any proceeding therein.
Stealing or fraudulently destroying Or concealing wills
or testamentary papers, or any document or written
instrument being or containing evidence of the title to
any real estate, or any interest in lands, tenements, or
hereditaments.
By other statutes their jurisdiction does not extend to
the trial of : —
Perjury, subornation of perjury, the making of false
declarations, and other offences against the Perjury Act, 1911
(1 & 2 Geo. V. c. 6, s. 10).
The misdemeanour of three or more armed persons
pursuing game by night (9 Geo. IV. c. 69, s. 9).
Fraudulent misdemeanours by agents, trustees, bankers,
factors, &c., made punishable by the Larceny Act, 1861,
8s. 82—86, and the Larceny Act, 1916, ss. 20—22 (24 & 25
Vict. c. 96, s. 87; 6 & 7 Geo. V. c. 50, s. 38 (1) (6)).
Offences against 37 & 38 Vict. c. 36, s. 3, by personating
holders of stock.
Offences against women and young girls punishable by
the Criminal Law Amendment Act, 1885, or the Mental
Deficiency Act, 1913, s. 56.
({) Arcbbold, 106.
284 COURTS OF A CRIMINAL JURISDICTION.
Offences against the Official Secrets Act, 1911 (1 & 2 Geo.
V. c. 28, s. 4).
Incest, or attempted incest (8 Edw. VII. c. 45, s. 4).
Bribery of agents or servants under 6 Edw. YII. c. 34.
Although a Court of Quarter Sessions has no jurisdiction
to try a person accused of any of the above-mentioned
offences, the grand jury may at such a Court find a true bill
against him. In that case the indictment must be remitted
to the assizes for trial (tti).
An indictment may be preferred against a corporation at
the quarter sessions and a true bill found there, but it cannot
be tried in that Court. The prosecutor must apply to the
King's Bench Division of the High Court for a writ of
certiorari to remove the indictment into the latter Court for
trial (n).
There are also other circumstances, as will be seen later, in
which an indictment may be removed from the sessions to the
King's Bench Division by certiorari {o).
In order to prevent cases falling within the jurisdiction of
the sessions being unnecessarily sent to the assizes for trial,
it was provided by 52 & 53 Yict. c. 12, that in such cases
prisoners should not be committed to take their trial at the
assizes unless the committing justices for special reasons, or
the High Court Justice, thought fit so to direct.
To the Court of Quarter Sessions also lie appeals against
summary convictions.
In appeals and other cases where the justices in sessions
are made Judges of the fact as well as of the law, their
decision is final, and cannot be reversed by any Court with-
out their consent. But if they have a difficulty upon a
question of law, they may under a long-established practice
(m) Archbold, 107.
(n) R. V. Birmingham and Gloucester Railway Co., [1842] 9 C. & P. 469;
3 Q. B. 223. The reason is that at a Court of Quarter Sessions a defendant
must plead personally, whereas a corporation aggregate can only appear and
plead by attorney.
(o) V. p. 335.
COURTS OF A CRIMINAL JURISDICTION. 285
put the facts in the form of a special case for the opinion of
the King's Bench Division, meanwhile confirming or quash-
ing the order before them {p). Their order will then be con-
firmed or quashed by the superior Court. In ordinary criminal
cases the proceedings can be reviewed by appeal to the Court
of Criminal Appeal.
ii. Borough Quarter Sessions. — Many corporate towns or
boroughs have quarter sessions of their own. This exempts
them in almost every matter from the jurisdiction of the
County Quarter Sessions. The borough sessions have, in
general, the same jurisdiction as the county sessions (r)-,
being subject to the same limitations as to the trial of
certain offences. The Court is held at least once in every
quarter of a year at dates fixed by the recorder; or at such
other and more frequent times as the recorder may think fit,
or as the King may direct. The recorder of the borough,
who must be a barrister of at least five years' standing, is the
presiding Judge, though he may be assisted in the trial of
criminals by some other barrister; and in the case of his
absence he may appoint a deputy.
COURT OF THE CORONER.
The business of this Court is to enquire when any one dies
in prison or comes to a violent or an unnatural death, or
by a sudden death of which the cause is unknown, by what
means he came to his end (s). A coroner has jurisdiction,
and it is his duty, to hold an inquest when he has informa-
tion, which he honestly believes, that a death may be due
to some other cause than common illness; and his jurisdiction
(p) See R. V. Overseers of Walsall, [1878] 3 Q. B. D., at p. 473; 4 A. C,
at pp. 39, 40.
(r) 46 & 46 Vict. c. 50, a. 158. See also ae to certain boroughs, 51 & 52
Vict. c. 41, 8. 31, et seq.
is) 90 & 51 Vict. c. 71. 8. 3.
286 COURTS OF A CRIMINAL JURISDICTION.
is not affected by such information eventually proving to be
untrue; it is enough that he bona fide believes, and has
reasonable grounds for believing, that the information is
such as to call for an inquest {t).
The Coroner's Court also has jurisdiction to enquire as to
treasure trove, who were the finders and who is suspected of
concealing it (w).
There have been certain criminal Courts of a private or
special jurisdiction, which are restricted both in respect of
the place and of the cause. One example of this class
remains, and it is not of any great importance.
UNIVERSITY COURTS IN OXFORD AND CAMBRIDGE.
Both Universities enjoy a certain exemption from the
ordinary criminal tribunals; but at Cambridge the privilege
cannot be claimed if any person not a member of the
University is a party [w). In order to take advantage of
this immunity, the proper course is after the indictment
has been found by grand jury at the assizes or elsewhere
against a resident scholar or other privileged person for the
Vice-Chancellor to claim the cognisance of the matter, and
then it will be sent to one of the following Courts : — -
High Steward's Court. — It has jurisdiction over cases of
treason, felony, or mayhem committed by a resident
privileged person. The process at Oxford is as follows:
A special commission is issued to the High Steward and
others to try the particular case. The indictment is then
tried in the Oxford Guildhall by a jury de medietate, half
of freeholders and half of matriculated laymen. If the
accused is found guilty of a capital offence, the sheriff must
(t) Ibid.; R. v. Stephenson. [1884] 13 Q. B. D. 331; 53 L. J. M. C. 176;
52 L. T. N. S. 267; 33 W. R. 244; 15 Cox, 679. For further details as to the
proceedings upon a Coroner's Inquisition, see post, p. 318.
(u) 50 & 51 Vict. c. 71, s. 36.
iw) 19 & 20 Vict. c. 17, 8. 18.
COURTS OF A CRIMINAL JURISDICTION. 287
execute the University process, to which he is bound by an
oath (;r).
Vice-Chancellor* s Court. — This Court has authority to try
all misdemeanours committed by resident members of the
University, The Judge is the Vice-Chancellor. This ex-
ceptional jurisdiction is rarely, if ever, exercised, the Vice-
Chancellor's Court meeting for other purposes. Formerly,
however, on several occasions cases of murder and other
crimes were tried in the High Steward's Court.
Petty sessions akd summary proceedings Jjftfbre single
magistrates will be notiqerJ^pereafter.
(x) 4 Bl. 278. As to the juriBdiction of th^ Vice-Chancellor over non-members
of the University for the protection of the morals of undergraduates, v. 6
Geo. IV. c. 97 ; 67 & 58 Vict. c. 60.
CHAPTEE II.
PROCESS TO COMPEL APPEARANCE.
The first steps in criminal proceedings are those necessary
to secure the appearance of the offender. This may be
effected : —
A. By summons or arrest by warrant.
B. By arrest without warrant.
A. When a charge or complaint has been made before one
or more justices that a person has committed or is suspected
to have committed any treason, felony, or indictable mis-
demeanour, or other indictable offence, within his or their
jurisdiction; or that, having committed it elsewhere (even
within the Admiralty jurisdiction or on land beyond the
seas (a) ), he resides within the jurisdiction of the justice to
whom the application is made; then, if the accused is not
in custody, two courses are open to the justice : (i) to issue
a warrant to apprehend and bring the accused specially before
himself, or other justices of the jurisdiction; or (ii) to issue,
in the first place, a summons directed to the accused, requiring
him to appear before himself, or other justices of the juris-
diction ; and afterwards, if the summons is disobeyed by non-
appearance, to issue a warrant (6).
The issue, however, of either a warrant or a summons is
discretionary on the part of the justice, and if in the exercise
of his discretion he refuses to issue either, the High Court
will not compel him to review his decision unless his dis-
cretion was exercised on improper and extraneous grounds (c).
(o) 11 & 12 Vict. c. 42, s. 2. This statute does not affect the Metropolitan
Police or the London Police Acts.
(b) Ihid. 8. 1.
(c) R. V. Kennedy, [1902] 86 L. T. 753; 20 Cox, C. C. 230.
PROCESS TO COMPEL APPEARANCE. 289
It does not follow that in such a case the offender will go
unpunished, as it will always be open to the prosecutor to
prefer an indictment against him (d), or in a proper case (e)
to give him into custody without a warrant.
To enable a justice to issue a warrant in the first instance,
it is necessary that an information and complaint in writing
on the oath or affirmation of the informant, or of some other
witness on his behalf, should be laid before the justice. But
if a summons only is to be issued in the first instance, the
information may be by parol and without oath (/).
A warrant may also be issued by a Judge of the King's
Bench Division for the arrest of any one charged on oath of
felony (g).
A summons is directed to the accused. It states shortly
the charge, and orders him to appear before the justice
issuing it, or some other justice of the jurisdiction, at a
certain time and place. It is served by a constable on the
accused personally, or delivered to some person for him at
his last or most usual place of abode (h).
A warrant is directed to a particular constable, or to the
constables of the district where it is to be executed, or
generally to the constables of the jurisdiction of the issuing
justice. It states shortly the offence and indicates the
offender, ordering the constable to bring him before the
issuing justice, or other justices of the same jurisdiction. It
remains in force until executed, the execution being effected
(d) V. p. 330.
(e) V. pp. 294—296.
(f) 11 & 12 Vict. c. 42, 8. 8.
(g) As to other cases in which a Judge or a Court may issue a warrant, v. pp.
332 — 333. As to a coroner's warrant, v. p. 320.
(h) Ibid. s. 9. The following is an e.xainple of a summons : —
"To John Styles, of, Ac, labourer. "Whereas you have this day been
charged before the undersigned, one of His Majesty's justices of the peace in
and for the said county of * * * *, for that you on, Ac, at, &c., (the offence
stated shortly) : These are therefore to command you, in His Majesty's name,
to be and appear before me on Thursday, the 15th day of June, at eleven o'clock
in the forenoon at * * * * or before such other justice or justices of the peace
for the said county as may then be there, to answer to the said charge, and to
be further dealt with according to law. Herein fail not.
"Given under my hand and seal, this 13tb day of June, in the year of our
Lord 1904, at * * * *, in the county aforesaid.
"J. H. IL. S.i."
C.L. 19
290 PROCESS TO COMPEL APPEARANCE.
by the due apprehension of the accused (i). It may be issued
on Sunday as well as on any other day (k).
A warrant from a Judge of the King's Bench Division
extends all over the kingdom, and is tested, or dated,
England, not Oxfordshire, Berks, or other particular county.
But the warrant of a justice of the peace in one county,
as Yorkshire, must be backed, that is, signed by a justice
of the peace in another, as Middlesex, before it can be
executed in the latter (Z). A warrant issued in England may
be backed not only in another jurisdiction in England, but
also in Scotland, Ireland, or the Channel Islands, and vice
versa (m,).
When a warrant is received by the officer, he is bound
to execute it so far as the jurisdiction of the justice and
himself extends. And a warrant drawn up according to
the statutory form will (even though the magistrate who
issued it has exceeded his jurisdiction) at all events in-
demnify the officer who executes the same ministerially (n).
The officer in his own jurisdiction need not show his warrant
if he tells the substance of it. The officer may break open
doors to execute a warrant for treason or felony, or any
indictable misdemeanour, if upon demand of admittance it
cannot otherwise be obtained (o). An arrest for any indict-
{»') 11 & 12 Vict. c. 42, s. 10. An example of a warrant : —
" To the constable of * * * * and to all other peace officers in the said
county of * * * *. Whereas A. B. of * * * *, labourer, hath this day been
charged upon oath before the undersigned, one of His Majesty's justices of the
peace, in and for the said county of * * * *, for that he on * * * * at
* * * * did, &c. (stating shortly the offence) : These are therefore to command
you, in His Majesty's name, forthwith to apprehend the said A. B. and to bring
him before me, or some other of His Majesty's justices of the peace in and for
the said county, to answer unto the said charge, and to be further dealt with
a<^:ording to law. Given under my hand," &c. (as in the case of summons).
(k) 11 & 12 Vict. c. 42, s. 4.
(I) 11 & 12 Vict. c. 42, s. 11. This rule does not apply to warrants of Metro-
politan Police officers (2 & 3 Vict. c. 71, s. 17).
(m) 11 & 12 Vict. c. 42. ss. 12—15 ; 8 Edw. VII. c. 65, s. 25. See also 14 & 15
Vict. c. 55, s. 18. As to the colonies, see 44 & 45 Vict. c. 69. As to the extra-
dition of fugitive foreign criminals, see 33 & 34 Vict. c. 52; 36 & 37 Vict. c. 60;
and 58 & 59 Vict. c. 33.
(n) 24 Geo. IT. c. 44, s. 6.
(o) As to killing a constable in the execution of his duty, v. p. 147 ; as to
when he is justified in killing the accused, v. p. 139.
PROCESS TO COMPEL APPEARANCE. 291
able offence may be made on a Sunday ; and in the nigbt-time
as well as the day.
A general warrant is void, e.g., a warrant to apprehend
the authors, printers, and publishers of a libel, without
naming them (p). General warrants to take up loose, idle,
and disorderly people {q), and search warrants, are perhaps^
the only exceptions to this rule.
By section 27 of the Criminal Justice Administration Act,
1914, it has been provided that a warrant for arrest may be
issued wherever either at common law or under any statute
there is power to arrest without warrant.
Though not strictly belonging to the subject in hand,
namely, the arrest of criminals, it may be convenient here
to notice search icarrants. On the oath of a complainant
that he has probable cause to suspect that his property has
been stolen, and that it is upon certain premises named by
him, reason for his suspicion being shown, a justice may
at common law issue a warrant to search such premises, and
to seize the goods if they be found there (r). And as to
property otherwise the subject of fraudulent practices, it is
provided that if it is made to appear by information on oath
before a justice that there is reasonable cause to suspect that
any person has in his possession, or on his premises, any
property with respect to which an offence punishable under
the Larceny Act, 1916, has been committed, he may grant
a warrant to search for such property, as in the case of stolen
goods (.?). Also any constable, if authorised in writing by a
chief officer of police, may enter any premises and search
for and seize any property believed to be stolen, and any
person on whose premises such property is found may be
summoned before a Court of summary jurisdiction, which
may make such order as may be required as to the disposal of
(p) Money v. Leach, [17(551 1 W. Bl. 555.
(q) e.g., any persons found in a gaming house or disorderly house.
(r) Jones v. German, [1896] 2 Q. B. 418; 66 L. J. M. C. 212. It is not
necessary to specify the particular goods to be searched for {ibid.).
(») 6 & 7 Geo. v. c. 50, ». 42, sub-s. 1. As to searching a pawnbroker's
premises for goods entrusted to a person to be finished or washed, and which
were then unlawfully pawned, v. 35 & 36 Vict. c. 93, s. 36.
292 PROCESS TO COMPEL APPEARANCE.
the property. Such written authority may be given (i) when
the premises are or within twelve months have been occupied
by any person convicted of receiving stolen goods or harbour-
ing thieves; or (ii) when the premises are occupied by any
person who has been convicted of any offence involving
fraud or dishonesty, and punishable with penal servitude
or imprisonment. The authority need not specify any
particular property, but may be given if there is reason
to believe that the premises are being made a receptacle for
stolen goods (t).
Again, by the Criminal Law Amendment Act, 1885, a
justice of the peace may, on the oath of a parent, relative,
or guardian of any woman or girl, or other person who, in
Ihe opinion of such justice, is bona fide acting in her interest,
that there is a reasonable cause to suspect that such a
woman or girl is unlawfully detained for immoral purposes
in any place within his jurisdiction, issue a warrant to search
such place for, and when found to detain, such woman or
girl until she be brought before him, and then may order
her to be delivered up to her parents or guardians. And
he may also cause any person accused of unlawfully detain-
ing such woman or girl to be apprehended and Drought
before him. A woman or girl is deemed to be unlawfully
detained for immoral purposes if she is so detained for the
purpose of being unlawfully and carnally known by any man,
and either (1) is under the age of sixteen years; or (2) if
of or over that age, and under the age of eighteen years,
is detained against her will, or that of her father, mother,
or other person having the lawful charge of her; or (3) if
of or above the latter age, is detained against her will (u).
Search warrants may also be granted for explosive
substances suspected to be intended for felonious pur-
poses (w), forged documents and implements of forgery (.«),
(t) 6 & 7 Geo. V. c. 60. s. 42, sub-s. 2. By the Prevention of Crimes Act,
1871 (34 & 35 Vict. c. 112), ss. 10—13, penalties are imposed for harbouring
thieves, purchasing less than specified quantities of old itietal, etc.
(u) 48 & 49 Vict. c. 69, s. 10.
(w) 24 & 25 Vict. c. 100, s. 65.
(X) 3 & 4 Geo. V. c. 27, s. 16.
PnOCESS TO COMPEL APPEARANCE. 293
counterfeit coin and coinage tools {y), goods which infringe
the provisions of the Merchandise Marks Act, 1887 (z),
children believed to be ill-treated or neglected (a), obscene
books and pictures (6), sketches, plans and documents which
are evidence of an offence under the Official Secrets Act,
1911 (c), blasphemous and obscene libels [d), and many other
cases.
B. Arrests without warrant.
As to arrests by officers, they may be made by
i. Justices of the Peace, who may themselves apprehend,
or cause to be apprehended, by words only, i.e., without
warrant, any person committing a felony or breach of the
peace in their presence (e).
ii. The sheriff or coroner may apprehend any felon within
the county (/).
iii. A constable may at common law arrest, without
warrant, any one for treason, felony, or breach of the peace
committed in his view, within his jurisdiction, and carry
him before a magistrate. So, also, on ^ reasonable and
positive charge of felony, though it should afterwards appear
that no felony had been committed. And, if a felony has
been actually committed, he may arrest a man on reasonable
suspicion of his having committed it. But, as a rule, he
may not arrest without warrant for a misdemeanour, though
he may interpose to prevent a felony or a breach of the
peace, and to accomplish this object he may arrest the person
menacing, or any one who opposes him in the execution of
his duty, and detain him in custody till the chance of the
threat being executed is over (g). Also he may arrest
without warrant, and then must take before a justice of the
(y) 24 & 25 Vict. c. 99, s. 27.
(z) 50 & 51 Vict. c. 28, s. 12.
{a) 8 Edw. VII. c. 67, s. 24.
ib) 20 & 21 Vict. c. 83, s. 1.
(c) 1 & 2 Geo. V.,c. 28, s. 9.
(d) 60 Geo. III. and 1 Geo. IV. c. 8, a. 1.
(e) Archbold, 961.
(/) Ibid.
{g) V. Archbold, 961, 962.
294 PROCESS TO COMPEL APPEARANCE.
peace as soon as reasonably may be, any person whom lie
finds lying or loitering in any highway, yard, or other place,
during the night, and whom he has good cause to suspect
of having committed, or of being about to commit, any
felony against the Larceny, Malicious Injuries to Property,
or Offences against the Person Acts respectively (h). Also
he may take into custody any holder of a licence granted
under the Penal Servitude Acts, or any person under police
supervision, whom he reasonably suspects of having com-
mitted any offence (i). There are many other cases in which
a constable is authorised by various statutes to arrest without
warrant, as, e.g., persons suspected of offences against
section 2 of the Criminal Law Amendment Act, 1885 (see
2 & 3 Geo. V. c. 20, s. 1), or against the Children Act, 1908,
or any of the offences specified in the First Schedule to that
Act (see 8 Ed. VII. c. 67, s. 19), or against the Official Secrets
Act, 1911.
If, upon a reasonable charge for which he may arrest
without warrant, the constable refuses, he may be indicted
and fined. When he acts without a warrant, by virtue of
his office as constable, he should, unless the party is
previously acquainted with the fact, or can plainly see it,
notify that he is a constable, or that he arrests in the King's
name, and for what.
The constable's right to break open doors, his justification
in killing in the execution of his duty, and the consequences
of his being killed, are generally the same as if he had pro-
ceeded upon a warrant (k).
iv. Arrest by private persons. — Any person who is present
when a felony is committed not only may, but is bound,
without warrant, to arrest the offender. And a private
person is bound to assist an officer who demands his aid in
(^i) 24 & 25 Vict. c. 97, s. 57 ; c. 100, s. 66; 6 & 7 Geo. V. c. 50, s. 41, sub-s. 3.
(t) 54 & 55 Vict. c. 69, s. 2. As to arrest of persons likely to commit crimes
tinder the Prevention of Crime Act, v. 34 & 35 Vict. c. 112. s. 7 (post, p. 431).
Special Acts regulate the powers of constables within the Metropolitan Police
District.
(k) V. p. 290.
PEOCESS TO COMPEL APPEARANCE. 295
the lawful taking of a felon, or the suppression of an affray,
and if he refuses without good excuse he is liable to fine
and imprisonment. A private person also may arrest (i)
any person whom he finds committing an indictable offence
by night {i.e., 9 p.m. to 6 a.m. (Z)); or (ii) a person com-
mitting any offence (except angling in the daytime) punish-
able under the Larceny Act, 1861 (w) or any offence against
the Larceny Act, 1916 (except an offence against s. 31) {n);
or (iii) a person committing an indictable offence against
the Coinage Act (o). Also the owner of the property injured,
or his servant, or any other person authorised by him, may
apprehend a person committing any offence against the
Malicious Injuries to Property Act (/?). Any person to whom
property is offered to be sold, pawned, or delivered, if he has
reasonable cause to suspect that any offence punishable under
the Larceny Act has been committed with respect to such
property, is authorised and required to forthwith take the
party offering and the property offered before a magistrate {q)^
who may make an order for the delivery of the property
to the person appearing to him to be entitled to it (r).
A private person may also arrest, without warrant, on
reasonable suspicion of felony. And for this purpose he
may even break into a house to arrest the suspected person,
if the latter be within the house and refuse to surrender [s).
But the person arresting does so at his peril, and is liable to
an action for false imprisonment, unless he can afterwards
prove that a felony has actually been committed by some
(I) 14 & 15 Vict c. 19, 8. 11.
(m) 24 & 25 Vict. c. 96, s. 103.
(n) 6 & 7 Geo. V. c. 60, s. 41, sub-s. 1.
(o) 24 & 25 Vict. c. 99, s. 31.
(p) Ihid. c. 97, 8. 61.
(g) 6 & 7 Geo. V. c. 60, s. 41, sub-s. 2. As to arrest in game offences, v.
p. 134, for offences in the Metropolis, v. 2 & 3 Vict. c. 47, s. 66; in other towns,
10 & 11 Vict c. 89, 8, 15 ; of persons twice previously convicted and found on
private premises without giving a satisfactory account of themselves, 34 & 35
Vict. c. 112, s, 7; of deserters, 44 & 45 Vict. c. 58, s. 154; by pawnbrokers,
36 & 36 Vict. c. 93, s. 34; of brawlers in churches or chapels, 23 & 24 Vict.
c. 32, 8. 3; of railway passengers defrauding company, 8 & 9 Vict c 20
88. 103, 104.
(r) 60 & 61 Vict. c. 30, s. 1. • ^
(«) Archbold, 92.
296 PROCESS TO COMPEL APPEARANCE.
one, and that there was reasonable ground to suspect the
person apprehended (t). It will be remembered that a peace
officer is not liable, although no crime has been committed,
if there were reasonable grounds for suspicion.
A private person may arrest another for the purpose of
putting a stop to a breach of the peace committed in his
presence. He may also arrest to prevent the commission of
a felony or the infliction of a deadly injury (u).
Arrest upon Htie and Cry was the old common law process
of pursuing with horn and with voice all felons and such
as have dangerously wounded others. The hue and cry might
be raised by constables or private persons, all of whom had
the same powers as if acting under the warrant of a
magistrate.
Rewards for the Apprehension of Offenders.
In connection with the subject of arrest, we may notice
some encouragements which the law holds out for exertions
in bringing certain classes of criminals to justice. When
any person appears to a Court of oyer and terminer and gaol
delivery to have been active in the apprehension of any
person charged with any of the following offences, viz.,
murder, feloniously and maliciously shooting at any person,
stabbing, cutting, poisoning, administering anything to
procure miscarriage, rape, burglary or felonious housebreak-
ing, robbery from the person, arson, horse, bullock, or sheep
stealing; or with being accessory before the fact to any of
the offences aforesaid; or with receiving stolen property
knowing the same to have been stolen, the Court is authorised
to order the sheriff to pay to such person such sum of money
as it thinks proper to compensate for his expense, exertion,
and loss of time in the apprehension. This reward is to be
over and above the ordinary payments to prosecutors and
witnesses (w). By a later statute, at the sessions the Court
may order such compensation to be paid in case of any of
(t) Beckwith v. Philby, [1827] 6 B. & C. at p. 638; 5 L. J. M. C. 132; 30
E. R. 484.
(u) Handcock v. Baker, [1800] 2 B. & P. 260; 5 R. R. 587; Archbold, 92.
{w) 7 Geo. IV. c. 64, s. 28.
PROCESS TO COMPEL APPEAIIANCE. 297
the above offences which they have jurisdiction to try; but
the payment to one person must not exceed £5 (x). If any
one is killed in endeavouring to apprehend a person charged
with one of these offences, the Court may order compensation
to be paid to the family (y). The amount to be paid in all
such cases is subject to regulations which may be made from
time to time by the Secretary of State {z)i.
(x) 14 & 15 Vict. c. 55, s. 8.
(l/) 7 Geo. IV. c. 64, s. 30.
(z) 14 & 15 Vict. c. 55, s. 5.
CHAPTEE III.
PROCEEDINGS BEFORE THE MAGISTRATE.
When an arrest has been made the accused must be taken
before a magistrate or magistrates as soon as possible.
The magistrate is bound to forthwith examine into the
circumstances of the charge. In order to secure the
attendance of witnesses to the fact, they may, if necessary,
be served with a summons or warrant. If a witness refuses
to be examined, he is liable to imprisonment for seven
days (a). The room in which the examination is held is
not to be deemed an open Court; and the magistrate may
exclude any person if he thinks fit (6). When the witnesses
are in attendance, the magistrate takes, in the presence of
the accused (who is at liberty by himself or his counsel to
put questions to any witness produced against him), the
statement on oath or affirmation of those who know the facts
of the case, and the magistrate's clerk puts the same in
writing. These statements (technically termed depositions)
are then read over to and signed respectively by the witnesses
who have been examined and by the magistrate taking such
statements (c). If the person called to give evidence object
to be sworn, and state as the ground of such objection either
that he has no religious belief or that the taking of an oath
is contrary to his religious belief, he may be permitted to
make a solemn affirmation instead of taking an oath [d).
ia) 11 & 12 Vict. c. 42 (The Indictable Offences Act, 1848), b. 16. As this
is the chief Act dealing with the subject of this chapter, reference merely to a
section must be understood of that statute.
(h) s. 19. But the contrary is the case where magistrates deal with matters,
falling within their summary jurisdiction, v. 11 & 12 Vict. c. 43, s. 12.
fc) s. 17.
(d) 51 & 52 Vict. c. 46, b. 1
PROCEEDINGS BEFORE THE MAGISTRATE. 299
Children, as will be seen later, may give evidence not upon
oath (e).
The depositions, having been completed, are read over
in the presence of the accused, and the magistrate asks him
if he wishes to say anything in answer to the charge,
cautioning him that he is not obliged to say anything, but
that whatever he does say will be taken down in writing,
and may be used in evidence against him at his trial ; at
the same time explaining that he has nothing to hope from
any promise and nothing to fear from any threat which
may have been held out to him to induce him to make any
confession of guilt. Whatever the accused then says is taken
down in writing, and signed by the magistrate, and may
be read at the trial without further proof (/). The right
which the defendant has to make an unsworn statement of
this kind is not in any way affected by the Criminal Evidence
Act, 1898 [g), and he may either make such a statement or
give sworn evidence on his own behalf like any other
witness {h). The accused is then asked whether he desires
to call any other witnesses, and if he does, their evidence is
taken. Their depositions, in the same way as those on the
part of the prosecution, are read to and signed by the
witnesses and by the magistrate, and the witnesses on both
sides (other than those merely to character) are bound by
recognisance to give evidence at the trial (i). If a witness
refuses to enter into such recognisances, he may be committed
to prison until the trial. The recognisances, depositions, &c.,
are transmitted to the Court in which the trial is to take
place {k).
If the investigation before the magistrate cannot be
completed at a single hearing, he may from time to time
remand the accused to gaol for any period not exceeding
eight days, unless the person remanded and the prosecutor
(c) Post, p. 369.
(/) 8. 18.
ig) 61 & G2 Vict. c. 36, s. 1.
(/i) As to the defendant giving evidence see p. S65, ei sea.
(i) 11 & 12 Vict. c. 42, ss. 16, 20; 30 & 31 Vict. c. 35, s. i
(fe) 8. 20.
300 PROCEEDINGS BEFORE THE MAGISTRATE.
consent to a longer remand, or may allow him his liberty in
the interval upon his entering into recognisances, with or
without sureties, for reappearance (Z).
If, when all the evidence against the accused has been
heard, the magistrate does not think that it is sufficient to
put the accused on his trial for an indictable offence, he is
forthwith discharged. But if he thinks otherwise, or the
evidence raises a strong or probable presumption against the
accused, he cormnits him for trial, either at once sending
him to gaol so as to be forthcoming for trial, or admitting
him to bail (m). Under certain circumstances a third course
is open to the magistrate; he may dispose of the case and
punish the offender himself (??).
It will be noticed that there are two forms of commitment
to prison : (a) for safe custody; (b) in execution, either as an
original punishment, or as a means of enforcing payment
of a pecuniary fine, or of enforcing obedience to the sentence
or order of a magistrate or the sessions. The warrant of
commitment, under the hand and seal of the committing
magistrate, directed to the gaoler, contains a concise state-
ment of the cause of commitment. By the Habeas Corpus
Act (o) the gaoler is required, under heavy penalties, to
deliver to the prisoner, or other person on his behalf, a copy
of the warrant of commitment or detainer within six hours
after demand. The imprisonment of which we are now
speaking is merely for safe custody and not for punishment;
therefore, those so imprisoned are treated with much less
rigour than those who have been convicted. Thus, they may
have sent to them food, clothing, &c., subject to examination
and the rules made by the visiting magistrates. They have
the option of employment, but are not compelled to perform
any hard labour; and if they choose to be employed, and
are acquitted, or no bill is found against them, an allowance
is paid for the work (p).
(I) 8. 21 : 4 & 5 Geo. V. c. 58, s. 20, sub-s. 2.
(m) 8. 25.
(n) V. p. 454, et seq.
(o) 31 Car. II. c. 2, s. 5.
(p) 28 & 29 Vict. c. 126, ss. 20, 32, 33.
PKOCEEDINGS BEFORE THE MAGISTRATE. 301
BAIL.
The admitting to bail consists, in theory, in the delivery-
(or bailment) of a person to his sureties, on their giving
security (he also entering into his own recognisances) for
his appearance at the time and place of trial, there to
surrender to take his trial. In the meantime, he is 'allowed
to be at large; being supposed to remain in their friendly
custody. But a justice may dispense with sureties and
release the accused person on his own recognisances, if in
the opinion of the magistrate this course will not tend to
defeat the ends of justice {q).
A magistrate may not admit to bail a person accused of
treason. In that case it is allowed only by order of a
Secretary of State, or by the King's Bench Division, or a
Judge thereof in vacation (r). If the prisoner is charged
with some other felony, or one of the misdemeanours
enumerated below, or an attempt to commit a felony, the
magistrate may, in his discretion, but is not obliged to,
admit to bail. The misdemeanours above mentioned are :
Obtaining, or attempting to obtain, property by false
pretences; receiving property, stolen or obtained by false
pretences; perjury or subornation of perjury; concealing
the birth of a child by secret burying or otherwise; wilful
or indecent exposure of the person; riot; assault in pursuance
of a conspiracy to raise wages; assault upon a peace officer
in the execution of his duty or upon any person acting in
his aid ; neglect or breach of duty as a peace officer, or any
misdemeanour for the prosecution of which the costs may
be allowed out of the county rate. In other misdemeanours
it is imperative on the magistrate to admit to bail (5).
Where a Court of summary jurisdiction commits for trial
a person charged with any misdemeanour and does not admit
him to bail, the Court must inform the person accused of
his right to apply for bail to a Judge of the High Court (t).
iq) 61 & 62 Vict. c. 7.
(r) 11 & 12 Vict. c. 42, b. 23 ; 36 & 37 Vict. c. 66, ss. 16, 34 5 38 & 39 Vict,
c. 77, 8. 19.
(«) s. 23.
(t) 4 & 5 Geo. V. c. 58. s. 23.
302 PROCEEDINGS BEFORE THE MAGISTRATE.
In cases where, in the exercise of their discretion, the
magistrates have the power of admitting to bail or refusing
it, the principle which is to guide them is the probability
of the accused appearing to take his trial, and not his
supposed guilt or innocence (u), though this latter point
may be one element to be considered in applying the test.
Thus it has been laid down that the points which the Courts
will consider in exercising their discretion include the
seriousness of the charge, the evidence in support of
it, and the punishment which the law awards for the
offence (w). Practically, in charges of murder bail is
never allowed.
Who may be bail? The magistrate (or Court, v. infra)
will act according to his discretion as to the sufficiency of
the bail, and the proposed bail may be examined upon oath
as to their means. An infant, or a prisoner in custody,
cannot be bail; nor can a person who has been convicted of
an infamous crime, as perjury (a;) ; there is now no objection
to a married woman becoming bail if she has separate estate.
The usual number of bail is two; but sometimes only one is
required, and sometimes three or more. The sureties or bail
are not compelled to act as such for a longer time than they
wish. If they surrender the accused before the magistrate
or Court by whom he has been bailed, he will be committed
to prison, and they will be discharged of their obligation.
But the accused may then find fresh sureties. If the bail
agree with the defendant or other persons that, in case the
defendant is not forthcoming to take his trial, the bail shall
be indemnified against loss, the parties to the agreement are
punishable for conspiracy (y).
Both at common law and by statute (z), to refuse or delay
to admit to bail any person bailable is a misdemeanour in
the magistrate. But it has been held that the duty of a
(m) R. v. Scaife, [1841] 9 Dowl. P. C. 553; 5 Jur. 700.
(w) Barronet, In re, [1852] 1 E. & B. 1 ; 22 L. J. M. C. 25; Robinson, In re,
[1854] 23 L. J. Q. B. 286. See also R. v. Stephen Butler, [1881] 14 Cox, 530.
(x) V. R. V. Edwards, [1791] 4 T. K. 440.
iy) R. V. Porter, [1910] 1 K. B. 369; 79 L. .T. K. B. 241.
(z) 31 Car. II. c. 2 (Habeas Corpus); 1 Will. & M. Sess. 2, c. 2 (Bill of
Eights).
PROCEEDINGS BEFORE THE MAGISTRATE. 303
magistrate in respect of admitting to bail is a judicial duty;
and therefore that not even an action can be maintained
against him for refusing to admit to bail, where the matter
is one as to which he may exercise his discretion (a). It is
provided by the Bill of Rights that excessive bail ought not
to be required; though what is excessive must be left to be
determined by the Court in considering the circumstances
of the case. If the magistrate or other authority admits to
bail where this is not allowable, or if he takes wholly
insufficient bail, he is liable to punishment on the non-
appearance of the accused (6).
The stage in the proceedings where the question of bail
usually arises is when the accused is before the magistrates.
But when a person charged with an indictable offence has
been committed to prison to await his trial, it is lawful at
any time afterwards, before the first day of the sessions or
assizes at which he is to be tried, for the magistrate who
signed the warrant for his commitment to admit him to
bail (c).
As to bail in other cases than in proceedings before the
magistrates : —
The Kinff's Bench Division has a discretionary power of
admitting to bail a prisoner charged with any indictable
offence or on suspicion thereof; and this whether he is
brought before the Court by a writ of habeas corpus or other-
wise. The application for bail is, in the first instance,
made by summons before a Judge at Chambers (d). The
Judge may admit to bail where bail has been refused by the
magistrate, and it is usually in such cases that applications
are made to the King's Bench Division. He may order the
accused to be admitted to bail before a magistrate when it is
inconvenient to bring him and his bail up to town. If the
Judge refuses bail, an application may be made de novo to
a Divisional Court, or to any other branch of the High Court
(a) Linford v. Fitzroy, [1849] 13 Q. B. 240; 18 L. J. M. C. 108; R. v.
Badger, [1843] 4 Q. B. 468; 12 L. J. M. C. 66.
(b) Archbold, 87.
(c) 11 & 12 Vict. c. 42, 8. 23.
id) Crown Office Rules, 1906, r. 111.
304 PROCEEDINGS BEFORE THE MAGISTRATE.
or the Lord Chancellor, but no aypeal lies to the Court of
Appeal (e).
It seems to be a general rule that where any persons are
Judges of any crime, they have the power of bailing a
person indicted before them of such crime (/) ; so that :
Justices in Session may bail persons indicted at the sessions.
Judges of Gaol Delivery, S^c., may bail those indicted at
the Assizes or Central Criminal Court when they are sitting.
If one accused of treason or felony is not tried at the first
sessions of gaol delivery after commitment, he may demand
to be released or bailed, unless it appears on oath that the
witnesses for the prosecution could not be present at those
sessions. If he is not tried at the second sessions^ he must
be discharged from imprisonment (g).
Coroners are authorised to admit to bail persons charged
with manslaughter by verdict of the coroner's jury (h).
In addition to judicial officers, police officers have a limited
power of taking bail.
Police Officers. — If a person is taken into custody for an
offence without a warrant, a Court of summary jurisdiction
within twenty-four hours from the time when he is arrested,
a superintendent or inspector of police, or the officer in
charge of any police station, may in any case, and must,
if such person cannot be brought before a Court of summary
jurisdiction within twenty-four hours after he was taken
into custody, enquire into the case, and, except where the
offence appears to him to be of a serious nature, he must
discharge the prisoner upon his giving bail with or without
sureties for a reasonable amount to appear before the
Court, and if such person is retained in custody, he must
be brought before a Court of summary jurisdiction as soon
as practicable (z). And if the person arrested is apparently
(e) R. V. Foote, [1883] 10 Q. B. D. 378; 52 L. J. Q. B. 528; 48 L. T. (N. S.)
394; 31 W. R. 490; 48 J. P. 3C; 15 Cox, 250.
(n Archbokl, 86.
(g) 31 Car. II. c. 2, s. 7. But see K. v. Boicen, [1840] 9 C. & P. 509.
(h) 50 & 51 Vict. c. 71, s. 5. As to personating bail, v. p. 239.
(0 4 & 5 Geo. V. c. 58, s. 22.
PROCEEDINGS BEFORE THE MAGISTRATE. 305
under the age of sixteen years and cannot at once be brought
before the Court, the superintendent or officer in charge of
the police-station must release him on bail, with or without
sureties, unless the charge is one of homicide or other grave
crime, or unless it is necessary in the interest of the person
arrested to remove him from association with any reputed
criminal or prostitute, or unless the officer has reason to
believe that his release would defeat the ends of justice {k).
If such person is not released he must be kept in a special
place of detention and prevented from associating with other
persons charged with offences (Z). The police must inform
his parent or guardian of his arrest (w,).
It may be noticed here that at any time between the
conclusion of the examination before the magistrate and the
first day of the trial at the assizes or sessions, the accused,
whether held to bail or committed to prison for trial, may
have on demand copies of the examination of the witnesses
upon whose depositions he has been so held to bail or com-
mitted, on payment of a reasonable sum for the same, not
exceeding three-halfpence for each folio of ninety words (n).
And at the time of trial he may inspect the depositions with-
out any fee (o). The same rules apply also to depositions on
behalf of the prisoner (p).
The recognisances whereby the prosecutor and witnesses
are bound over to appear at the trial, together with the
written information (if any) ; the depositions ; the statement
of the accused ; the recognisances of bail (if any) ; are
remitted by the magistrate to the proper officer of the Court
where the trial is to be had (q).
(k) 8 Edw. VII. c. 67, s. 94.
(I) Ibid. 88. 95, 96.
(m) Ibid. 8. 98.
(n) 11 & 12 Vict. c. 42, s. 27.
(o) 6 & 7 Will. IV. c. 114, 8. 4.
(p) 30 & 31 Vict. c. 35, 8. 4.
(q) 11 & 12 Vict. c. 42, s. 20; 30 & 31 Vict. c. 36, s. 3
c.L. 20
CHAPTER IV,
MODES OF PROSECUTION.
The accused has either been committed to prison for safe
custody, or has been left at liberty in virtue of his having
found sureties for his appearance. The next point to be
considered is the prosecution (r), or manner of formal
accusation. This may be either: —
A. Upon a presentment upon oath by the jury at an
inquest, or by a grand jury.
B. Without such a presentment.
A. The most usual mode is by indictment, and it is
desirable, in the first place, to say a few words on — -
Presentment. — This term, taken in a wide sense, includes
both an indictment found by a grand jury and an inquisition
of office. In a narrow sense it is the formal notice taken by
a grand jury of any matter or offence from their own
knowledge or observation, without the intervention of any
prosecutor or the examination of any witness, as the present-
ment of a nuisance by non-repair of highways (5). Such
presentments are extremely rare.
An Inquisition is the record of the finding of a jury sum-
moned to enquire of matters relating to the Crown upon
evidence laid before them. The most common kind of
inquisition is that of the coroner, which is held with a view
to find out the cause of a death. The accused is afterwards
arraigned upon the inquisition (t).
(r) In a wide sense the term " prosecution " is applied to the whole of the
proceedings for bringing the offender to justice.
(5) Archbold, 72.
it) V. p. 318.
MODES OF PROSECUTION. 307
An Indictment is a written or printed accusation of one or
more persons of a crime, preferred to, and presented on oath
by, a grand jury (w). It lies for all treasons and felonies,
for misprisions of either, and for all misdemeanours of a
public nature at common law {w). Statutory offences are
punishable by indictment if the statute specifies no other
mode of proceeding [x). If the statute specifies a mode of
proceeding different from that by indictment, then, if the
matter was alread}^ an indictable offence at common law,
and the statute introduces merely a different mode of
prosecution and punishment, the remedy is cumulative, and
the prosecutor has still the option of proceeding by indict-
ment at common law, or by the mode pointed out by the
statute {y).
The law relating to indictments has been much modified
by the Indictments Act, 1915, which has greatly simplified
the form of indictments and given the Court wide powers
of amending defects. By section 2 of the Act, moreover,
a Rule Committee has been established, with power to vary
and add to the existing rules contained in the first schedule
to the Act {z). By section 3 of the Act it is provided that
" Every indictment shall contain, and shall be sufficient if
it contains, a statement of the specific offence or offences
with which an accused person is charged, together with such
particulars as may be necessary for giving reasonable in-
formation as to the nature of the charge." And, "notwith-
standing any rule of law or practice, an indictment shall,
subject to the provisions of this Act, not be open to objection
in respect of its form or contents if it is framed in accordance
with the rules under this Act."
As to the material, &c., for indictments, it is provided by
Rule 1 (1, 2, 3) that the indictment may be on parchment
(u) By the Grand Juries (Suspension) Act, 1917 (7 Geo. V. c. 4), provision
was made for the suspension of grand juries during the war and for six months
after its termination.
(to) Archbold, 1.
(x) Ibid. R. V. Hall, [1891] 1 Q. B. 747; 60 L. J. M. C. 124; v. p. 5.
(y) ft. V. fiobtnsorj, [1759] 2 Burr. 799.
(z) 5 & 6 Geo. V. c. 90, s. 2. Since the Act additional rules have been made.
308 MODES OF PROSECUTION.
or paper (of specified size), and either written, printed, or
partly written and partly printed. (4) Figures and abbrevia-
tions may be used for anything commonly expressed thereby.
(5) On the back of the indictment there must be endorsed
the name of every witness examined or intended to be
examined by the grand jury, and the foreman must initial
the name of every witness examined. (6) No indictment shall
be open to objection by reason only of any failure to comply
with this rule.
The form of the indictment is prescribed by the Rules, to
which is added an appendix of forms. The following is an
example (a) : —
The King v. A.B.
Court of Trial '[e.g., Central Criminal Court [or] Durham
County- Assizes held at Durham [or] Hants Quarter Sessions
held at Winchester].
Presentment of the Grand Jury.
A.B. is charged with the following offences:
Statement of Offence.
First Count (6).
Arson, contrary to s. 2 of the Malicious Damage Act, 1861.
Particulars of Offence.
A.B., on the day of , in the County of ,
maliciously set fire to a dwelling-house, one F.G. being
therein.
Statement of Offence.
Second Count.
Arson, contrary to s. 3 of the Malicious Damage Act, 1861.
Particulars of Offence.
A.B., on the day of , in the County of ,
maliciously set fire to a house with intent to injure or
defraud.
[A.B. is a habitual criminal (c)].
(a) Further examples are given in Appendix A to this book.
(b) If there is only one count the words " first count " are omitted.
(c) V. p. 315.
MODES OF PROSECUTION. 309
An indictment consists of three parts — the commencement,
the statement of offence (or statements of offences), and the
particulars of offence (or offences).
The form of the commencement is prescribed by Rule 2.
Two points here require comment.
The venue is now indicated by simply stating the Court of
trial at the commencement of the indictment in the pre-
scribed manner. The further consideration of this matter
will be reserved for a separate chapter.
By section 4 and Rule 3 of the Act charges for more than
one felony or misdemeanour and charges for both felonies and
misdemeanours may be formed in the same indictment if
these charges are founded on the same facts or are a part of
a series of offences of the same or a similar character (d).
But where a felony is tried together with a misdemeanour,
the jury must be sworn and the person accused will have
the same right of challenging jurors as if all the offences
charged were felonies. And if, before trial, or any stage of
a trial, the Court is of opinion that a person accused may
be prejudiced or embarrassed in his defence by reason of
being charged with more than one offence in the same indict-
ment, or that for any other reason it is desirable to direct
that the person should be tried separately for any one or
more offences charged in an indictment, the Court may order
a separate trial of any count or counts in an indictment
[Section 5 (3)]. But Rule 12 provides that nothing in these
rules or in any rules made under the Act shall affect the pro-
visions of s. 32 (4) of the Children Act, 1908. That sub-section
provides that when any offence under Part II. of the Act, or
any offence mentioned in the First Schedule to the Act, is a
continuous offence, it shall not be necessary to specify in the
summons, information, or indictment the date of the acts
constituting the offence.
(d) Formerly a count for a felony could not be joined with a count for a
misdemeunour. It was no objection in point of law to an indictment that it
contained charges of distinct felonies in different counts, but subject to certain
statutory exceptions, the prosecution might be required to elect upon which
count it would proceed. And even in case of misdemeanours, where an indict-
ment contained several counts the prosecution might be compelled to elect if
the accused would otherwise be embarrassed in his defence.
310 MODES OF PROSECUTION.
The description of the offence charged in an indictment, or,
where more than one offence is charged, of each offence, is
set out in the indictment in a separate paragraph, called a
Count [Rule 4 (1)]. Each count is for the purposes of
evidence and judgment equivalent to a separate indictment.
A count commences with a statement of the offence
charged, called the " statement of offence." This must
" describe the offence shortly in ordinary language, avoiding
as far as possible the use of technical terms, and without
necessarily stating all the essential elements of the offence,
and if the offence charged is one created by statute, shall
contain a reference to the section of the statute " [Rule 4
(2) (3)].
After the statement of offence the particulars of offence
must be set out " in ordinary language, in which the use
of technical terms shall not be necessary " [Rule 4 (4)].
At common law it was necessary to set out with certainty
all the facts, circumstances, and intent constituting the crime
and directly to charge the defendant with having committed
it (e). Now the rules deal with this subject as follows: —
Rule 5 provides as to statutory offences (1) that where the
offence is " the doing or the omission to do any one of any
different acts in the alternative, or the doing or omission to
do any act in any one of any different capacities, or with
any one of any different intentions, or states any part of the
offence in the alternative, the acts, omissions, capacities, or
intentions, or other matters stated in the alternative in the
enactment, may be stated in the alternative in the count
charging the offence (/) ; (2), that it shall not be necessary, in
any count charging a statutory offence, to negative any
exception or exemption from or qualification to the operation
of the statute creating the offence.
(e) Formerly the use of the proper technical words was necessary as, e.g.,
" feloniously and burglariously " or "feloniously and of malice aforethought."
(/) This is an important change, as formerly in case of alternative acts, omis-
sions, or intentions it was necessary to have a separate count for each alternative
charge. Thus where, for example, an act was a statutory offence if done with
■--tent to injure or defraud, it was usual to have two counts, one charging an
'+s*ent to injure and another charging an intent to defraud. Now one count
may charge an intent to injure or defraud.
MODES OF PROSECUTION. 311
Rule 6, as to property, provides (1) that the description of
property in a count in an indictment shall be in ordinary-
language, and such as to indicate with reasonable clearness
the property referred to, and if the property is so described
it shall not be necessary (except when required for the
purpose of describing an offence depending on any special
ownership of property or special value of property) to name
the person to whom the property belongs (g) or the value of
the property; (2) that where property is vested in more than
one person, and the owners of the property are referred to-
in an indictment, it shall be sufficient to describe the property
as owned by one of those persons by name with others, and
if the persons owning the property are a body of persons with
a collective name, such as "inhabitants," "trustees," "com-
missioners," or "club" or other such name, it shall be
sufficient to use the collective name without naming any
individual.
Rule 7, as to the description of persons, provides that the
description or designation in an indictment of the accused
person or of any other person to whom reference is made
therein shall be such as is reasonably sufficient to identify
him, without necessarily stating his correct name, or his
abode, style, degree, or occupation; and if, owing to the
name of the person not being known, or for any other reason,
it is impracticable to give such a description or designation,
such description or designation shall be given as is reasonably
practicable in the circumstances, or such person may be
described as "a person unknown."
Rule 8, as to description of documents, provides that when
it is necessary to refer to any document or instrument in an
indictment, it shall be sufficient to describe it by any name
or description by which it is usually known, or by the
purport thereof, without setting out any copy thereof.
(g) Before the Act it was necessary to name the owner of property in respect
of which the offence was committed. In spite of this rule, Forms 9 and 10
contain the name of the owner of the property and should be followed. In
Form 10 the value is stated because it is an essential ingredient of the offence.
Property stolen from a bailee may be described as the property either of the
bailor or the bailee.
312
MODES OF PROSECUTION.
Rule 9, as to descriptions generaUy, provides that, subject
to any other provision of the rules, it shall be sufficient to
describe any place, time, thing, matter, act, or omission
•whatsoever to which it is necessary to refer in any indictment,
in ordinary language in such a manner as to indicate with
reasonable clearness the place, time, «S;c,, referred to.
Rule 10, as to statements of intent, provides that it shall
not be necessary in stating any intent to defraud, deceive, or
injure to state an intent to defraud, &c., any particular
person where the statute creating the offence does not make
an intent to defraud, &c., a particular person an essential
ingredient of the offence [h).
By section 5 wide powers of amending an indictment are
given, and it is provided that (1) where, before trial, or at
any stage of a trial, it appears to the Court that the indict-
ment is defective, the Court shall make such order for the
amendment of the indictment as the Court thinks necessary
to meet the circumstances of the case, unless, having regard
to the merits of the case, the required amendments cannot
be made without injustice, and may make such order as to
the payment of any costs incurred owing to the necessity
for amendment as the Court thinks fit.
(2) When an indictment is so amended, a note of the order
for amendment shall be indorsed in the indictment, which
shall be treated as having been found by the grand jury in
the amended form.
(3) [Proviso for separate trial of different offences charged,
see p. 309.]
(4) Where before trial, or at any stage of a trial, the
Court is of opinion that the postponement of the trial of a
person accused is expedient as a consequence of the exercise
of any power of the Court to amend an indictment or to order
a separate trial of a Court, the Court shall make such order
as to the postponement of the trial as appears necessary.
{K) The rule, therefore, does not apply to indictments under section 24 of the
Offences against the Person Act, 1861, where the intent must be to injure, etc.,
the particular person to whom the poison, etc., is administered; v. p. 176.
MODES OF PROSECUTION. 313
(5) Where an order for postponement or separate trial is
made — (a) if such an order is made during a trial, the Court
may order the jury to be discharged from giving a verdict
on the count or counts the trial of which is postponed or
on the indictment, as the case may be; (b) the procedure
on the separate trial of a count shall be the same in all
respects as if the count had been found in a separate indict-
ment, and the procedure on the postponed trial shall be the
same in all respects (if the jury has been discharged) as if
the trial had not commenced; and (c) the Court may make
such order as to costs and as to admitting the accused
person to bail, and as to the enlargement of recognisances
and otherwise as the Court thinks fit.
By section 6, if an indictment is of unnecessary length
or is materially defective, the Court may make such order
as it thinks fit as to the payment of any part of the costs of
the prosecution which have been incurred thereby (i).
By section 7, " Nothing in this Act shall prevent an
indictment being open to objection if it contravenes or fails
to comply with the Vexatious Indictments Act, 1859, as
amended by section 1 of the Criminal Law Amendment Act,
1867, or any other enactment : Provided that an indictment
shall not be open to objection under those Acts on the ground
that a count is joined with the rest of the indictment which
could not at the time of the passing of the Criminal Law
Amendment Act, 1867, be lawfully joined, if that count
can be lawfully joined under the law for the time being
in force."
By Rule 13 it is the duty of the Clerk of Assize or,
at Quarter Sessions, the Clerk of the Peace, after a true bill
has been found on any indictment, to supply to the accused
person, on request, a copy of the indictment free of charge.
By section 8, nothing in the Act or rules is to affect the
law or practice relating to the jurisdiction of a Court or
the place where an accused person can be tried, or prejudice
(t) The indictment is usually prepared by an officer of the Court, e.g., the
Clerk of Assize or the Clerk of the Peace at sessions, but, where the case
requires more time or care than usual, it is often drawa by counsel.
314 MODES OF PROSECUTION.
or diminisli the obligation to establisli by evidence according
to law any acts, omissions, or intentions wbich are legally
necessary to constitute the offence with which the person
accused is charged, nor otherwise affect the law of evidence
in criminal matters.
The Counts of an Indictment. — An indictment, as we have
seen, may contain several counts. This may be done either
(i) to charge distinct offences committed at different times or
by different acts; (ii) to charge the same act as constituting
two different offences, as, e.g., where the accused person is
charged in two counts with rape and with connection with
an imbecile woman, there being some doubt as to whether
the woman in question was capable of giving consent to the
connection. The necessity for adding a second count is now
much obviated by the wide powers of amendment given to
the Court and the power given to the jury of finding the
defendant guilty of certain offences other than those named
in the indictment [h). As a rule more than one offence cannot
be charged in the same count, except alternatively {J), or the
count will be bad for duplicity. 13ut acts which form part of
a single transaction may be charged in one count without
making it bad for duplicity. Thus, in robbery, the prisoner
may be charged with having assaulted A. and B. and stolen
from A. one shilling, and from B. two shillings, if it was all
one transaction {I).
An exception to the rule against duplicity occurs in indict-
ments for burglary, where it is usual and proper to charge the
accused in one count with having broken and entered the
house with intent to commit a felony and also with having
committed the felony intended. Also in indictments for
continuous offences within section 32 (4) of the Children Act,
1908, no dates need be specified in the indictment, but a
series of acts may be treated as constituting one offence {tti).
In certain cases, if the prisoner has been previously convicted
(k) Before the Act additional counts were used largely for the purpose of
charging alternative intents, etc. This, as we have seen, is now unnecessary;
V. p. 310.
(I) Archbold, p. 54.
(m.) V. p. 309.
MODES OF PROSECUTION. 315
or is a habitual drunkard or habitual criminal, a charge to
this effect is inserted in the indictment because of the
additional power of punishment thereby given to the" Court.
By Rule 11 any such charge must be charged at the end of
the indictment by means of a statement — in the case of a
previous conviction that the person accused has been
previously convicted of that offence at a certain time and
place without stating the particulars of the offence, and in
the case of a habitual criminal or habitual drunkard, that
the offender is a habitual criminal or habitual drunkard, as
the case may be (w).
As to the joinder of two or more defendants in one indict-
ment.— When several persons take part in the commission
of an offence, they may all be indicted together, or any
number of them together, or each separately; and, of course,
some may be convicted and others acquitted. But certain
offences do not admit of a joint commission — for example,
perjury. The misjoinder of defendants may be made the
subject of demurrer, or motion in arrest of judgment or
appeal; or the Court will in general quash the indictment.
As a rule there is no time limited after the commission of
a crime within which the indictment must be preferred (o).
By particular statutes, however, there are exceptions to this
rule, a stated time being fixed, after which criminal pro-
ceedings cannot be commenced. The chief cases, times, and
the statutes regulating them, are the following : —
Treason (except by endeavouring to assassinate the
Sovereign), if committed in Great Britain, three years,
7 & 8 Wm. III. c. 3, s. 5.
Offences against the Riot Act, 1 Geo. I. st. 2, c. 5, s. 8,
twelve months.
Unlawful drilling, six months, 60 Geo. III. & 1 Geo. IV.
C. 1, 8. 7.
(n) See the form given, ante, p. 308.
(o) It must be understood that this applies only to indictable offences and
not to offences punishable upon summary conviction. "With regard to the latter,
criminal proceedings must, as a general rule, be commenced within six months
from the commission of the offence, 11 & 12 Vict c. 43, s. 11, but there are
many exct^tions. /
316 MODES OF PKOSECUTIOX.
Night-poacliin^ offences punishable under 9 Geo. TV.
c. 69, twelve montlis {Ibid., s. 4).
Offences under the Customs Act, three years, 39 & 40
Vict. c. 36, s. 257.
Corrupt or illegal practices at elections, one year, 46 & 47
Vict. c. 51, s. 51; 47 & 48 Vict. c. 70, s. 30.
Indictments or informations upon any statute penal,
whereby the forfeiture is limited to the Sovereign, and unless
such statute provides a shorter limitation, two years, or,
where the forfeiture is limited to the Sovereign and
prosecutor, one year, 31 Eliz. c. 5.
Carnally knowing a girl between the ages of thirteen and
sixteen years, or attempting the same, six months, 48 & 49
Vict. c.*69, s. 5; 4 Edw. VII. c. 15, s. 27.
Prosecutions for acts done in execution or intended
execution of any Act of Parliament or of any public duty or
authority, or for neglect or default in the execution of such
act or duty, must be brought within six months, 56 & 57
Vict. c. 61, s. 1.
B . InfoTTnation .
A criminal information is a complaint on behalf of the
Crown in the King's Bench Division in respect of some
offence not a felony, whereby the offender is brought to trial
without a "previous finding by a grand jury (p).
These criminal informations are of two kinds : —
i. Informations ex officio.
ii. Informations by the Master of the Crown Office.
i. An information ex officio is a formal written allegation
of an offence, filed by the Attorney-General in the King's
Bench Division. It lies for misdemeanours only; for in
treason and other felonies it is the policy of the English
law that a man should not be put upon his trial until the
necessity for that course has been shown by the oath of
(p) This species of information is, of course, quite distinct from an " informa-
tion " made to a magistrates of some offence punishable on summary conviction.
The term " information " is also used of several other kinds of proceedings,
as, e.g., proceedings taken to recover statutory penalties and actions by the
Attorney-General in his official capacity. The Annual Practice, pp. 2 and 3.
MODES OF PROSECUTION. 317
the grand jury. The objects of this kind of information
are such enormous misdemeanours as peculiarly tend to
disturb or endanger the Government, or to interfere with
the course of public justice, or to molest public officers;
for example, seditious libels or riots, obstructing officers in
Ihe execution of their duties, oppression, bribery, &c., by
magistrates or officers (q). If the Attorney-General delays
for twelve months to bring the case on for trial, after due
notice the Court may authorise the defendant to do so.
The form of an information is now governed by the Indict-
ments Act, 1915, and is the same as that of an indictment,
except that the heading is as follows (r) : —
The King v. A.B.
In the High Court of Justice, King's Bench Division.
Criminal Information filed by the King's Attorney-General.
A.B. is charged with the following offence:
Statement of Offence, &c.
ii. Information by the Master of the Crown Office. — A
formal written suggestion of an offence, filed in the King's
Bench Division at the instance of an individual, by the
Master of the Crown Office, without the intervention of a
grand jury. Here, a point in which this differs from the
former kind of information, the leave of the Court has to be
obtained, which must be applied for in open Court (5). It
lies for all misdemeanours; but the Court usually will only
allow this proceeding in the case of misdemeanours of a gross
and notorious kind, which, on account of their magnitude
or pernicious example, deserve the most public animad-
version (those peculiarly tending to disturb the Government
being usually left to the Attorney-General as above) — for
example, bribery, aggravated libels, and offences against the
administration of justice.
(9) Archbold, 125; R. v. Russell, [1905] 93 L. T. 407; 69 J. P. 460.
(r) Archbold, 126. By rules of May 23, 1916, it is provided that Kule 1 (5)
of the Rules in the Schedule to the Indictments Act, 1915, shall not apply to
informations.
(«) Crown Office Rules, 1906, r. 35.
318 MODES OF PROSECUTION.
The modern rule with regard to granting criminal infor-
mations for libel is that leave will in such cases only be
granted when the person libelled occupies some public office
or position, and that leave will not be granted at the suit of
a private person (t).
The course of proceedings is the following : An applica-
tion, which must be by counsel, is made for a rule to show
cause why a criminal information should not be filed against
the party complained of. This application must be founded
upon an affidavit disclosing all the material facts of the case.
If the Court grants a rule nisi, it is afterwards, upon cause
being shown, discharged or made absolute as in ordinary
cases.
The form of this kind of information is similar to that of
an information ex officio, substituting the name of the King's
coroner and attorney for that of the Attorney-General.
The trial of a criminal information takes place at the High
Court of Justice in London and Middlesex, or on the civil
side at assizes in other counties (u) before a Judge and a
common or special jury. It is conducted in the same manner
as the trial of an indictment, but if the defendant is found
guilty he must afterwards receive judgment from the King's
Bench Division.
Coroner's Inquisition (w).
A coroner's inquisition is the record of the finding of the
jury sworn to enquire, super visum corporis, concerning a
death. On this a person may be prosecuted for murder or
manslaughter without the intervention of a grand jury, for
the finding of the coroner's jury is itself equivalent to the
finding of a grand jury. The defendant is arraigned on the
inquisition as on an indictment; and the subsequent proceed-
ings are the same. It is the usual, but by no means a
necessary, practice when a prisoner stands charged on a
coroner's inquisition with murder or manslaughter, to take
(t) R. V. Labouchere, [1884] 12 Q. B. D. 820; 53 L. J. Q. B. 362. As to
criminal informations against justices, v. p. 472.
(«) V. p. 279. As to trial at bar, v. p. 277.
(w) V. pp. 285, 306.
MODES OF PKOSECUTION. 319
him before a magistrate, and, upon the magistrate com-
mitting him for trial, to prefer an indictment against him.
He is then tried both on the inquisition and the indictment
at the same time.
The proceedings upon a coroner's inquest are shortly the
following : On receiving notice of the death, the coroner
issues his warrant for summoning a jury (which must
consist of not more than twenty-three nor less than twelve),
and names the time and place of holding the enquiry. At
the Court the jury are sworn, and then view the body. The
witnesses are examined on oath, and their evidence is put into
writing by the coroner (a;). He has authority to bind by
recognisance all material witnesses to appear at the assizes
to prosecute and give evidence ; and he must certify and
subscribe the evidence and all such recognisances and the
inquisition taken before him, and (if a verdict is found
against any person and he is committed for trial) deliver the
same to the proper officer of the Court in which the trial is to
be, before or at the opening of the Court (y).
The inquisition consists of three parts : the caption or
incipitur, the verdict of the jury, and the attestation.
Its form is governed by the Coroners Act, 1887, as modified
by rules of May 23, 1916, made under the Indictments Act,
1915. By these rules it is provided (i) that Rule 1 (5) and
Rule (2) in the First Schedule to the Indictments Act, 1915,
shall not apply to inquisitions; (ii) that the form provided in
Schedule II. of the Coroners Act may be used; but (iii) that
any offence charged shall be stated in accordance with the
form of indictment relating thereto prescribed by the Indict-
ment Rules, 1915 — 1916 (z). It is also provided that the Clerk
of Assize must on request supply free of charge to a person
committed for trial on a coroner's inquisition so much of the
inquisition as charges him with an offence.
If the jury (twelve of whom at least must concur in the
verdict (a) ) return a verdict of murder or manslaughter, or
(x) 50 & 51 Vict. c. 71, 88. 3, 4
iy) Ibid. 8. 5.
(2) See Archbold, 141.
(o) 50 & 51 Vict. c. 71, «. 4, sub-s. 5.
320 MODES OF PROSECUTION.
of being accessory before the fact to a murder, against a
person, the coroner must commit him for trial, if present,
and if not in custody the coroner must issue a warrant for
his apprehension (6).
If an inquest ought to be held over a dead body, it is a
misdemeanour so to dispose of the body as to prevent the
coroner from holding the inquest (c).
From the foregoing enquiry we find that, apart from
proceedings by way of summary conviction, the only modes
of criminal procedure are by way of indictment, informa-
tion, or inquisition. Of these, proceedings by indictment are
much the most common; and, unless anything be stated to
the contrary, it will be this mode that will be kept in view
in the succeeding pages.
In order to provide more effectually for the prosecution
of offences, Acts have been passed to provide for the appoint-
ment of a Director of Public Prosecutions with a staff of
assistants [d).
The duty of the Director of Public Prosecutions is set
forth to be — to institute, undertake, or carry on, under the
superintendence of the Attorney-General, criminal proceed-
ings, and to give such advice and assistance to chief officers
of police, clerks to justices, and other persons concerned in
any criminal proceeding respecting the conduct of that
proceeding, as may be for the time being prescribed by
rules made under the Act, or may be directed in a special
case by the Attorney-General (e).
The rules referred to were to provide for the Director of
Public Prosecutions taking action in cases which appeared
to him to be of importance or difficulty, or which from any
other reason required his intervention (/).
(6) Ihid. 8. 5. In such a case also the inquisition and depositions must bi"
sent f;o the Public Prosecutor, see Archbold, 143.
(c) R. V. Price, [1884] 12 Q. B. D. 247; 53 L. .1. M. C. 51; v. also R. v.
Stephenson, [1884] 13 Q. B. D. 331 ; 53 L. J. M. C. 176.
(d) 42 & 43 Vict. c. 22 ; amended by 47 & 48 Vict. c. 58, and 8 Edw. VII. c. 3.
(e) 42 & 43 Vict. c. 22, s. 2.
(/) 8 Edw. VII. c. 3, 8. 2.
MODES OF rilOSECUTION. 321
These regulations are to the following effect: —
The cases in which it is the duty of the Director of
Public Prosecutions to carry on a criminal proceeding are :
where the offence is punishable with death, or is of a class
the prosecution of which had hitherto been undertaken by
the Solicitor to the Treasury; or where an order in that
behalf is given by the Secretary of State or the Attorney-
General; or where it appears to the Director that the offence
is of such a character that a prosecution is required in the
public interest, and that, owing to the importance or
difficulty of the case or other circumstances, his action is
necessary to secure the due prosecution of the offender.
The Director of Public Prosecutions is also to give, in any
case which appears to be of importance or difficulty, advice
to clerks of justices of the peace, and to chief officers of
police, and to such other persons as he may think right.
The Director may also assist prosecutors by authorising
them to incur special costs for obtaining scientific evidence,
and plans or models, and in the payment of extra fees to
counsel.
The Director may employ any solicitor to act as his agent
in the conduct of a prosecution. His own action is in all
respects subject to the direction of the Attorney-General.
It is the duty of the Director of Public Prosecutions,
under the Criminal Appeal Act, 1907, to appear for the
Crown on appeals to the Court of Criminal Appeal, unless
some other Government Department, or a private prosecutor,
undertakes the defence of the appeal (g).
(g) 7 Edw. VII. c. 23, 8. 12.
C.L. 21
CHAPTER Y.
PLACE OF TRIAL.
The venue, indicated by stating the Court of trial at the
commencement of an indictment, is the district from which
the jurors are to come and, as a general rule, the district in
which the offence was committed (h). The general common
law rule is that the venue should be the jurisdiction within
which the offence is committed; whether such jurisdiction be
a county, a division of a county, a district including more
than a county, as in the case of the Central Criminal Court,
or a borough. To the general rule many exceptions have
been made by statute, of which the following are the most
important :
i. The venue may be laid in any county {i) for the following
offences : —
Resisting or assaulting officers of the excise [h).
Offences against the Customs Acts {I).
Inciting soldiers or sailors to mutiny (w).
Offences against section 1 of the Dockyards Protection Act,
.1772 (n).
Offences against the Unlawful Oaths Acts of 1797 and
1802 (o).
ih) See Archbold, 28.
(t) By " county " in this chapter must be understood county, division of
county, district, or borough, as the case may be. Offences committed in
detached parts of counties may be dealt with as if committed in the county
wholly or in part surrounding, 2 & 3 Vict. c. 82, s. 1.
(fe) 7 & 8 Geo. IV. c. 53, s. 43.
(I) 39 & 40 Vict. c. 36, s. 258.
(m) 37 Geo. III. c. 70, s. 2; 57 Geo. III. c. 7.
(n) 12 Geo. III. c. 24, s. 2.
(o) V. pp. 42, 43.
PLACE OF TRIAL. 323
ii. The venue may be laid in the county where the offence
was committed, or where the offender is apprehended, or is in
custody •
Forgery, or uttering forged matter (p).
Bigamy (q).
Murder and manslaughter committed on land out of the
United Kingdom by a British subject (r).
Offences against the Larceny Act, 1916 (s). This Act also
provides that any person who steals or otherwise feloniously
takes any property in any part of the United Kingdom may
be tried in any other part of the United Kingdom where he
has the property in his possession (t) ; also that a person
who receives in one part of the United Kingdom property
stolen, etc., in another part may be tried in that part where
he receives it (u).
Offences against the Perjury Act, 1911, or punishable as
perjury or subornation of perjury under any other Act when
committed out of the United Kingdom (w).
Offences relating to the Post Office : if committed upon a
mail, or in respect of a chattel, money, &c., sent by post, the
venue may be either as above, or in any county through any
part of which the mail, chattel, &c., has passed in due course
of conveyance by post (x).
iii. Either where the offence was committed, or in any
adjoining county : —
Where the offence was committed within the county of a
city or town corporate (except London, Westminster, or South-
wark), e.g., Berwick, Newcastle, Bristol, Chester, Exeter, and
Hull, it may be tried in the next adjoining county (y).
Where a felony or misdemeanour is committed on the
boundarv of two or more counties, or within five hundred
(p) 3 & 4 Geo. V. c. 27. s. 14.
(q) 24 & 26 Vict. c. 100, s. 57.
(r) 24 A 25 Vict. c. 100, s. 9.
(») 6 & 7 Geo. V. c. 50, s. 39, sub-s. 1.
(t) Ibid. 8. 39, 8ub-8. 2.
(u) Ibid. a. 39, sub-s. 3.
(10) 1 & 2 Geo. V. c. 6, s. 8.
(x) 8 Edw. Vn. c. 48, s. 72.
(y) 38 Geo. HI. c. 52; 51 Geo. HI. c. 100; 14 & 15 Vict. c. 65. 8g. 19. 23. 24 ;
iOO. 8. 23.
324 PLACE OF TRIAL.
yards of the boundary, or is begun in one county and com-
pleted in another, the venue may be laid in either county [z).
iv. In any place where the offender is, or is brought: —
Offences against the customs on the high seas, upon the
offender coming to land [a).
Forcing on shore, or leaving behind in any place out of the
King's dominions any of the crew (6).
Offences against the Foreign Enlistment Act, 1870 (c).
V. In either county, where the offence was committed partly
in one, partly in another: —
Uttering counterfeit coin in one county and within, ten days
uttering in another; or two persons acting in concert in two
or more counties (d).
Libels and threatening letters, which may be tried either in
the county from which sent or where received (e).
And, generally, where the offence is begun in one county
and completed in another, the venue may be laid in either
county (/)• ^
vi. In felonies or misdemeanours committed ujjon any
person, or on, or in respect of, any property, in or upon any
coach, cart, or other carriage employed in any journey, or
any vessel employed in river, canal, or inland navigation, the
venue may be laid in any county through which the coach, or
through which or between which the vessel passed in the
journey (g).
vii. In the case of felonies wholly committed within
England or Ireland, accessories before the fact (who, however,
may now be tried in all respects as if principal felons (/i) ),
and accessories after the fact, may be tried by any Court
which has jurisdiction to try the principal felony or any
felonies committed in any county in which the act by reason
of which such person is an accessory has been committed. In
(z) 7 Geo. IV. c. 64, s. 12.
(a) 39 & 40 Vict. c. 36, s. 229.
(b) -57 & 58 Vict. c. 60, s. 684.'
(c) 33 & 34 Vict. c. 90, ss. 16, 17.
(d) 24 & 25 Vict. c. 99, s. 28.
(e) Archbold, 37.
if) 7 Geo. IV. c. 64, s. 12: v. Archbold, 36
(g) 7 Geo. IV. c. 64, s. 13.
{h) v. p. 27,
PLACE OF TRIAL.
325
other cases (i.e., when not wholly committed within England
or Ireland), by any Court having jurisdiction to try the prin-
cipal felony or any felonies committed in any county in which
the accessory is apprehended or is in custody (i).
viii. Where any person being feloniously stricken, poisoned,
or otherwise hurt upon the sea, or at any place out of England
and Ireland, dies in England or Ireland, or vice versa, the
offence ma}- be dealt with in any county in England or
Ireland in which the death, or the stroke, poisoning, or hurt
happened (k).
ix. In indictments for being at large before the expiration
of a sentence of penal servitude, the venue may be laid either
in the county where the defendant is apprehended or in that
in which he was sentenced (I).
X. As to offences committed abroad : —
With one possible exception created by the Merchant Ship-
ping Act, 1894 (m), no crime committed by a foreigner on
foreign land is punishable in an English Court.
At common law crimes committed by British subjects in
lands beyond the realm were not punishable in English Courts,
but to this rule several exceptions have been made by various
statutes. Of these we have already, in this chapter, noticed
offences against the Dockyards Protection Act, 1772, unlawful
oaths, bigamy, murder and manslaughter on land by a British
subject, perjury and offences against the Foreign Enlistment
Act, 1870. Other exceptions are treason and offences by
Crown officials, triable in the King's Bench Division (n), and
offences against the Official Secrets Act, 1911, triable in the
King's Bench Division or the Central Criminal Court (o).
(»■) 24 & 25 Vict. c. 94, s. 7.
ik) 24 & 25 Vict. c. 100, s. 10.
(I) 5 Geo. IV. c. 84, s. 22 ; 20 & 21 Viet. c. 3, s. 3.
(m) V. p. 826. It would appear, however, to be another exception that a
foreigner employed as an English Consul or ofiBcial abroad and committing an
offence in the execution of his office can be tried in this country under 42
Geo. III. c. 85, s. 1.
(n) 35 Hen. VIII. c. 2 ; 11 Will. III. c. 12 ; 42 Geo. III. c. 85, s. 1 ; v. p. 277
(o) 1 & 2 Geo V c. 28. 8. 10.
326 PLACE OF TRIAL.
xi. As to offences at sea: —
The ancient Court of the Lord High Admiral had juris-
diction for the trial of offences at sea or on board ships lying
in the rivers below bridge, (/?). By the Act 28 Hen. VIII.
c. 15, the King was authorised to issue commissions under the
Great Seal to the admiral and his deputies to try certain
offences [q) committed at sea or within the jurisdiction of the
admiral in the same way as if committed upon the land. In
practice this jurisdiction was exercised by the Judge of the
Admiralty Court.
The Central Criminal Court and the justices of assize and
commissioners of Oyer and Terminer and General Gaol
Delivery have now the power to try all offences committed
on the high seas or within the jurisdiction of the Admiralty,
although the power still exists of issuing a special commission
under the Act of Hen. YIII. (r).
The jurisdiction of the Admiralty in the case of British
ships and all persons on board them extends not only over
the high seas, but also on foreign rivers as far as great ships
go; although the municipal authorities of the foreign country
may have concurrent jurisdiction (5). In the case of foreign
ships and persons other than British subjects the jurisdiction
extends over the territorial waters of His Majesty's Dominions,
which include the high seas to a distance of one marine league
from low-water mark (t).
By the Merchant Shipping Act, 1894, the jurisdiction of
the Admiralty also extends over any offence against property
or person committed, either ashore or afloat, by any person,
British subject or foreigner, who is employed as a master.
fp) 13 Rich. n. c. 5 ; 16 Rich. II. c. 3.
(q) Treasons, felonies, robberies, murders, and conspiracies; extended by 39
Geo. III. c. 37 to all offences.
(r) 4 & 5 Will. IV. c. 36, s. 22 ; 7 & 8 Vict. c. 2. The Courts in the Colonies
have also cognisance of offences committed within the Admiralty jurisdiction,
11 & 12 Will. III. c. 7; 46 Geo. III. c. 54; 12 & 13 Vict. c. 96; 41 & 42 Vict,
c. 73; 57 & 58 Vict. c. 60, s. 686.
(s) R. V. Anderson, [1868] L. R. 1 C. C. R. 161; 38 L. J. M. C. 12; R. v.
Carr, [1882] 10 Q. B. D. 76; 52 L. J. M. C. 12.
(t) 41 & 42 Vict. c. 73.
PLACE OF TRIAL. 327
seaman, or apprentice in a British ship, or was so employed
within three months before the offence (u).
All indictable offences mentioned in the Criminal Law
Consolidation Acts, 1861, if committed within the jurisdiction
of the Admiralty, are subject to the same punishments as if
committed on land, and may be tried in any county or place
in England or Ireland in which the offender shall be appre-
hended or be in custody, in the same manner as if the offence-
had been committed in that county or place (w).
By a later statute it is also provided (x) that where any
person is charged with having committed any offence on board
a British ship on the high seas, and he is found within the
jurisdiction of any Court in His Majesty's Dominions which
would have had cognisance of the offence if committed within
its ordinary jurisdiction, that Court shall have jurisdiction to
try him. This provision includes both British subjects and
foreigners, but as regards British subjects the section also
extends to one who commits a criminal offence in a foreign
port or harbour, or on board any foreign ship to which he
may not belong.
(u) 57 & 58 Vict. c. 60, s. 687.
(to) 24 & 25 Vict. c. 96, s. 115; c. 97, s. 72; c. 98, s. 50; c. 99, s. 36; c. 100,
8. 68.
(x) 57 & 58 Vict. c. 60, s. 686. In view of this statute the provisions in the
Criminal Consolidation Acts seem no longer necessary; Archbold, 35.
CHAPTER VI.
THE GRAND JURY.
Phocess after a True Bill is Found. Time of Trial.
The bill of indictment (as yet it is only a " bill," and is not
correctly termed an indictment until found true by the grand
jury) having been drawn up, the next step is to submit it to
the grand jury.
Who are the grand jury? The sheriff of every county is
required to return to every sessions of the peace, and every
commission of oyer and terminer and of gaol delivery, twenty-
four good and loyal men of the county, " to enquire into,
present, do and execute all those things which, on the part of
our Lord the King, shall then be commanded them." Grand
jurors at the assizes, or at the borough sessions (at the latter
they must be burgesses, 45 & 46 Vict. c. 50, s. 18^), do not
require any qualification by estate ; at the county sessions they
must have the qualification required of petty jurors (a). At
the assizes, the grand jury usually consists of gentlemen of
good standing in the county.
After the Court has been opened in the usual way by the
crier making proclamation, the names of those summoned on
the grand jury are called. As many as appear upon this
panel are sworn. They must number twelve at least, but not
more than twenty-three, so that twelve may be a majority (6).
The person presiding in the Court — the Judge at the assizes,
the chairman at the county sessions, the recorder at the
borough sessions — then charge8_the_grand.4ury. The object
of this charge is to assist the grand jury in coming to a right
(a) 6 Geo. IV. c. 50, s. 1. (b) 2 Burr. 1088.
THE GRAND JURY. 329
conclusion, by directing their attention to points in the
various cases about* to be considered by them which require
special attention.
The charge having been delivered, the grand jury withdraw
to their own room, having received the bills of indictment.
The witnesses whose names are indorsed on each bill are sworn ^
as they come to be examined in the grand jury room, the oath
being administered by the foreman, who, as each witness is
examined, should write his initials opposite to the name on
the back of the bill (c). Only the witnesses for the prose-
cution are examined, as the function of the grand jury is
merely to enquire whether there is sufficient ground to put
the accused on his trial, and, notwithstanding the provision
in the Criminal Evidence Act, 1898, that the defendant is a
competent witness for the defence at every stage of the pro-
ceedings, he is not entitled to give evidence before the grand
jury {d).
If the majority of them (which majority must consist of
twelve at least) think that the evidence adduced makes out a
sufficient case, the words " a true bill " are indorsed on the
back of the bill: if they are of the opposite opinion, the words
" no true bill " are so indorsed, and in this case the bill is said
to be ignored or thrown out. They may find a true bill as to
the charge in one count and ignore that in another; or as to
one defendant and not as to another; but they cannot, like a
petty jury, return a special or conditional finding, or select
part of a count as true and reject the other part. Nor can
they find that the prisoner was insane when he committed the
crime (e). When one or more bills are found, some of the
grand jury come into Court and hand the bills to the clerk of
arraigns, or clerk of the peace, who states to the Court the
name of each prisoner, the charge, and the indorsement of
the grand jury. They then retire and consider other bills,
until all are disposed of; after which they are discharged by
the Judge, chairman, or recorder, presiding.
(c) Indictments Act, 1915. rule 1 (5).
(d) R. V. Rhodes, [1899] 1 Q. B. 77; fift L. J. Q. B. 83.
(e) R. V. Hodges, [1838] 8 C. & P. 195.
330 THE GRAND JURY.
If the bill is thrown out it may again be preferred to the
grand jury during the same assizes or sessions, or it may be
jtreferred and found at subsequent assizes or sessions, of course
within the time limited for the prosecution if there be any
time so limited (/). We may anticipate by reminding thei
reader that this cannot be done in respect of the same offence i
if the petty jury have returned a verdict (g).
We have pursued the ordinary method of criminal procedure
by supposing that, in the first instance, there has been an
examination before the magistrate. But this need not always
take place. With certain exceptions, a person may prefer a
bill of indictment against another before the grand jury
without any previous enquiry into the truth of the accusation
before a magistrate, and even where the magistrate may have
refused to commit for trial. This general right was, at one
time, a universal right, and was often the engine of tyranny
and abuse. It is easy to conceive how an innocent man's
character might be injured, or at least how he might be put
to great expense and inconvenience in defending himself
against a charge founded on a true bill returned by the grand
jury, who have heard only the evidence for the prosecution.
A substantial check was put upon this grievance by the
Vexatious Indictments Act (h). Itjproyidesjthat no bill of
indictment for any of the offences enumerateiL-bfilQ-w sh all be
presented to or found by a grand jury unless_.x)iia„.of the
following steps has been taken : (i) The prosecutor or other
person presenting such indictment has been bound by recog-
nisance to prosecute or give evidence against the accused; or
(ii) the accused has been committed to or detained in custody,
or has been bound by recognisance to appear to answer an
indictment for such offence; or (iii) unless the indictment has
been preferred by the direction, or with the consent in writing
of a Judge of the High Court, or the Attorney- or Solicitor-
General; or (iv) in case of an indictment for perjury, by
the direction of any Court, Judge, or public functionary
authorised to direct a prosecution for perjury.
(/) Archbold, 77. (g) v. p. 411.
(h) 22 & 23 Vict. c. 17, s. 1.
THE GRAND JURY. 331
The offences referred to are : Conspiracy, obtaining money
or property by false pretences, keeping a gambling-house,
keeping a disorderly house, indecent assault; and now, by the
Debtors Act, 1869, any misdemeanour under the second
part of that Act and the Bankruptcy Act, 1914 (i); also by
the Newspaper Libel and Registration Act, 1881 (k), libel and
offences against that Act ; misdemeanours under the Criminal
Law Amendment Act, 1885 (Z) ; indictable offences under the
Merchandise Marks Act, 1887 (m) ; offences under the Pre-
vention of Corruption Act, 1906 (n) ; and offences against
the Incest Act, 1908 (o) ; misdemeanours against the
second part of the Children Act, 1908 (p) ; and perjury,
subornation of perjury, and other offences punishable under
the Perjury Act, 1911 (r). The object of this salutary
provision was furthered by a subsequent statute, which, in
the event of an acquittal, empowers the Court trying an
indictment for any such offences (unless the defendant has
been detained in custody or bound over to answer the indict-
ment) to order the prosecutor to pay the whole or any part
of the costs incurred in or about the defence (s). The
Vexatious Indictments Act does not, however, apply to cases
where the Court itself has given leave for the indictment to be
preferred (t).
If a magistrate refuses to commit for trial a person charged
with any offence to which the Vexatious Indictments Act
applies, the prosecutor is entitled to require him to take his
recognisance to prosecute the person accused, and the
magistrate must transmit the recognisance with the informa-
tion and depositions to the Court in which the indictment
(t) 32 & 33 Vict. c. 62, s. 18; 4 & 6 Geo. V. c. 59, s. 164.
(fc) 44 & 46 Vict. c. 60, s. 6.
(2) 48 & 49 Vict. c. 69, s. 17. As to misdemeanours under this Act, v. p. 157
et teq.
(m) 50 &, 51 Vict. c. 28, s. 13.
(n) 6 Edw. VII. c. 67, s. 26.
(o) 8 Edw. VII. c. 46, s. 4, sub-s. In this and in the last case the sanction
of the Attorney-General is also required, unless, in cases within the Incest Act,
1908, the prosecution is commenced by the Director of Public Prosecutions.
(p) 8 Edw. VII. c. 67, s. 25.
(r) 1 & 2 Geo. V. c. 6, s. 11.
(s) 8 Edw. VII. c. 15, 8. 6, sub-s. 2.
(t) 30 & 31 Vict. c. 36, s. 2. 7
332 THE GRAND JURY.
ought to be preferred (u), and the indictment may then be
preferred in spite of the magistrate's refusal to commit; this,
however, does not apply where the magistrate has refused
to grant a summons (w).
Subsequent process. — The grand jury having found a true
bill, the next point to be considered is the process (the writs
or judicial means) issued, or made to proceed, to compel the
attendance of the accused to answer the charge. Of course
this is not required if he is in custody, or if, having been
bound by recognisance to appear and take his trial, he
surrenders to his bail; in such case he may be tried as soon
as is convenient. If he is in custody of another Court for
some other offence, the course is to remove him by a writ of
habeas corpus, and bring him up to plead. But if he is
already in the custody of the same Court, there is no need
for such writ (a).
If, however, an indictment has been found in the absence
of the accused, and he is not in custody and has not been
bound over to appear at the assizes or sessions, then process
must issue to bring him into Court.
Process in ordinary cases is now regulated by 11 & 12
Yict. c. 42, s. 3. When an indictment has been found at
the assizes or sessions against some person who is at large,
the clerk of indictments, or clerk of the peace, after such
assizes or sessions, upon the application of the prosecutor
or any person on his behalf, will grant a certificate of such
indictment having been found. Upon production of this
certificate to any justice of the jurisdiction where the offence
is alleged to have been committed, or in which the accused
resides, or is, or is suspected of residing or being, such
justice must issue his warrant to apprehend the person so
indicted and bring him before some justice of the jurisdiction,
who, upon proof by oath that the person present is the person
indicted, will, without further enquiry or examination, commit
(«) 22 & 23 Vict. c. 17, s. 2.
iw) Ex parte Reid, [1885] 49 J. P. 600.
(a) 30 & 31 Vict. c. 35, s. 10.
THE GRAND JXJRT. 333
him for trial or admit him to bail. Provision is also made
for the backing of such warrant if the accused is out of the
above jurisdiction (6). If he is already in prison, the justice
must issue his warrant to the gaoler, ordering him to detain
him until removed by habeas corpus or otherwise in due
course of law (c).
Another mode of proceeding, though one not usually
adopted unless the case is urgent, is for the Court before
whom the indictment is found to issue a bench warrant for
the arrest of the accused, and to bring him immediately
before such Court. At the assizes it is signed by the Judge,
at sessions by two justices of the peace. It has been said,
however, that this process only applies to cases of mis-
demeanour {d). Any Judge of the King's Bench Division,
upon affidavit or certificate that an indictment has been
found, or information filed in that Court against any person
for a misdemeanour, may issue his warrant for apprehending
and holding the accused to bail, and in default of bail he
may commit him to prison (e).
Outlairry. — If the accused person does not appear to plead
to the indictment and summary ]>rocess proves ineffectual to
secure his apprehension, process of outlawry is issued and
after the issue of certain writs and proclamations judgment
of outlawry may be pronounced (/). An outlawry in treason
and felony amounts to a conviction upon the indictment, but
in cases of misdemeanour it amounts merely to a conviction
for the contempt in not appearing. In any case, however, the
defendant incurs forfeiture of his goods, and in treason or
felony of his lands also, the Forfeiture Act, 1870, not
applying to forfeiture on outlawry (g). Proceedings in
outlawry are rare and may almost be said to be extinct (h).
(b) 11 & 12 Vict. c. 42, s. 11.
(c) Ibid. 8. 3.
(d) Archbold, 84.
(e) 48 Geo. III. c. 58, s. 1.
(/) Ree Crown Office Rules, 1906, 88—101.
(g) V. p. 7.
(h) Archbold, 86.
334 THE GRAND JURY.
Time of Trial. — Indictments for felony are tried at the same
assizes or sessions at which they are found by the grand jury.
The trial may, however, be postponed to the next assizes or
sessions, on the application of either the prosecutor or the
defendant. But he must satisfy the Court by affidavit that
there is sufficient cause for the postponement, such as the
illness or unavoidable absence of a material witness. The
defendant will be detained in custody till the trial, or
admitted to bail, as the Court thinks fit [i).
In misdemeanours , formerly when the defendant was not
in custody it was the practice not to try him at the same
assizes or sessions at which he pleaded not guilty to the
indictment, but to require him to give security to appear at
the next assizes or sessions. But now it is provided generally
that — No person prosecuted is entitled to traverse or postpone
the trial of any indictment found against him, provided that,
if the Court be of opinion that the defendant ought to be
allowed a further time either to prepare for his defence or
otherwise, it may adjourn his trial to the next subsequent
session, upon such terms as to bail or otherwise as may seem
proper (/<;).
(t) As to postponement when an indictment has been amended, v. p. 312.
(k) 14 & 15 Vict. c. 100, s*. 27.
CHAPTER yil.
CERTIORARI.
We have already ascertained where the trial of an offence
will, in the regular course of things, take place. But any
criminal proceeding may be removed by a writ of certiorari
into the King's Bench Division, the supreme Court of
criminal jurisdiction. This writ is directed to the inferior
Court, requiring it to return the records of an indictment, or
inquisition, depending before it, so that the party may have
a trial in the King's Bench Division or before such justices
as the King shall assign to hear and determine the cause.
The result is that the jurisdiction of the inferior Court is
superseded, and all subsequent proceedings there are illegal,
unless the King's Bench remands the record back to the
inferior Court for frial. The proper time to apply for this
writ is before issue is joined on the indictment, or at least
before the jury are sworn, though it may be allowed at a
later stage {!).
The writ is demandable as of right by the ('rown, and
issues as of course when the Attorney-General or other
officer of the Crown applies for it (m). Formerly, it
was granted almost of course to private prosecutors; but
now it is provided that no indictment (except indictments
against bodies corporate not authorised to appear by attorney
in the Court in which the indictment is preferred) shall be
(I) Archbold. 112. Proceedings may be removed into the King's Bench Divi-
sion from the Crown Court of Assize, even after judgment, without a certiorari
by an order for removal, which is obtained in the same way as certiorari; R. v.
Dudley, U Q. B. D. 273, 560; R. v. Chambers, W. N. 1919, p. 95.
(m) R. V. Eaton, [1799] 2 T. R. 89.
336 CERTIORARI.
removed into the King's Bench Division or Central Criminal
Court by writ of certiorari either at the instance of prosecutor
or of defendant (except the Attorney-General on behalf of
the Crown), unless it be made to appear to the Court from
which the writ is to issue, (i) that a fair and impartial trial
of the case cannot be had in the Court below; or (ii) that
some question of law of more than usual difficulty and
importance is likely to arise upon the trial; or (iii) that it
may be necessary to have a view of premises [in " some other
county" (n)] in respect whereof the indictment is preferred;
or (iv) that a special jury may be required to ensure a
satisfactory trial (o). But an application by the defendant
will not be granted for the removal of an indictment for
perjury or other heinous misdemeanours when the delay
tends to defeat the prosecution, nor usually for murder or a
serious felony (p). Nor in general will it be removed from
a Court of competent jurisdiction where one of the Judges of
the High Court presides {q), unless great local prejudice,
likely to lead to an unfair trial, is shown to exist.
The mode of obtaining the writ by private prosecutors or
by defendants as settled by the Crown Office Rules, 1906, is
the following : —
Every application for a writ of certiorari to remove an
indictment must, during the sittings, be made to a Divisional
Court by motion for an order nisi to show cause, and in the
vacation to a Judge at Chambers, for a summons to show
cause; but where, from special circumstances, the Court or a
Judge may be of opinion that the writ should issue forthwith,
the order may be made absolute in the first instance. Every
application must be supported by an affidavit showing the
ground upon which it is made. Upon the return of the order
nisi, or of the summons, as the case may be, the Court or
Jiidge will, if sufficient cause be shown, order a writ of
certiorari to issue. No writ of certiorari will be allowed
in) R. V. Martiji, L. R. 1 C. C. R. 378; 41 L. J. M. C. 113.
(o) Crown Office Rules, 1906, r. 13.
(p) Archbold, 112.
iq) Ibid.
CEETIOEARI. 337
unless the person at whose instance it has been issued enters
into a recognisance with sufficient sureties, by which he
undertakes to proceed forthwith to trial of the indictment,
and to pay the costs of the opposite party subsequent to the
removal of the indictment, in case such opposite party should
succeed at the trial.
Provision is made by statute (r) for the trial at the Central
Criminal Court of indictments or inquisitions for felonies
or misdemeanours committed out of the jurisdiction of the
Central Criminal Court, which have been removed by
certiorari into the King's Bench Division; and for the
removal of any such indictment or inquisition by order of
the King's Bench Division directly into the Central Criminal
Court from an inferior Court.
If the indictment is not tried at the Central Criminal Court
it is tried at the sittings of the High Court in London and
Middlesex or the Nisi Prius Court at the assizes for the
county in which the indictment was found (s). If it is
removed from the Central Criminal Court to the King's Bench
Division the writ must specify the county in which it is to
be tried (t).
Although the writ of certiorari is usually issued out of the
King's Bench Division, it may also be issued by the Judges
of the High Court who are on the commission of the Central
* Criminal Court and by the Recorder of London, to remove
from Courts of Quarter Sessions within the Central Criminal
Court district indictments found in such Courts for offences
cognisable by the Central Criminal Court. It may also
be issued by a Judge of assize to remove indictments from
Quarter Sessions for any county within his commission for
offences which they have no jurisdiction to try (u).
(r) 19 & 20 Vict. c. 16, ss. 1, 3.
(») As to trial at bar, v. p. 277.
(t) Archbold, 119.
(u) Archbold, 108. As to the issue of certiorari by the Hoase cf Lords, v. p.
275.
C.L. 22
CHAPTEll VIII.
AERAIGNMENT. CONFESSION. MOTION TO QUASH
INDICTMENT. DEMURRER. PLEAS.
ARRAIGNMENT.
The arraignment, or requiring the prisoner to answer to
the charge of an indictable offence, consists of three parts : —
(a) Calling the prisoner to the bar by name.
(b) Reading the indictment to him.
(c) Asking him whether he is guilty or not of the offence
charged.
The prisoner must be brought to the bar without irons,
or any manner of shackles or bonds, unless there is evident
danger of escape. In felonies he must be placed at the bar
of the Court, though in misdemeanours this does not seem
necessary (a). If several defendants are charged in the same
indictment, they ought all to be arraigned at the same time.
It is usual to arraign several prisoners immediately in
succession, and then to proceed to the trial of one, the rest
being put down for the time.
The indictment having been read, or its effect shortly
stated, to the prisoner, the clerk of arraigns, or clerk of the
peace, or other proper officer of the Court, demands of him,
" How say you, John Styles, are you guilty or not guilty? "
One of three courses will then be taken by the prisoner. He
will either
(i) Stand mute, (ii) Confess, or say that he is guilty,
(iii) Plead.
(a) R. V. St. George, [1840] 9 C. & P. 483.
ARRAIGNMENT. 339
Standing mute, that is, not answering at all, or answering
irrelevantly. In former times, if, in cases of felony, this
standing mute was obstinate, the sentence of peine forte et
dure followed, and the prisoner was pressed to death (6) ; in
treason and misdemeanoui' the standing mute was equal to a
conviction. Later, in every case it had the force of a con-
viction (c). If the prisoner was dumb ex visitatione Dei, the
trial proceeded as if he had pleaded not guilty. But now, if
the prisoner stands mute of malice, or will not answer directly
to the indictment or information, the Court may order the
proper officer to enter a plea of not guilty on behalf of such
person; and the plea so entered has the same force and
effect as if the person had actually so pleaded {d). If it is
doubtful whether the muteness be of malice or ex visitatione
Dei, a jury of any twelve persons present may be sworn to
discover this. If they find him mute of malice, 7 & 8
Geo. IV. c. 28 will apply; if mute ex visitatione Dei, the
Court will use such means as may be sufficient to enable him
to understand the charge and make his answer; and if this
be found impracticable, a plea of not guilty will be entered
and the trial proceed.
In the event of a doubt arising as to the sanity of a
prisoner at the time of his arraignment, a jury will be sworn
to ascertain the state of his mind. If they find him insane,
so that he cannot plead to the indictment, it is lawful for
the Court to order him to be kept in custody until His
Majesty's pleasure be known (e). If he does not seem able
to distinguish between a plea of guilty and not guilty, this
is enough to justify the jury in finding him of unsound mind.
So also if he has not sufficient intellect to comprehend the
nature or course of proceedings, so as to make a proper
(lofeiice, and challenge jurors, and the like (/) ; or if by
(b) V. Reeve's Hist, of Eng. Law, ii. 48, 612. The refusal to plead was
usually to avoid the forfeiture which followed upon a conviction.
(c) 12 Geo. III. c. 20.
(d) 7 & 8 Geo. IV. c. 28, e. 2.
(e) 39 & 40 Geo. III. c. 94, s. 2.
(/) R. V. Pritchard. [1836] 7 C. & P. 303; R. v. Berry, [1876] 1 Q. B. D.
447; 45 L. J. M. C. 123s 13 Cox, 189.
340 ARRAIGNMENT. CONFESSION.
reason of his defective faculties it is impoesible to com-
municate to him the details of the trial (g).
We have noticed that no trial for felony can be had except
in the presence of the prisoner (h). In cases of misdemeanour,
after the defendant has pleaded, the trial may go on, though
he is absent, as from illness (i). In indictments or informa-
tions for misdemeanour in the King's Bench, the accused
may appear by attorney.
The trial must, as a rule, be perfectly open to the public
so far as room is available for them, but it is not unusual
for judges in certain cases to direct or advise women to leave
the Court, In prosecutions for incest, however, all proceed-
ing must be held in camera (k). Also in any case where a
child or young person under sixteen years of age is a witness
in any proceedings in relation to an offence against decency
or morality, the Court may direct that all persons not being
members or officers of the Court or parties to the case, or
their solicitors or counsel, or persons otherwise directly
concerned in the case, or the representatives of a newspaper
or news agency, be excluded from the Court while the
evidence of the child or young person is being taken (l).
And no child under fourteen years of age is permitted to be
in Court during the trial of any person charged with an
offence, except when he is required to give evidence {tn).
CONFESSION.
If the accused makes a simple, unqualified confession that
he is guilty of the offence charged in the indictment and
adheres to this confession the Court has nothing to do but
({/) R. V. Stafford Prison, Governor of, [1909] 2 K. B. 81 ; 78 L. J. K. B. 629;
where the prisoner, a deaf mute, was unable to read or write. Insanity at the
time of the commission of the crime is quite another consideration, and is
treated of elsewhere, v. p. 17.
(h) V. p. 7. But in a case where a prisoner charged with felony was so
violent as to render a trial in his presence practically impossible. Wills, J.,
ordered him to be removed, and he was tried and convicted in his absence, R.
V. Berry, [1897] 104 L. T. Jo., p. 110.
(t) Archbold, 169.
(k) 8 Edw. VII. c. 45, s. 5.
(l) 8 Edw. VII. c. 67, s. 114.
im) 8 Edw. VII, c. 67, s. 115. .
CONFESSIOX. 341
to award judgment, generally hearing the facts of the case
from the prosecuting counsel, and also any statement which
the prisoner or his counsel may wish to make. But the Court
usually shows reluctance to accept and record such confession
in cases involving capital punishment; often it advises the
prisoner to retract the confession and plead not guilty to the
indictment. When the prisoner has pleaded guilty, and
sentence has been passed, he cannot retract his plea and plead
not guilty (n). On the other hand, a prisoner who has
pleaded not guilty may, by leave of the Court, on the advice
of his counsel or otherwise, withdraw the plea and plead
guilty.
By section 39 (1) of the Criminal Justice Administration
Act, 1914 (o), when a prisoner is arraigned on indictment for
any offence and can upon the indictment be convicted of some
other offence, he may plead not guilty of the offence charged,
but guilty of such other offence.
A free and voluntary confession by the defendant before
the magistrate on the preliminary examination, if duly made
and satisfactorily proved, is sufficient to warrant a conviction
without further corroboration, but, of course, the whole of
the confession must be taken into account, the part favourable
to the prisoner as well as that against him. This confession,
as also any free or voluntary confession made to any other
person, is merely evidence (though if the fact of the con-
fession be undisputed, no other evidence may be needed) ;
and this is to be widely distinguished from the confession
at the trial or plea of guilty.
In connection with this subject we must advert to the
case of one of several co-defendants turning King's evidence.
When sufficient evidence of a felony cannot be obtained from
other quarters, and when it is perceived that the testimony
of one of the accused would supply this defect, hope is some-
times held out to the latter that if he will give evidence
so as to bring the others to justice he himself will escape
punishment. The approval of the presiding Judge will have
in) R. v. Sell, [1840] 9 C. & P. 346,
(o) 4 & 5 Geo. V. c. 58.
342 MOTION TO QUASH INDICTMENT. DEMUBREE.
to be obtained (p). Even during the trial it sometimes
happens that the counsel for the prosecution, with the consent
of the Court, when such a course is necessary to secure a con-
viction, takes one of the defendants out of the dock and puts
him in the witness-box, such prisoner obtaining a verdict of
acquittal (q). But, as we shall see hereafter more fully,
the evidence of an accomplice is to be regarded with suspicion,
and requires corroboration (r).
MOTION TO QUASH INDICTMENT.
If an indictment is defective the defendant may move to
quash it. If the defect is merely formal the motion to quash
should be made before plea pleaded, and the defect may
then be amended by the Court (s). If the defect is a
substantial one, which cannot be met by amendment, as, e.g.,
where an indictment has been found without jurisdiction,
the motion to quash may be made after plea pleaded (t).
If the indictment is clearly bad the Court may quash it,
but if there is any doubt, especially in serious cases, the Court
will refuse to quash it and will leave the defendant to his
remedy by demurrer or motion in arrest of judgment (w).
DEMURRER.
A demurrer is an objection on the part of the defendant
who admits the facts alleged in the indictment to be true,
but insists that they do not in point of law amount to the
crime with which he is charged. A demurrer should be made
before plea, but the Court may allow a plea to be withdrawn
in order that the defendant may demur (iv). A demurrer
(p) /?. V. Rudd, [1775] 1 Leach, 115.
(q) R. V. Rowland, [1826] Ey. & M. 401.
(r) V. p. 376.
(j?) See s. 5, sub-s. 1 of the Indictments Act, 1915, ante, p. 312.
(t) Archbold, 100; and see R. v. Thompson, [1914] 2 K. B. 99; 83 L. J. K. B.
643 ; 9 Cr. App. R. 252.
(m) R. v. Lynch, [1903] 1 K. B. 446; 72 L. J. K. B. 167.
{w) Archbold, 149.
DEMUHREn. 343
must be written or printed and filed, and is in the following
form (x) : —
The King v. A.B.
Court of Trial.
A.B. says that the indictment is not sufficient in law and
that he is not bound by law to answer it.
Issue is then joined by the Crown in the following form: —
The King v. A.B.
Court of Trial.
H.A. (the Clerk of the Court) joins issue on behalf of the"
King.
If judgment is given against the defendant in felonies the
judgment is final; in misdemeanours it is final unless the
Court should afterwards permit the defendant to plead
over (y).
Demurrers in criminal cases seldom occur in practice. In
cases of defects in substance apparent on the face of the
indictment, generally the defendant may, instead of de-
murring, plead not guilty, and then, if convicted, move in
arrest of judgment or appeal. Thus he has a double chance
of escaping, first on the facts of the case, then on the point
of law. But this course cannot be taken when the defect in
the indictment is cured by verdict (2). •
Formerly there was another kind of demurrer besides the
general demurrer to which we have been referring, namely,
a special demurrer, founded on some formal defect in the in-
dictment. Such demurrers are now obsolete in view of the
wide powers of amendment possessed by the Court.
(x) Tbe form of all pleas, replications, and other pleadings is governed by
the Indictments Act, 1915; see s. 8, sub-s. 3.
(y) This seems to be the state of the law as settled in R. v. Faderm an, 11850'}
1 Den. 569; 3 C. & K. 353; though some still contend that in felonies, after
judgment against the defendant, he may still plead not guilty; v. Archbold, 150.
(2) V. p. 413.
344 PLEAS.
PLEAS.
If the defendant neither stands mute nor confesses nor
objects to the indictment, he pleads — that.iv h^-alleges^ome
defensi^vB-jnatter. The following are the names of the various
pleas which may be pleaded : —
(i) Plea to the jurisdiction; (ii) special pleas in bar:
{a) autrefois acquit, (b) autrefois convict, (c) pardon :
i(iii) general issue of not guilty.
It is not to be understood that a defendant may in turn
go through the whole of these pleas, resorting to the
«ubsequent plea as a previous one fails. The rule at common
law is that not more than one plea can be pleaded to an
indictment for misdemeanour or a criminal information,
though the Court may allow the defendant to withdraw a
special plea and plead not guilty [a). But in felonies, if the
accused plead specially in bar, he may and, in strictness,
should at the same tivie plead over to the felony — that is,
plead the general issue of not guilty (6).
i. Plea to the jtir is diction. — When an indictment is taken
before a Court which has no cognisance of the offence, the
defendant may plead to the jurisdiction, without answering
at all to the crime alleged. This want of jurisdiction may
arise either from the fact that the offence was not committed
within the district of the jurisdiction — for example, if a
person be indicted in Kent for stabbing a person in Sussex;
or because the tribunal in question has not cognisance of that
class of crimes — for example, if a person be indicted at the
sessions for murder. '
But this plea is very seldom resorted to, inasmuch as relief
can be obtained in other ways. Thus the objection that the
offence was committed out of the jurisdiction may generally
be urged under the general issue, or, in certain cases, by
demurrer, or by moving in arrest of judgment, or the
(a) R. V. Gilmore, 15 Cox, 86.
(b) R. V. Cliarlesworth, [1861] 1 B. & S. 460; 31 L. J. M. C. 26; v. Archbold,
145, 155
PLEAS. 345
defendant, if convicted, may appeal. If the objection is that
the crime is not cognisable in a Court of that grade, though
committed within the local jurisdiction, the defendant may
demur, or have advantage of it under the general issue, or
the High Court, upon the indictment being removed by
certiorari, will quash it (c).
The plea to the jurisdiction must be in writing, in the
following form : —
The King r. A.B.
Court of Trial.
A.B. says that the Court ought not to take cognisance of
the indictment against him because, &c.
To this replication is made on behalf of the Crown in the
same form as to a demurrer.
ii. Special pleas in bar. — These are termed " special " to
distinguish them from the general issue; and "in bar"
because they show reason why the defendant ought not to
answer at all, nor put himself upon his trial for the crime
alleged, and thus they are distinguished from dilatory pleas
which merely raise technical objections.
All matters of excuse and justification may be given in
evidence under the general issue; therefore it is hardly ever
necessary to resort to a special plea in bar, except in the
three cases to be examined more in detail (d).
(a) Autrefois acquit. — When a person has been charged
with an offence and regularly acquitted, he cannot afterwards
be indicted for the same offence, provided that the first
indictment or charge were such that he could have been
lawfully p.nnvinfft<^ on it (e). It is against the policy of the
English law that a man should be put in peril more than
(c) Archbold, 147.
(d) In fact, the only other iDstance in which a special plea in bar seems
requisite in criminal cases is where a parish or county is indicted for not repair-
ing a road or bridge, dec, and wishes to throw the onus of repairing upon some
person or persons not bound of common right to repair it, in which case they
must plead specially the liability of the party to repair, and the reason of his
liability, Archbold, 151. As to a plea of justification in libel, v. p. 92.
(e) V. R. V. Miles, [1890] 24 Q. B. D. at p. 431 ; 59 L. J. M. C. 56; 62 L. T
572 ; 38 W. R. 334 ; 54 J. P. 549.
346 PLEAS.
once for the same offence. And tlierefore if lie is indicted
a second time, lie may plead autrefois acquit, and thus bar
the indictment. It has sometimes not been easy to determine
whether the second indictment bears such a relation to the
first that the latter is a bar to the former. The test is
whether the prisoner could upon the first indictment have
been convicted of the offence charged in the second indict-
ment; another way of stating the question is whether the
acquittal on the first charge necessarily involves an acquittal
on the second charge (/). An acquittal for murder may
therefore be pleaded in bar of an indictment for man-
slaughter, and vice versa (g). So with larceny and embezzle-
ment or obtaining by false pretences (inasmuch as upon
the indictment for larceny the defendant might have been
convicted of the embezzlement or obtaining by false pre-
tences (g) ) ; robbery, and assault with intent to rob ; felony,
and an attempt to commit the felony. But an acquittal on
a charge of murder is no bar to an indictment for arson
arising out of the same facts (h), and an acquittal for larceny
is no bar to an indiptment under section 7 of the Prevention
of Crimes Act (i) for being found in a public place with
intent to commit a felony, though the second indictment is
tried on the same evidence as the first {k). An acquittal
on an indictment charging him as principal will not bar an
indictment charging him as an accessory before or after the
fact (I). And an acquittal or conviction for assault would,
if the person assaulted afterwards died, be no answer to a
subsequent indictment for manslaughter or murder, as the
charge would be based on a new fact, viz., the death of the
person assaulted (m). Even an acquittal by a Court of
(/) R. V. Barron, [1914] 2 K. B. 570; 83 L. J. K. B. 768; 10 Cr. App. R.
81; R. V. Toms, [1916] 1 K. B. 443; 85 L. J. K. B. 396; 114 L. T. 81;
80 J. P. 165 ; 60 S. J. 122 ; 32 T. L. R. 137.
(g) Larceny Act, 1916, s. 44, sub-ss. 2, 3.
(h) R. V. Serne. 107 Cent. Crim. Ct. Sess. Pap. 418.
(i) 34 & 35 Vict. c. 112.
(k) R. V. Miles, 3 Cr. App. R. 13.
(l) Archbcld, 154.
(m) R. V. Morris, [1867] L. R. 1 C. C. R. 90. R. v. Friel, 17 Cox, 325.
PLEAS. 347
fompetent jurisdiction abroad is a bar to an indictment for
the same oft'ence before any tribunal in this country (n).
The prisoner must satisfy the Court first, that the former
indictment on which an acquittal took place was sufficient
in point of law, so that he was in jeopardy upon it (o) ; an
acquittal (or judgment for the defendant on demurrer) upon
an insufficient indictment is therefore no bar to another in-
dictment for the same offence (oo). To prove his acquittal he
may obtain a certificate thereof from the officer or his deputy
having custody of the records of the Court where the acquittal
took place (p).
(b) Autrefois convict. — A former conviction may be pleaded
in bar of a subsequent indictment for the same oft'ence, and
the same rules as in the plea of autrefois acquit generally
This and the foregoing plea should be on paper or parch-
ment and signed by counsel, but if it is pleaded verbally the
Court will allow it to be reduced to writing afterwards (r).
The following is the form of the plea of autrefois acquit
or autrefois convict : —
The King v. A.B.
Court of Trial.
A.B. says that the King ought not further to prosecute the
indictment against him because he has. been lawfully
acquitted [or convicted] of the offence charged therein.
[If the indictment be for treason or felony add also — And
as to the oft'ence of which the said A.B. now stands indicted
he says that he is not guilty.]
(n) R. V. Hutchinson, [1784] 1 Leach, 135 ; R. v. Aughet, 13 Or. App. R. 101.
(o) R. V. Drury, [1848] 3 C. & K. 19(); 18 Ij. J. M. C. 189.
(oo) R. V. Richmond, 1 C. & K. 240.
(p) 14 & 15 Vict. c. 99, 8. 13.
(q) See also pp. 173, 458, as to the effect of a certificate of dismissal, or proof
of having submitted to punishment, in cases of assault and battery under 24 &
25 Vict. c. 100, ss. 44, 45. So also as to dismissal or conviction under the Sum-
mary Jurisdiction Act, v. 42 & 43 Vict. c. 49, s. 27; R. v. Miles, [18901 24
Q. B. D. 423; 59 L. J. M. C. 56; v. post. p. 465.)
(T) Archbold, 155; ft. v. Chamberlain, [1833] 6 C. & P. 93.
348 PLEAS.
(c) Pardon. — A pardon by the Crown may be pleaded not
only in bar to the indictment (as in the case of the three
pleas just noticed), but also after verdict in arrest of judg-
ment, or, after judgment, in bar of execution. But it must
be pleaded as soon as the defendant has an opportunity of
doing so; otherwise he will be considered to have waived the
benefit of it. A pardon by statute need not, however, be
pleaded at all. The subject will find a more convenient place
hereafter [s).
iii. The general issue of not guilty. — When the prisoner
on being charged with the offence answers viva voce at the
bar " Not guilty," he is said to plead the general issue.
The consequence is that he is to be tried by a jury, or,
as it is frequently stated, he puts himself upon the country
for trial. The plea is recorded by the proper officer of the
Court, either by writing the words " po. se." (posuit se super
patriam), or at the Central Criminal Court by the word
''puts."
This is much the most common and advantageous course
for the prisoner to take; unless, indeed, he pleads guilty,
and thereby the Court is induced to take a more lenient view
of hi& case. Pleading the general issue does not necessarily
imply that the prisoner contends that he did not do the actual
deed in question, inasmuch as it does not prevent him from
urging matter in excuse or justification. Moreover, this is
practically the only way in which he can urge matter in
excuse or justification (t). Thus, on an indictment for
murder, a man cannot plead that the killing was done in his
own defence against a burglar; he must plead the general
issue — not guilty — and give the special matter in evidence.
The pleading of the general issue lays upon the prosecutor
the task of proving every material fact alleged in the in-
dictment or information (u) ; while the accused may give in
evidence anything of a defensive character.
(s) V. p. 447.
(t) Except in case of libel, when justification must be specially pleaded, v.
p 92.
(u) See 8. 8, sub-s. 1 of the Indictments Act, 1915, ante, p. 313
PLEAS . 349
Issue. — When the prisoner has pleaded not guilty, the
record is made up, both parties being brought to an issue,
and both putting themselves upon their trial by jury. The
general issue appears on the record : " And the said John
Styles forthwith being demanded concerning the premises in
the said indictment above specified and charged upon him,,
how he will acquit himself thereof, saith, that he is not guilty
thereof.^' And on the part of the prosecution the similiter
is then added : " And John Brown (the clerk of assize or
clerk of the peace), who prosecutes for our said Lord the
King in this behalf, both the like. Therefore let a jury
come," 8fc. [w).
(w) In actual practice the formal record is not made up unless it is required
for a special purpose, although, of course, an abstract of the proceedings is
always retained.
CHAPTER IX.
THE PETTY JURY.
The only modes of trial which now remain are : —
A. Trial of Peers in the House of Lords or the Court of
the Lord High Steward, of which enough has been said
already.
B. Trial by jwry (or by the country — per patriam). This
is the ordinary mode of trial, and it is this with which we
have now to deal, taking the various steps in their order.
When the prisoner has put himself upon the country the
petty jurors are called by the clerk to answer to their names.
The list which is thus called over is the panel returned by
the sheriff.
The law as to the qualification of petty jurors is contained
chiefly in two statutes, the Jury Act, 1826 (a), and the
Juries Act, 1870 (6). The qualification of common jurors
is the following : Every man between the ages of twenty-one
and sixty, residing in any county in England, who has in
his own name, or in trust for him, within the same county,
£10 by the year above reprises {i.e., deductions for annuities,
rent-charges, &c.) in lands or tenements, or in rents there-
from, in fee simple, fee tail, or for life — or lands to the value
of £20 a year held by lease for twenty-one years or longer,
or for a term of years determinable on any life or lives; or
who, being a householder, is rated or assessed to the poor-
rate or to the inhabited house duty, in Middlesex to the value
of not less than £fj0, or in any other county not less than
'a) 6 Geo. IV. c. 50. (b) 33 & 34 Vict. c. 77.
THE PETTY JURY. 351
£20; or who occupies a house containing not less than fifteen
windows — is qualified to serve on petty juries at the Royal
Courts of Justice, Strand, and at the assizes, and also at both
the grand and petty juries at the county sessions (c). Every
burgess is qualified and liable to serve on the grand and petty
juries at the borough Quarter Sessions (d).
Certain exemptions from serving on juries are enumerated
by the Juries Act, 1870, and other Acts. The following are
amongst those exempted : Peers, members of Parliament,
Judges, clergymen and ministers of religion; those actually
practising in the law as barristers, solicitors, managing
clerks, &c. ; officers of the Law Courts, and acting clerks of
the peace or their deputies; coroners, gaolers and their
subordinates, and keepers in public lunatic asylums;
physicians, surgeons, apothecaries, pharmaceutical chemists
actually practising; officers of the Navy, Army, militia, or
yeomanry, if on full pay, and all soldiers in the regular
Forces; masters of vessels employed in the buoy and light
service of the corporations ; the household servants of His
Majesty; certain persons engaged in the Civil Service, such
as officers of the Post Office, commissioners of customs, &c. :
officers of the police ; sheriff's officers ; magistrates of the
Metropolitan Police Courts, their clerks, &c. ; burgesses as
regards the sessions of the county in which their borough
is situated; justices of the peace, so far as relates to any
jury summoned to serve at any sessions of the peace, for the
jurisdiction of which they are justices; officers of the Houses
of Lords and Commons (e).
These exemptions should be claimed before the revision
of the list by the justices (/). Aliens domiciled in England
or Wales for ten years or upwards may be jurors, if other-
wise qualified (tj). Persons who have been convicted of
(c) 6 Qoo. TV. c. 50, s. 1.
(d) 45 & 46 Vict. c. 50, s. 186.
(e) 33 & 34 Vict. c. 77, a. 9.
(/) Ibid. 8. 12.
(g) Ibid. 8. 8.
352 THE PETTY JURY.
any infamous crime, unless pardoned, and outlaws, are
disqualified (h).
Jurors who have been summoned not attending, and not
giving sufficient reason for their absence, may be fined. No
person who was on the grand jury by which the bill was found
should sit upon the petty jury by which it is tried.
The prisoner or prisoners, for usually a batch of them
are brought up at the same time for this purpose, are
apprised of their right to object to or challenge any of the
jurors by the clerk of arraigns or other officer of the Court
in the following or similar terms : " Prisoners, these men
that you shall now hear called are the jurors who are to
pass between our sovereign lord the King and you upon
your respective trials (or, in a capital case, upon your life
and death); if, therefore, you, or any of you, will challenge
them, or any of them, you m,ust challenge them as they come
to the book to be sworn, and before they are sworn, and you
shall be heard." The twelve jurors are then called by the
proper officer. Challenges may be made not only on behalf
of the prisoner, but also on behalf of the Crown. They are
of two kinds : (a) For cause ; (b) Peremptory. The former
are either : —
i. To the array, when the exception is taken to the whole
panel ,
ii. To the polls, when particular individuals are objected to.
i. The challenge to the array is an objection to the whole
body of jurors returned by the sheriff, not on account of
their individual defects, but for some partiality or default in
the sheriff or his under officer who arrayed the panel. It may
be either (a) a principal challenge, founded on some manifest
partiality, as if the sheriff be the prosecutor or person injured,
or be closely connected with such person, or founded on some
error on the part of the sheriff. If the cause of challenge
is substantiated the Court will quash the array, (b) Challenge
for favour, in cases where the ground of partiality is less
(h) Ibid. s. 10. As to special jurors, v. p. 356. As to the mode of preparing
the jury lists and summoning the jurors, v. 6 Geo. IV. c. 50; 25 & 26 Vict.
c. 107 ; 33 & 34 Vict. c. 77 ; and Archbold, 203.
THE PETTY JURY. 363
apparent and direct, as when one of the parties is tenant to
the sheriff, or when the sheriff has an action for debt depend-
ing against one of the parties (i).
The challenge to the array ought to be in writing, and
must state specifically the ground of objection. The other
side, prosecution or defence, may either plead to the
challenge, traversing or denying its cause, or may demur to
it as insufficient. If it is demurred to, the Court will decide
the demurrer. If the other side pleads to the challenge, two
triers are appointed by the Court to try whether the array
is an impartial one. If they decide in favour of the challenge
the coroner is ordered to return a fresh panel.
Though the challenge to the array be determined against
the party, he may still have —
ii. A challenge to the polls — this is also either (a) principal;
or (b) for favour.
Principal challenges may be subdivided into these —
Propter honoris respectum — where a peer or lord of
Parliament is sworn on a jury for the trial of a commoner.
Propter defectum — that is, on account of some personal
objection, as alienage, infancy, old age, or a want of the
requisite qualification.
Propter affectum — where there is supposed to be a bias
or prospect of partiality, as on account of the relationship
of a juror; or where an actual partiality is manifested, or
where a juror has expressed a desire or opinion as to the
result of the trial. . •
Propter delictum — if a juror has been convicted of an
infamous crime {e.g., treason-felony, perjury, &c.) and has
not been pardoned, or has been outlawed (A-).
(i) As to challenges generally, see Archbold, 182; they are exceedingly rare in
England.
(fc) 33 & 34 Vict. c. 77, s. 10.
c.L. 23
354 THE PETTY JURY.
Challenges for favotir are made when there is reasonable
ground for suspicion (as if a fellow-servant be one party),
but there is not sufficient ground for a principal challenge
ino'pter affectum.
The challenge to the polls is generally made orally, and
must be made before the words of the oath are recited to the
juror, though often the publicity of the matter is avoided by
previous- intimation of the objection being made to the proper
officer, and in such case the juror objected to is generally not
called. The validity of a principal challenge is determined
by the Court itself; of a challenge for favour, by two jurors
who have already been sworn. But if the challenge for favour
is of one of the first two jurors, the Court appoints two
indifferent "triers" to try the matter; but they are super-
seded as soon as two are sworn on the jury. Witnesses may
be called to support or defeat the challenge, and the person
objected to may also be examined, but not asked questions
which tend to his discredit.
The Crown may order any number of persons called as
jurors to stand by, and has not to show any cause for excluding
them, until the panel has been gone through, and it appears
that there will not be left enough jurors without those ordered
to stand by (/).
So much for challenges for cause, to the number of which
there is no limit, and the rules as to which are generally alike
both in criminal and civil cases. But there is another kind
of challenge known to the criminal law alone.
Peremptory challenge .—In felonies the prisoner is allowed
to arbitrarily challenge, and so exclude, a certain number of
jurors without showing any cause at all. He cannot claim
this right in misdeTneanours ; but it is usual, on application
to the proper officer, for him to abstain from calling any name
objected to by the prosecution or defendant within reasonable
limits; and this course has been sanctioned by the Court (m).
The defendant may peremptorily challenge to the number
of thirty-five in treason, except in that treason which consists
(l) Mansell v. R., [1857] 27 L. J. M. C. 4. (m) Archbold, 185.
THE PETTY JURY, 355
of compassing the King's death by a direct attempt against
his life or person {ii). In such excepted case, in murder, and
all other felonies, the number is limited to twenty (o). If
challenges are made beyond the number allowed, those above
the number are entirely void, and the trial proceeds as if no
such extra challenge had been made (p).
The Court itself has power to amend or enlarge the panel,
where such a course is necessary [q).
If a sufficient number of jurors do not appear, or if by
means of challenges and exemptions a sufficient number of
unexceptionable jurymen do not remain, the Court may order
the sheriff to return a fresh panel immediately (r).
Except as stated below, when the jury have once been sworn
they cannot leave the box without the leave of the Court, and
then only in company with some officer of the Court. If, in
consequence of being unable at once to come to a conclusion,
they obtain leave to withdraw in order to consider their
verdict, they are kept apart from every one, under the charge
of an officer, who is sworn not to speak to them (except to
ask them whether they have agreed), or suffer any one else
to do so. By leave of the Court they may have the use of
fire, when out of Court, and reasonable refreshment, procured
at their own expense {s). Until recently, upon a trial for
any felony, the jury were not allowed to separate until the
trial was concluded, and if it was adjourned, they remained
in the custody of the sheriff or his officer. This is still the
law in cases of treason, treason-felony, or murder, but it is
now provided that upon a trial for any other felony the Court
may, if it see fit, at any time before the jury consider their
verdict, permit them to separate in the same way as upon
a trial for misdemeanour (t). If during the trial, before
Merdict is given, one of the jury dies, or is taken so ill
(n) 39 & 40 Geo. III. c. 93, which provides that the offender shall be tried in
the same manner as if charged with murder. ,
(o) fi Geo. IV. c. 50, s. 29.
(p) 7 & 8 Geo. IV. c. 28, s. 3.
iq) 6 Geo. TW . c. 50, s. 20.
<r) Archbold, 191.
(») V. 33 & 34 Vict. c. 77, s. 2a '
(t) 60 & 61 Vict, c, 18.
356 THE PETTY JURY.
that he is not able to proceed with the trial, or without
permission leaves the box (w), the jury is discharged and
a new one sworn to try the case. Of course, in such an event
the remaining eleven may, and most frequently will, be in
the new jury.
We have been hitherto referring to common juries. But
as in civil, so in criminal cases, special juries are sometimes
summoned. But this is only in misdemeanours, where the
record is in the King's Bench Division, and only by per-
mission of the Court on motion of either the prosecutor or
the defendant; and there is no power in the Court to order a
special jury for the trial of a person charged with felony {w).
The party applying for a special jury must pay the extra
fees and expenses, and he will not be allowed these fees on a
taxation of costs unless the Court certifies that it was a proper
case to be tried by a special jury. The property qualification
of these jurors is higher than that of common jurors [x).
Another exceptional form of jury was formerly sometimes
demanded : a jury de medietate linguce. Formerly in cases
of felony or misdemeanour, but not of treason, an alien
might claim his right to be tried by a jury, half of whose
number were aliens, or, at least, if not half, as many as the
town or place could furnish. But this privilege was taken
away by the Naturalization Act, 1870 [y) ; and now an alien
is tried as if he were a natural-born subject.
{«) R. V. Ward, [1867] 10 Cox, 573.
{w) 6 Geo. IV. c. 50. s. 30.
{x) 33 & 34 Vict. c. 77, s. 6.
(ij) 33 & 34 Vict. c. 14, s. 5.
CHAPTER X.
THE TRIAL.
The full complement of jurors having been obtained, they
are sworn ; or, if any of them, either on conscientious grounds
or as having no religious belief, object to the oath, they
make the statutory declaration, or they may, if they please,
take the oath with uplifted hand in the Scottish manner (a).
The oath and mode of taking it differ slightly in felonies
and in misdemeanours. In felonies, each juror takes the
oath separately in the following terms : " I swear by
Alvnighty God that I will well and truly try, and true
deliverance Tnake, between our Sovereign lord the King and
the prisoner at the bar, whom I shall have in charge, and
a true verdict give according to the evidence." In mis-
demeanours, four take hold of the book at the same time,,
and four, or sometimes all, are sworn together. The oath is :
" I swear by Almighty God that I will well and truly try the
issue joined between our Sovereign lord the King and the de-
fendant, and a true verdict give according to the evidence "
After the jury are sworn, in cases of treason or felony,
the crier at the assizes makes the following proclamation :
" If any one can inform my lords the King's justices, the
King's attorney- general, or the King's serjeant, ere this
inquest be taJcen between our Sovereign lord the King, and
the prisoners at the bar, of any treason, murder, felony, or
misdemeanour, committed or done by them, or any of them,
let him come forth, and he shall be heard; for the prisoners
stand at the bar uj)on their deliverance " The Clerk of the
Court then having called the prisoner to the bar, says to the
(a) 51 & 52 Vict. c. 46.
358 THE TRIAL,
jury: ''Gentlemen of the jury, the 'prisoner stands indicted
by the name of John Styles, for that he on the (reciting the
substance of the indictment). Upon this indictment he has
been arraigned, and upon his arraignTnent he has pleaded
that he is not guilty; your charge, therefore, is to enquire
whether he be guilty or not guilty, and to hearken to the
evidence." In misdemeanours the jury need not be thus
charged. The counsel for the prosecution now opens the case
to the jury, stating the principal facts which the prosecution
intend to prove. He then calls his witnesses; who, having
been sworn, are examined by him, and then subjected to
cross-examination by the prisoner or his counsel. The counsel
for the prosecution may re-examine on matters referred to
in the cross-examination. The Court also may, at any time,
interpose and ask questions of the witnesses. At the con-
clusion of the case for the prosecution the defendant's counsel
may, if he thinks proper, submit to the Judge that there is
no case for him to answer, and if the Judge is of that opinion
he will direct the jury to acquit the defendant (6).
After the case for the prosecution is closed, it is ascertained
whether the defence intend to call any witnesses. If it is
intended to call for the defence the person accused as a
witness but no other witness as to the facts, the defendant
then gives his evidence (c), and then, or at the close of the
evidence for the prosecution, if no evidence at all as to the
facts is given for the defence, the counsel for the prosecution
may, in case the prisoner is defended by counsel, but not
otherwise, address the jury a second time in support of his
case, for the purpose of summing up the evidence against
the prisoner [d). He must, however, in this speech, and in
his final reply if he has one, be careful to observe the rule
that if the defendant has not given evidence on oath or has
not called his wife as a witness, his failure to do so must
(6) As to this, see further, p. 476.
(c) 61 & 62 Vict. c. 36, s. 2. As to the examination of the person accused and
his wife, v. p. 365. Although the prisoner only gives evidence, counsel for the
prosecution is permitted, in summing up his own evidence, to comment also upon
that given by the prisoner, R. V. Gardner, [1899] 1 Q. B. 150; 68 L. J.'Q. B. 42
(d) 28 & 29 Vict. c. 18, s. 2.
THE TRIAL. 359
not be made the subject of any comment by counsel for the
prosecution (e). If the prisoner has witnesses whom he
wishes to call, in addition to giving his own evidence, his
counsel opens the case for the defence, and calls these
witnesses in support thereof. They also are subject to cross-
examination by the counsel for the prosecution, and re-
examination by the counsel for the defence on this cross-
examination. The Judge may in his discretion allow the
prosecution to call witnesses to rebut or answer evidence given
for the defence, but this will not usually be permitted where
such witnesses could, and in fairness ought to, have been,
called by counsel for the prosecution before he closed his
case (/). The counsel for the prisoner is entitled, at the
close of the examination of the witnesses, to sum up his
evidence (g).
After this address by the counsel for the defence, the
counsel for the prosecution has the right of reply in cases
where evidence, written or parol, has been adduced in
defence. This does not, however, apply where the only
witness called for the defence is the person who is upon his
trial, as in such a case the prosecuting counsel has no right
of reply after the prisoner's counsel has addressed the
jury (h); moreover, where the only additional evidence called
for the prisoner is as to his character, the right of reply is
never exercised. If no evidence has been adduced for the
prisoner other than his own evidence, the address of the
counsel for the defence is the last. There is, however, one
exception. In those Crown cases in which the Attorney-
General or Solicitor-General is personally engaged, a reply,
where no witnesses have been called for the defence, is
allowed as of right to the counsel for the Crown (i). If two
prisoners are jointly indicted for the same offence, and only
one calls witnesses, the counsel for the prosecution has the
(e) 61 & 62 Vict. c. 36, s. 1 (b).
if) R. V. Crippen, [1911] 1 K. B. 149.
(g) 28 & 29 Vict. c. 18, b. 2.
(h) 61 & 62 Vict. c. 36, s. 3.
(t) See the resolution of the Judges in Dec. 1884 ; 6 State Trials, New Series
p. 3, note (c); Archbold, 200.
360 THE TRIAL.
right to reply generally; but this is sumvium jus, and ought
to be exercised with great forbearance, and if the offences
are really separate, the prosecuting counsel can only reply
on the case of the party who has called witnesses {k). If the
prisoner is not defended by counsel, he may cross-examine
the witnesses for the prosecution and examine his own
witnesses; and, at the end of such examination, address
the jury in his own defence, either upon oath or not, as he
may prefer. And if one only of two prisoners jointly indicted
is defended by counsel, the undefended one may cross-
examine and examine as above, and make his statement to
the jury before or after the address of the counsel for the
other, as the Court thinks fit. If the prisoners jointly indicted
are defended by different counsel, each counsel cross-examines,
either in order of seniority at the bar, or in the order of the
names of the prisoners on the indictment, the latter being
the more usual course. If a prisoner defended by counsel
wishes to address the jury and examine and cross-examine
witnesses, he may do so; and his counsel may argue points of
law, and suggest questions to him in cross-examination; but
he cannot, as a matter of right, have counsel to examine
and cross-examine witnesses, and reserve to himself the right
of addressing the jury {I), otherwise than as a witness from
the witness-box.
Nevertheless in some cases the prisoner, though represented
by counsel, has been allowed to make a statement not upon
oath (w), though whether he should do so before or after
his counsel has addressed the jury does not appear to be well
settled [n).
As to the practice of allowing counsel defending a prisoner
to make, in his address to the jury, a statement of facts not
intended to be proved, it formerly varied (o). But with a
(k) R. V. Jordan, [1839] 9 C. & P. 118; v. also R. v. Trcvelli, [1882] 15 Cox,
289; and Archbold, 223.
(I) R. V. White, [1811] 3 Camp. 97 ; 13 K. R. 765.
(m) R. V. Manzano, [1860] 2 I". & F. 64; R. v. Doherty, [1887] 16 Cox, 306.
(n) R. V. Pope, [1902] 18 T. L. E. 717; R. v. Sherriff, [1903] 20 Cox, 334;
see Archbold, 196.
(o) R. V. Weston, [1879], 14 Cox, 346.
THE TRIAL. 361
view to settle the practice on this point, a meeting of the
Judges was held on November 26, 1881, and the following
resolution was come to, viz., " That in the opinion of the
Judges it is contrary to the administration and practice of
the criminal law, as hitherto allowed, that counsel for
prisoners should state to the jury, as alleged existing facts,
matters which they have been told in their instructions, on
the authority of the prisoner, but which they do not propose
to prove in evidence " (p). Whatever hardship this rule may
have sometimes inflicted when prisoners were unable to give
evidence on their own behalf, there can be none now that
they may give such evidence in all cases.
It will simplify matters if we tabulate the steps in the
various cases which may occur.
i. The prisoner defended by counsel and adducing evidence
in defence in addition to his own evidence.
Counsel for prosecution opens his case.
Counsel for prosecution examines his witnesses, who may
be then cross-examined and re-examined.
Counsel for defence opens his case.
Counsel for defence examined the prisoner (if he is
called) and his other witnesses, who may be then cross-
examined and re-examined.
Counsel for defence sums up his case. ^
Counsel for prosecution replies.
ii. Prisoner defended by counsel, but not adducing evidence
except his own evidence.
Counsel for prosecution opens his case.
Counsel for prosecution examines his witnesses.
Prisoner (if he desires to do so) gives his evidence.
Counsel for prosecution sums up his case. ^
Counsel for defence addresses the jury.^
(p) V. Archbold, 222.
362 THE TEIAL.
iii. Prisoner not defended by counsel, but calling witnesses.
Counsel for prosecution opens his case.
Counsel for prosecution examines his witnesses.
Prisoner gives his own evidence (if he wishes to do so)
and examines his witnesses.
Prisoner addresses the jury.
Counsel for prosecution replies. ^
iv. Prisoner not defended by counsel, and not calling
witnesses.
Counsel for prosecution opens his case.
Counsel for prosecution examines his witnesses.
Prisoner gives his own evidence on oath (if he so desires) 1/^
and addresses the jury.
The only other proceeding before the jury consider their
verdict is the surnviing-wp by the judge, or, at the sessions,
by the chairman or recorder. The object of this is to explain
the law as applicable to the case under trial, and to marshal
the evidence so that it may be more readily understood and
remembered by the jury. The Judge first states to them
the substance of the charge against the prisoner; he then,
if necessary, explains to them the law upon the subject;
he next refers to the evidence which has been adduced in
support of the charge, making occasionally such observations
as may be necessary to connect the evidence, to apply it to
the charge, and to render the whole plain and intelligible
to the jury; he then states the defence, and the evidence
given on the part of the defendant; and he usually concludes
by telling the jury that, if upon considering the whole of
the evidence they entertain a fair and reasonable doubt of
the guilt of the prisoner, they should give the prisoner the-
benefit of that doubt and acquit him.
CHAPTER XI.
THE WITNESSES.
Formerly many classes of persons were excluded on various
grounds as incompetent to give evidence, the principal
objections being that the proposed witness had a personal
interest in the result of the trial or was himself, by reason
of his having been convicted of serious crime, unworthy of
belief, or, as it was called, an " infamous " person. But
these objections to the testimony of a witness now operate
in another way. Instead of excluding it altogether, the
objection may weaken the testimony and prevent the jury
from placing ordinary credit in it; at the same time they
have the opportunity of gathering therefrom as much truth
as possible. Thus it has been provided by statute that no
person offered as a witness shall be excluded, by reason of
incapacity from crime or interest, from giving evidence (a).
However, even now a person under sentence of death is
incapable of giving evidence (6).
It is a general principle of English law (which must now,
however, be taken with a considerable qualification) that
no one is bound to criminate himself {nemo tenetur prodere
seipsum). Upon this principle it was for a great many years
and until very recently held that as a general rule an accused
person and his or her wife or husband could not be examined
as witnesses either for the prosecution or the defence. To
this general rule a considerable number of exceptions were
in recent years made by various statutes which it is now
unnecessary to mention ; but there were other exceptions (so
(o) 6 & 7 Vict. c. 85, s. 1.
(b) R. V. Webb, [1867] 11 Cox, 133.
364 THE WITNESSES.
far as regarded the husband or wife) wliicli existed at common
law, and to tliese we shall afterwards have to refer. Although
the law on this subject was revolutionised by the Criminal
Evidence Act, 1898 (c), which enabled an accused person
and his consort to give evidence, they were nevertheless not
placed entirely upon the footing of ordinary witnesses, there
being many special provisions with regard to their evidence
and the mode in which it is to be taken which require the
closest attention.
In one important respect the Criminal Evidence Act, 1898,
effected no alteration in the pre-existing law. It does not
(with the one exception referred to below) enable the
prosecution in any criminal case to call the accused person
himself as a witness. If he chooses to avail himself of his
right to give evidence on his own behalf, to which we shall
presently refer, he may do so, and he thereby exposes himself
to be cross-examined by counsel for the prosecution, but
unless he voluntarily tenders himself as a witness for the
defence he cannot be put upon his oath, nor can the
prosecuting counsel or the Court ask him any question what-
ever beyond calling upon him to plead guilty or not guilty to
the indictment. The Act, indeed, expressly provides that he
shall not be called as a witness except upon his own applica-
tion (d). To this rule there is but one exception, which arises
under the Evidence Act, 1877 (e), a statute which is not
affected in any way by the Criminal Evidence Act, 1898 (/).
The Evidence Act, 1877, provides that on the trial of any
indictment or other proceeding for the non-repair of or
nuisance to any public highway or bridge, or for a nuisance to
a river, or of any indictment or proceeding instituted for the
purpose of enforcing a civil right only, the defendant and
the wife or husband of such defendant shall not only be
admissible witnesses but shall be coTupellahle to give evidence.
(c) 61 & 62 Vict. c. 36.
(d) Ibid. s. 1 (a).
(e) 40 & 41 Vict. c. 14.
• (/) 61 & 62 Vict. c. 36, s. 6.
THE WITNESSES. 366
The provisions of the Criminal Evidence Act, 1898, are
as follows : —
1, Every person charged with an ofPence, and the wife
or husband, as the case may be, of the person so charged,
shall be a competent witness for the defence (g) at every
stage of the proceedings (h), whether the person so charged
is charged solely or jointly with any other person. Provided
as follows :
(a) A person so charged shall not be called as a witness in
pursuance of this Act except upon his own application :
(b) The failure of any person charged with an offence, or of
the wife or husband, as the case may be, of the person so
charged, to give evidence shall not be made the subject of
any comment by the prosecution (i) :
(c) The wife or husband of the person charged shall not,
save as in this Act mentioned, be called as a witness in
pursuance of this Act except upon the application of the
person so charged (k) :
(d) Nothing in this Act shall make a husband compellable
to disclose any communication made to him by his wife
during the marriage, or a wife compellable to disclose
any communication made to her by her husband during
the marriage :
(e) A person charged and being a witness in pursuance of
this Act may be asked any question in cross-examination
notwithstanding that it would tend to criminate him as
to the offence charged (Z) :
(g) I.e., to give evidence on his own behalf or on behalf of a co-defendant tried
jointly with him, R. v. Macdonald, 2 Cr. App. R. 322.
(fc) Except before the grand jury, R. v. Rhodes. [1899] 1 Q. B. 77; 68 L. J.
Q. B. 83; 79 L. T. 360; 47 W. R. 121; 62 J. P. 774.
(i) But the Judge may, in his discretion, comment upon Boch failure to givp
evidence, R. v. Rhodes, supra.
(k) I.e., upon the application of the person charged, being the husband or wife
of the witness. One of two co-defendants cannot call the husband or wife of the
other, except upon the other's application. Archbold, 452.
(I) It should be noticed that this and the following provision are to a great
extent the reverse of the rule with regard to the cross-examination of an ordinary
witness, who cannot be required to answer a question the answer to which would
tend to criminate him, but may be asked whether he has been convicted of any
other offence ; v. p. 374.
«i6t) THE WITNESSES.
(f) A person charged and called as a witness in pursuance
of this Act shall not be asked, and if asked shall not be
required to answer, any question tending to show that he
has committed or been convicted of or been charged with
any offence other than that wherewith he is then charged,
or is of bad character, unless : —
(i) the proof that he has committed or been convicted
of such other offence is admissible evidence to show
that he is guilty of the offence wherewith he is then
charged (tn) ; or
(ii) he has personally or by his advocate asked questions
of the witnesses for the prosecution with a view to
establish his own good character, or has given
evidence of his good character (n), or the nature or
conduct of the defence is such as to involve imputa-
tions on the character of the prosecutor or the
witnesses for the prosecution (o) ; or
(iii) he has given evidence against any other person
charged with the same offence (p).
(g) Every person called as a witness in pursuance of this
Act shall, unless otherwise ordered by the Court, give his
evidence from the witness-box or other place from which
the other witnesses gave their evidence :
(h) Nothing in this Act shall affect the provisions of
section eighteen of the Indictable Offences Act, 1848, or
(m) As to cases in which evidence of other offences is admissible to show guilt
of the offence charged, see pp. 219, 236.
(n) See p. 392.
(o) Where the defence is that one or more of the witnesses for the prosecution
committed the offence with which the prisoner is charged, and questions are
asked to show this, the nature and conduct of the defence necessarily involves
imputations on the character of the witnesses for the prosecution {R. v. Hudson,
[1912] 2 K. B. 465 ; 81 L. J. K. B. 861). In other cases the test is whether the
suggestions alleged to amount to an imputation involve an attack upon the
prosecutor or his witnesses upon the ground that his conduct, outside and as
distinct from the evidence given by him, makes him an unreliable witness {R.
V. Preston, [1909] 1 K. B. 568; 78 L. J. K. B. 335). Thus it is not an imputa-
tion on the character of a witness for the prosecution to say that his evidence is
a lie and to call him a liar with respect to the evidence given, but it is an imputa-
tion on his character to say that he is such a horrible liar that even his brother
will not believe him (R. v. ^ Rouse, [1904] 1 K. B. 184; 73 L. J. K. B. 60; R. v.
Rappolt, 6 Cr. App. R., 156).
(p) As to co-defendants giving evidence against each other, see p. 368.
THE WITNESSES. 367
any right of the person charged to make a statement
without being sworn.
2. Where the only witness to the facts of the case called by
the defence is the person charged, he shall be called as a
witness immediately after the close of the evidence for the
prosecution.
3. In cases where the right of reply depends upon the
question whether evidence has been called for the defence,
the fact that the person charged has been called as a witness
shall not of itself confer on the prosecution the right of
reply (q).
4. — (1) The wife or husband of a person charged with an
offence under any enactment mentioned in the schedule to this
Act may be called (r) as a witness either for the prosecution
or defence and without the consent of the person charged.
(2) Nothing in this Act shall affect a case where the wife or
husband of a person charged with an offence may at
common law be called as a witness without the consent
of that person (s).
(q) But counsel for the prosecution may sum up after the accused has given his
eridence, and the accused or his counsel will then make the last address.
(r) That is to say, the wife or husband is a competent but not compellable
witness («. v. Leach, [1912] A. C. 305; 81 L. J. K. B. 616). The enactments
mentioned in the Schedule and added thereto by subsequent statutes are : —
Vagrancy Act, 1824 (5 Geo. IV. c. 83), s. 3 — neglecting to maintain or
deserting wife or family.
Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), ss. 48—55, rape,
indecent assault, and abduction of women or girls.
Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), ss. 12 and 16—
criminal proceedings against husband or wife.
Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69)— the whole Act.
Punishment of Incest Act, 1908 (8 Edw. VII. c. 45)— the whole Act.
The Children Act, 1908 (8 Edw. VII. c. 67)— Part II. of the Act and the
first Schedule to the Act.
The Mental Deficiency Act, 1913 (3 & 4 Geo. V. c. 28), s. 56— unlawful con-
nection with female defectives.
A similar provision to s. 4, sub-s. 1, is also contained (i) in the Criminal Law
Amendment Act, 1912 (2 & 3 Geo. V. c. 201, s. 7, sub-s. 6, as to offences under
the Vagrancy Act, 1898 (61 & 62 Vict. c. 39); (ii) in the Children (Employment
Abroad) Act, 1913 (3 & 4 Geo. V. c. 7) s. 3, sub-s. 4, as to offences against the
Act; and (iii) in the Criminal Justice Administration Act, 1914 (4 & 5 Geo. V.
c. 28, sub-8. 3, as to bigamy.
(«) Such offences are (i) treason (perhaps) ; (ii) where the husband is indicted
for personal injury to the wife; (iii) where the husband is indicted for forcible
abduction and marriage. See Archbold, 451.
368 THE WITNESSES.
5. — (1) This Act shall apply to all criminal proceedings
notwithstanding any enactment in force at the commence-
ment of this Act, except that nothing in this Act shall affect
the Evidence Act, 1877 (t).
Defendants jointly indicted and given in charge to the
jury, and being tried together, cannot be called by the
prosecutor as witnesses against each other, though if one
pleads guilty he may be called against the other (n). But,
as we have seen (w), the course is sometimes adopted of
abandoning the prosecution against one of the co-defendants,
in order to make him a witness for the prosecution, and the
other defendants cannot object to this (x). And a defendant
jointly indicted with another can now give evidence on his
own behalf (y), and if his evidence tells against his co-
defendant the latter has a right to cross-examine him (z).
As to incompetency froTn want of understanding .
Generally the same rules which serve to render a person
incapable of committing a crime apply to exclude a person
from being a witness. Thus an idiot or a lunatic, unless in
an interval of sanity, is incompetent, unless the Judge is of
opinion that he is able to understand the nature and sanction
of an oath, and is of sufficient intelligence to be able to give
evidence [a). Persons deaf and dumb, or dumb only, may
give evidence through an interpreter, or in writing if they
are able to write (6).
As to children, the rule is different from that which
prevails when the question is whether the child is responsible
for its acts. An infant under the age of seven is incapable
of committing a felony or probably any indictable offence,
but at common law it is competent to give evidence at any
age, if it has sufficient intelligence to understand the nature
(t) V. p. 364.
(u) Archbold, 443, n.
iw) V. p. 341.
ix) R. V. Rowland, [1826] Ky. & M. 401.
(y) 61 & 62 Vict. c. 36, s. 1.
(2) R. V. Hadwen, [1902] 1 K. B. 882; 71 L. J. K. B. 581.
(a) R. V. Hill. [1851] 2 Dpn. 2-54; 20 L. J. M. C. 222.
(b) Morrison v. Lennard, [1827] 8 C. & P. 127; 2 Tayl. Ev. 985,
THE WITNESSES. 369
and obligation of an oath. It has also been provided by
statute (c) that where in any proceeding against any person
for an offence, any child of tender years who is tendered as
a witness does not in the opinion of the Court understand
the nature of an oath, the evidence of that child may be
received, though not given upon oath, if^ in the opinion of
the Court, the child is possessed of sufficient intelligence to
justify the reception of the evidence, and understands the
duty of speaking the truth. But such unsworn evidence must
be corroborated by some other material evidence in support
thereof implicating the accused {d). The Judge frequently,
before allowing a child to be sworn, questions it as to its
belief in God, knowledge of the consequences of telling a
' lie, &c. Juries are, however, often cautioned not to give
too great weight to the evidence of young children.
As to incompetency on account of the relationship of legal
adviser.
Counsel, solicitors, and their agents are not obliged, nor
are they allowed without the consent of their clients, to
give evidence of communications, written or parol, made to
them by their clients in their professional capacity. And
it is not material whether the communications were made
in the case under trial or not, nor whether the client be a
party to the cause. But they may be witnesses on points
which do not come within the sphere of professional
confidential communications — for example, to prove their
client's handwriting or his identity. This privilege does
not apply to a medical attendant, a conveyancer, a priest (e),
nor indeed to any others than those mentioned above.
The privilege attaching to communications made by a
person to a solicitor in his professionaJ capacity does not
(c) 8 Edw. VII. c. 67. s. 30, as amended by 4 & 5 Geo. V. c. 68, a. 28, sub-s. 2.
(d) 8 Edw. VII. c. 67, e. 30 (a).
(c) But it is at least very doubtful whether a sacramental confession made to a
priest is not privileged, and it is improbable that any Judge would now attempt
to compel a priest to disclose statements so made to him. Best, C.J., expressly
said that he would refuse to do so, though he would accept such evidence if the
priest chose to make the disclosure, Broad v. Pitt, [1828] 3 C. & P. 519; see
also au interesting note on this subject to R. v. Hay, [1859] 2 F. & F. 4.
c.L. 24
370 THE WITNESSES.
extend to communications so made in furtherance of any
criminal or fraudulent purpose. When upon the trial of such
person the solicitor is called upon to disclose what passed
between him and the accused person at the professional
consultation, the Court must, upon the special facts of each
particular case, judge of the admissibility of the proposed
evidence. Although the fact that the consultation was held
before the commission of the offence is not decisive, the
Court must in each case determine, upon the facts given, or
proposed to be given in evidence, whether it seems probable
that the accused consulted the solicitor, not after the com-
mission of the crime, for the legitimate purpose of being
defended, but before the commission of the crime, for the
purpose of being guided and helped in it (/).
In some cases the Court will not compel or allow the
disclosure of a particular fact if such disclosure may be
of detriment to the public service, and does not bear directly
upon the matter in question ; for example, evidence disclosing
the channels through which information reaches the Govern-
ment or the police (g).
As to a witness's tcant of religious belief.
Formerly a person who was wholly without religious belief
could not be a witness. But now this incompetency has been
done away with, and it is provided generally with regard to
oaths taken for all purposes where an oath is required by law,
that every person who objects to be sworn, and states as the
ground of such objection either that he has no religious
belief, or that the taking of an oath is contrary to his religious
belief, shall be permitted to make his solemn affirmation in
the form prescribed by the Act instead of taking an oath {h).
Nor, if an oath is taken, is the fact that the person taking it
had no religious belief any objection to the validity of the
(/) R. V. Cox, [1885] 14 Q. B. D., at p. 175; 54 L. J. M. C. 41.
(g) V: Hardy s Case, [1794] 24 How. St. Tr. 753; Marks v. Beyjus, [1890]
25 Q. B. D. 494.
(h) 51 & 52 Vict. c. 46, s. 1.
THE WITNESSES. 371
oath (z). Any person who, having made the affirmation pro-
vided by this statute, wilfully and corruptly gives false
evidence, is liable to be indicted, and convicted as if he had
taken an oath (k). But a witness cannot ask to affirm unless
he states either that he has no religious belief, or that he has
conscientious objections to take an oath as being against his
religion, and if a witness objects to take the oath it is the
duty of the presiding Judge to ascertain whether the form
of his objection entitles him to do so (l).
The form of oath varies according to the creed of the
witness. In an ordinary case, the witness holds the New
Testament or, ih the case of a Jew, the Old Testament in
his uplifted hand and says or repeats after the officer of
the Court, " / swear by Almighty God that the evidence I
shall give to tlie Court and jury sicorn between our Sovereign
lord the King and the 'prisoner at the bar, shall be the truth,
the whole truth, and nothing but the truth " (tji). Unless
the witness voluntarily objects or is physically incapable of
so taking the oath the officer of the Court must administer
it in the above form without question (n). In the case of a
person who is neither a Christian nor a Jew the oath is ad-
ministered in any manner which is binding by his religion (o).
The objection to the competency of a witness should be
made before he has been examined in chief, unless, of course,
the incompetency appears only on examination.
If it is intended to call at the trial witnesses for the
prosecution who were not examined before the magistrates,
notice should always be given to the prisoner. Such evidence
could not be rejected if the notice were not given, but the
absence of notice is always a subject of strong comment {p).
(t) Ibid. 8. 3.
(k) V. 1 & '? Geo. V. r. 6. ss. 1. 15.
(l) B. V. Moore, [18921 01 L. J. M. C. 80.
(m) 9 Edw. VII. c. 39.
(n) Ibid.
(o) Ibid. 8. 2, 8ub-8. 2; v. Archbold, 460.
(p) R. V. Greenslade, [1870] 11 Cox. 412.
372 THE WITNESSES.
CEEDIBILITY OF WITNESSES.
As we have already seen, instead of altogether excluding
a witness on account of some supposed bias, the course
generally adopted is to admit his evidence, allowing the
circumstances causing suspicion to affect his credibility.
It is for the jury to form their opinion of the credit due to a
witness as on any other fact. " The credibility of a witness
depends upon his knowledge of the fact he testifies, his dis-
interestedness, his integrity, his veracity, and his being bound
to speak the truth by such an oath as he deems obligatory
or by such affirmation or declaration as may by law be
substituted for an oath. Proportioned to these is the degree
of credit his testimony deserves from the Court and jury (q).
It- is chiefly to these points that cross-examination is directed.
As to knowledge. — It will be important to consider on
what the witness bases his evidence; what opportunities and
powers he had of observing the fact to which he testifies;
what were the surrounding circumstances, whether they were
such as to conduce to a correct observation; for example,
whether it was light or dark and whether he was near or
distant when the fact occurred, why and how his attention
was directed to its occurrence.
As to disinterestedness. — Here should be considered the
relationship of the prisoner and witness, natural or otherwise ;
the advantage or disadvantage that would accrue to the
witness on the prisoner's conviction; prejudices, quarrels, or
bias arising from any other cause (r).
As to veracity. — The chief mode in which the veracity of a
witness is impeached is by showing that at some former time
he has said or written, or, what is more damaging, sworn,
something not agreeing with or opposed to that which he now
swears. As to the manner in which he may thus be con-
iq) Archbold, 457.
(r) As to file evidence of accomplices, v. p. 376.
THE WITNESSES. 373
fronted with his former allegations, it is provided by statute
that if, on cross-examination, a witness does not admit having
made an inconsistent former statement, proof may be given
that he did make it; but before such proof can be given,
the circumstances of the supposed statement, sufficient to
designate the particular occasion, must be mentioned to the
witness, and he must be asked whether or not he has made
such a statement (s). If the statement has been in writing,
or reduced into writing, as in the case of depositions, he may
be cross-examined as to it without the writing being shown
to him; but if it is intended to contradict him by the writing,
his attention must, before such contradictory proof can be
given, be called to those parts of the writing which are to be
used for the purpose of so contradicting him. But this does
not prevent the Judge from inspecting and making such use
of the writing as he thinks proper (t). It should be observed
that when a witness is cross-examined as to contradictory
statements made by him before the magistrates, the cross-
examining party is boimd by the witness's answer if he
should deny having made such statements, unless the written
deposition is actually put in evidence to contradict him (u).
As to general character. — It has been noticed above that a
person is a competent witness although he has been convicted
of a crime; but of course that fact will carry weight with
the jury. To weaken the testimony of a witness, he may be
cross-examined as to his delinquencies, or other witnesses
may be called to prove his generally bad reputation and that
they themselves would not believe him on his oath (w).
A witness may be asked questions with regard to alleged
crimes or other improper conduct ; but he is not compelled
to answer them if such answer would tend to expose the
witness, or the husband or wife of the witness, to a criminal
charge, or to a penalty or forfeiture of any kind (x). In
is) 28 & 29 Vict. c. 18, s. 4.
(t) Ibid. 8. 5.
(u) R. V. Riley, [1866] 4 F. & F. 964.
(to) R. V. Broicn, [1867] L. R. 1 C. C. R. 70; 36 L. J. M. C. 59.
(x) Evidence Act, 1851 (14 & 15 Vict. c. 99), s. 3.
374 THE WITNESSES.
order to entitle a witness to the privilege of not answering
a question, as tending to criminate him, the Court must see
from the circumstances of the case and the nature of the
evidence which the witness is called to give, that there is
reasonable ground to ajDprehend danger to the witness from
his being compelled to answer; moreover, the danger to be
apprehended must be real and appreciable with reference to
the ordinary operation of law in th^e ordinary course of things,
and not a danger of an imaginary character, having reference
to some barely possible contingency (y) ; but if the fact of
the witness being in danger be once made to appear, great
latitude should be allowed to him in judging of the effect
of any particular question. But all other questions, if
material to the issue, and even perhaps if they merely go to
the credit of the witness, must be answered, however strongly
they may reflect on the witness's character (z). A denial of
improper conduct by the witness is conclusive, and he cannot
be contradicted by calling other witnesses, unless the fact
be relevant to the issue (a). A witness may, however, be
questioned as to whether he has been convicted of a felony or
misdemeanour, and, if he does not admit it, the cross-
examining party may prove the conviction; and a certificate
of the indictment and conviction for such ott'ence, signed by
the clerk of the Court, or other officer having the custody of
the records of the Court where the offender was convicted, is,
on proof of the identity of the person, sufficient evidence of
such conviction (h). In order to show the general bad
character of the witness, almost any question may be asked
as to his past life. It is left to the discretion and good feeling
of the bar not to exceed the limits required by the necessities
of the case, by wantonly taking away a person's character.
As has already been stated, witnesses may be called to show
the general bad character of a witness. But they may not
be examined as to any particular offences which are alleged
(y) R. V. Boyes. [1861] 30 L. J. Q. B. 301; 1 B. & S. 311.
(z) Archbold, 453, 458.
(a) Harris v. Tippett, [1811] 2 Camp. 637.
(b) 28 Vict. c. 18, s. 6.
THE WITNESSES. 375
against the witness. On the other hand, witnesses may be
called to testify to the general good character of the' witness,
if that is questioned (c).
It must, however, be borne in mind that the observations
in the above paragraph do not apply to a defendant giving
evidence on his own behalf. He cannot refuse to answer any
question on the ground that it would tend to criminate him
as to the offence for which he is being tried, but on the other
hand it is only under certain circumstances to which we have
already referred (d) that he can be questioned as to his.
character or previous conviction.
NUMBER OF VTITNESSES.
In all cases, both before the grand jury and at the trial,
one witness for the prosecution is sufficient, with the follow-
ing exceptions : —
1. In treason or misprision of treason (except in cases tried
as murder) two witnesses are required, unless the prisoner
confesses (e).
2. In perjury the accused cannot be convicted solely upon
the uncorroborated evidence of one witness (/).
3. On a prosecution for blasphemy under 9 & 10 Wm. III.
c. 35, two witnesses are necessary (g).
4. In offences, against sections 2 & 3 of the Criminal Law
Amendment Act, 1885, no person can be convicted upon the
evidence of one witness, unless such evidence be corroborated
in some material particular by evidence implicating the
accused (h).
5. The same rule applies to the unsworn evidence of
children, which must be similarly corroborated (t).
(c) Archhold. 458, 459.
id) V. p. 366.
(c) T. p. 39.
(f) V. p. 67
(g) V. p. 56, and Archbold, 464.
(h) 48 & 49 Vict. c. 69, 8S. 2, 3; v. p. 160. In rape also corroboration is
required in practice, though not in law, Archbold, 464.
(»■) V. p. 375.
376 THE WITNESSES.
It will be convenient here to notice the evidence of
accomplices. Naturally it is viewed with suspicion, inasmuch
as, on the one hand, the accomplice may hope to gain favour
and leniency by assisting the prosecution; on the other hand,
he will often be anxious to shield his companions. In
practice, though not in strict law, it is deemed essential that
the evidence of the accomplice should be corroborated in
some material part by other evidence, so that the jury may
be led to presume that he has spoken the truth generally (k).
This confirmatory evidence must be unimpeachable; so that
the evidence of another accomplice will not suffice (I). The
confirmatory evidence required is some independent testimony
which connects the accused with the crime — i.e., which
confirms not only the evidence by the accomplice that the
crime was committed, but his evidence that the accused com-
mitted it (m). But it is not necessary that he should be
corroborated in every particular provided there is a sufficient
amount of confirmation to satisfy the jury (n). It is the duty
of the Judge to warn the jury of the danger of convicting
upon the uncorroborated evidence of an accomplice, though
at the same time pointing out that they Tnay do so if they
choose (o). In the absence of such a warning the Court of
Criminal Appeal will set aside the conviction (p). If there
has been a proper caution the Court of Appeal will review
all the facts of the case, bearing in mind that the jury heard
and saw the witnesses, and will quash the conviction if the
verdict is unreasonable and cannot be supported by the
evidence (q).
How is the attendance of witnesses procured? In both
felonies and misdemeanours the witnesses examined before
the committing magistrates are usually bound over by
(fc) V. R. V. Gallagher, [1883] 15 Cox, at p. 318.
(l) R. V. Noakes. [1832] 5 C. & P. 326.
(m) R. V. Baskerville, [1916] 2 K. B. 658; 86 L. J. Iv. B. 28; 12 Cr. App. R.
81.
(n) jB. v. Gallagher, [1883] 15 Cox, at p. 318.
(o) jB. v. Meunier, [1894] 2 Q. B. at p. 418; R. v. Stubbs, Dears. C. C. 555;
25 L. J. M. C. 16.
(p) R. V. Tate, [1908] 2 K. B. 680; 77 L. J. K. B. 1043.
Iq) R. V. Baskerville, aupra.
THE WITNESSES. 377
recognisance by him to appear at the trial and give evidence.
If they do not appear, the recognisances may be estreated
and the penalty levied. All other witnesses may be com-
pelled to attend by subpoena. This may be issued either at
the Crown Office in London, or by the clerk of assize, or
clerk of the peace at sessions. A copy of the writ is served
upon the witness personally, the original writ being shown
to him, and the subpoena may be served in any part of the
United Kingdom (r).
The Merchant Shipping Act, 1894, contains a provision {s)
by which, under certain circumstances, evidence taken
abroad can be used upon a trial in England for a criminal
offence. Whenever in the course of any legal proceeding
the testimony of a witness is required, then, upon due proof
that the witness cannot be found in the United Kingdom, any
deposition that the witness may have previously made on oath
relative to the same subject-matter before any magistrate
in His Majesty's Dominions other than the United Kingdom,
or any British Consular officer elsewhere, shall be admissible,
provided that in criminal cases the deposition shall not be
admissible unless it was made in the presence of the person
accused, and the fact of it being made in his presence must
be certified by the official before whom the deposition is made.
If a written instrument, required as evidence, is in the
possession of some person, he is served with a svhpocna duces
tecum, ordering him to bring it with him to the trial. Unless
he has some excuse, allowed to be valid by the Court, he must
produce it at the trial. Such lawful excuses are the follow-
ing : that the instrument will tend to criminate the person
producing it, or, if he be a solicitor, his client, or that it is
his title-deed.
In the event of the non-appearance of a witness in answer
to a subpoena, he incurs certain penalties. If the writ has
been sued out of the Crown Office, the King's Bench Divi-
sion of the High Court will, upon application, grant an
attachment for the contempt of Court. In other cases the
(r) 45 Geo. m. c. 92, sb. 3. 4.
(a) 67 & 68 Vict. c. 60, s. 691.
378 THE M^ITNESSES.
proceedings must be by way of indictment (t). But to render
a witness subject to these penalties, he must have been served
personally a reasonable time before the trial, and, if he is
served in Scotland or Ireland, a sufficient sum to cover his
expenses of coming and attending to give evidence and of
returning must have been tendered to him at the time of
service (m). And as regards a witness served in England,
if his expenses have not been tendered, and he is so poor as
not to be able to go to the place of trial, this will probably
be allowed by the Court as a sufficient excuse.
If the witness is in custody, the proceedings are different.
If in criminal custody, a Secretary of State, or any Judge of
the King's Bench Division, may, on application by affidavit,
issue a warrant or order under his hand for bringing up such
person to be examined as a witness {w), or his attendance may
be secured by a writ of habeas corpus ad testificandum. If
in civil custody, a writ of hab. corp. ad test, is obtained upon
application to a Judge in Chambers, founded upon an affidavit
stating that the person to be brought up is a material witness.
If the evidence of a person in Court is required, he is bound
to give it, although he has not been subpoenaed.
A witness, whether subpcenaed or bound over by recog-
nisance or even if attending voluntarily (x), either ta
prosecute or give evidence, is privileged from arrest whilst
attending the trial on every day of the assizes or sessions
until the case is tried, also for a reasonable time before and
after trial whilst coming to or returning from the place of
trial.
As we have seen, preventing a witness from attending or
giving evidence is a contempt of Court; and intimidating a
witness from giving or attempting to persuade him not to give-
evidence for the prosecution is a misdemeanour (y).
(t) Archbold, 468.
(«) 45 Geo. III. c. 92. s. 4.
(w) 16 & 17 Vict. c. 30, s. 9; Crown Office Eules, 1906, rr. 228, 229; 61 & 62
Vict. c. 41, 8. 11.
(x) Archbold, 467; Meekins v. Smith, [1791] 1 H. Bl. 636.
(!/) V. p. 82.
THE WITNESSES. 379
A Court of Assize or Quarter Sessions before which any
indictable offence is prosecuted, and also a Court of summary-
jurisdiction by which an indictable offence is dealt with
summarily, or justices before whom a charge of an indictable
offence is made but is not dealt with summarily, may direct
the payment of the costs of the prosecution, or the defence,
or both, out of the funds of the county or county borough;
these costs are, subject to the regulations of the Secretary
of State (who may fix rates or scales of payment), such as
appear to the Court to be reasonably sufficient to com-
pensate the prosecutor for the expenses incurred by him in
carrying on the prosecution, and to compensate any witness*
for the prosecution or defence (except witnesses to character
only unless specially directed) for his expense, trouble, or
loss of time in attending and giving evidence (z).
In addition to any other punishment the Court before which
any person is convicted of an indictable offence may, if it
think fit, order the person convicted to pay the whole or any
part of the costs of the prosecution (a). And in certain
eases — viz., where a person is acquitted on an indictment by
a private prosecutor for the publication of a defamatory libel,
or for any offence against the Corrupt Practices Prevention
Act, 1854 (6), or for any corrupt practice under the Corrupt
and Illegal Practices Prevention Act, 1883 (c), or on an
indictment under the Merchandise Marks Acts, 1887 to 1894,
or on an indictment under the Vexatious Indictments Act,
1859 (d), in a case where the defendant has not been com-
mitted for trial or bound by recognisance to answer the
indictment — the Court before which he is acquitted may order
the prosecutor to pay the whole or part of the costs of the
defence (e). Moreover, where justices dismiss a charge of an
indictable offence they may make a similar order against the
prosecutor if they are of opinion that the charge was not made
(z) 8 Edw. VII. c. 15 (Costs in Criminal Cases Act, 1908), e. 1.
(a) Ibid. 8. 6, sub-s. 1
(b) 17 & 18 Vict. c. 102.
(c) 46 & 47 Vict. c. 51.
<d) 22 & 23 Vict. c. 17.
(e) 8 Edw. VII. c. 15, s. 6, sub-s. 2.
380 THE WITNESSES.
in good faith, but if the amount of the costs so ordered to
be paid exceeds ,£25 the prosecutor may appeal to Quarter
Sessions against the order (/).
Similarly if a person is committed for trial and is not
tried (which may be because no indictment is preferred
against him or because the grand jury have refused to find
a true bill), the prosecutor may be ordered to pay costs as
if the defendant had been acquitted (g).
The Costs in Criminal Cases Act, 1908, does not apply to
prosecutions for the non-repair or obstruction of any high-
way, public bridge, or navigable river. Costs in such cases
may be allowed against the unsuccessful party as in civil
proceedings (h).
(/) Ibid. s. 6, sub-s. 3.
(g) Ibid. s. 7.
(h) Ibid. s. 9, sub-8. 3.
CHAPTEE XII.
THE EXAMINATION OF WITNESSES.
This is a subject on which, though a wide latitude is allowed
to counsel, some rules may be laid down as directly authorised,
others as developed in and sanctioned by practice.
We have already noticed the general course of the examina-
tion of witnesses (a) ; namely, that the witnesses for the
prosecution are first examined in chief by the counsel for the
prosecution, and then cross-examined by the counsel for the
defence; and after the case for the prosecution has closed,
then the witnesses for the defence are examined by the
counsel for the defence, and cross-examined by the counsel
for the prosecution ; in each case the witness being re-
examined by the party calling him, if it is thought desirable.
It should also be remembered that the Court may at any
time put such questions as it thinks fit to the witness, even
after he has left the witness-box; and that if after the
counsel has finished his examination or cross-examination,
he thinks of some other question which ought to have been
asked, that question can be put only through or by leave
of the Court.
It is usual for counsel for the prosecution to call all the
witnesses whose names are on the back of the indictment,
even though he may not wish to ask them any question,
the object being to afford the defence an opportunity to
cross-examine if they so desire. In such a case the counsel
for the prosecution may re-examine. Nevertheless a
prosecutor is not in strictness bound to call every witness
whose name is on the back of the indictment, although it
(a) T. p. 301.
382 THE EXAMINATION OF WITNESSES.
is usual to do so (6) ; nor can a prosecutor be compelled to
give an accused person tlie additions and places of residence
of witnesses named on the back of the indictment (c).
When any collusion is suspected among the witnesses,
or it is thought that any of them will be influenced by what
they hear from counsel and other witnesses, and indeed as
a matter of course in many Courts, those witnesses who have
not yet been examined are ordered to leave the Court until
they are wanted, and after examination they are required
to remain in Court. The Judge will do this either at his
own instance or on the application of the opposite party.
If the order be disobeyed, the witness may be punished
as for his contempt; but, though the disobedience will be
matter of remark for the jury, the Judge has no right to
reject his testimony (d).
At the outset it will be well to ascertain the position of
the counsel for the prosecution and for the defence respec-
tively, their functions and conduct, their respective duties,
and the spirit in which they should conduct them. It is
needless to observe that it is not the object of the counsel
for the prosecution to get a conviction at any price. It is
his duty to see that the case against the prisoner is brought
out in all its strength ; but it is not his duty to conceal,
or in any way diminish the importance of, its weak points,
his function being to put forward, but with all possible
candour and temperance, that part of the case which is
unfavourable to the prisoner (e).
On the other hand, the counsel for the prisoner has before
him, as his object, the acquittal of the prisoner. His duty
is to act as an advocate, and not to any extent as a Judge.
He has to put himself in the place of the accused, and so is
not under any obligations which the accused would not be
(b) R. V. Simmonds, [1823] 1 C. & P. 84 ; R. v. Whitbread, ibid, (n.); R. v.
Taylor, ibid. (n.).
(c) B. V. Gordon, [1843] 12 L. J. M. C. 84; v. also Eosc. 119.
(d) R. V. Colley, [1829] Moo. & M. 329. ,
(e) Prosecuting counsel should regard themselves rather as ministers of justice
assisting in its administration than as advocates; R. v. Puddick, 4 F. & F., at
p. 499, approved in R. v. Banks, [1916] 2 K. B. 621; 12 Cr. App. R. 74.
THE EXAMINATION OF WITNESSES. 383
under. Thus he is not obliged to divulge facts with which
he may be acquainted which are unfavourable to the
prisoner (/). Nevertheless he is not entitled to browbeat a
witness, nor otherwise to treat him unfairly, nor to misstate
the evidence to the jury.
The rules as to examination-in-chief and cross-examina-
tion respectively are generally the same, whether the witness
be for the prosecution or the defence. They are based upon
the supposition that the witness called and presented by the
party examining him is favourable to his side, and therefore
unfavourable to his opponent.
Examination-in-chief. — What questions may be put to a
witness? In the first place, only such as are relevant to the
matter in issue, the answers to which will tend to prove the
offence or defence. Of course, if circumstantial evidence is
resorted to, greater latitude will be allowed, inasmuch as it
is not 80 easy to estimate the relevancy of the question.
The second great rule is that leading questions may not be
asked in examination-in-chief. A leading question is one
which in any way suggests to the witness the answer which
the person asking requires. Thus, to ask a witness, " Had
the prisoner a white hat on? " would be a leading question;
but the question, " What sort of a hat had the prisoner on? "
would not be, unless, indeed, the point to be proved was
whether he had or had not a hat on. It is often given as a
test whether a question be leading or not whether it might
be answered by "Yes" or "No." But this test is by no
means decisive; all questions which may be thus answered
not being leading, whereas other questions than those which
may be so answered may be leading. Thus the question,
f/) " The counsel for the Crown may not use arguments to prove the guilt of
the prisoner wliich he does not himself believe to be just, and he is bound to
warn the jury of objections which may diminish the weight of his arguments.
In short, us far as regards his own evidence, his speech shouhl as much as
possible resemble the summing-up of the Judge. The counsel for the prisoner
may use arguments which he does not believe to be just. It is the business of
the' jury, after hearing the Judge, to say whether or not they are just." — St.
Dig. Cr. Law lfi8 Qst edition).
384 THE EXAMINATION OF WITNESSES.
"Could the prisoner hear what he said?" is not leading.
Though the rule is that leading questions may not be put in
examination-in-chief, there are certain exceptions, some
allowed as of right, others for the sake of convenience.
(i) For the purpose of identifying persons or things which
have already been described, the attention of the witness may
be directly pointed to them (g).
(ii) When a witness is called to contradict another, who
has sworn to a certain fact, he may be asked in direct terms
whether that fact ever took place.
(iii) When a witness is, in the opinion of the Judge,
hostile to the party calling him.
Leading questions are also not objected to —
(iv) When merely introductory, so as to save time.
(v) When the particular matter is not disputed. Thus,
where a witness having deposed to a fact has not been cross-
examined on it, questions may be put which assume that
fact.
A third general rule is, that the evidence of the witness
must relate to what is immediately within his knowledge
and recollection. But there is one exception to this rule.
In matters of science, skill, travel, &c., the evidence of
experts is allowed ; that is, persons who have a special
knowledge of the subject in question may be called to give
their opinion as to the consequences, &c., of facts already
proved. For example, if the wounds of a murdered person
are described, a surgeon may be asked his opinion as to
whether they caused the death ; but, of course, it will be for
the jury to determine how far they will adopt this opinion (7i).
A witness is not allowed to read his evidence. But he
is allowed to refresh his memory by referring to any
writing made or examined by himself soon after the event
to which it refers (t), and a skilled witness called to give
evidence on some scientific question may refresh his memory
by referring to professional treatises, tables, or the like.
(g) /?,. V. Watson, [1817]; Archbold, 472.
(h) R. V. WTiq}a, [1821] K. & R. 456.
(i) Archbold, 473.
THE EXAMINATION OF WITNESSES. 385
A fourth general rule is, that the contents of a written
document cannot be proved orally if the document is capable
of being produced, but must be proved by the document
itself. If, however, it be shown that it is lost, destroyed,
or in the possession of the prisoner, who has had notice to
produce it, other evidence may be given of its contents (k).
Another matter to be noticed is the possible hostility of
one's own witness. It is a rule that a counsel cannot dis-
credit his own witness, although he may, if he can, make out
his case by other and contradictory evidence; it is also, as
we have seen, a rule that leading questions may not be put
in examination-in-chief. But it is provided by statute (l)
that although a party producing a witness is not allowed
to impeach his credit by general evidence of bad character,
he may, in case the witness, in the opinion of the Judge,
proves adverse {i.e., hostile (m) ), contradict him by other
evidence, or, by leave of the Judge, prove that at other
times he has made a statement inconsistent with his present
testimony; but before such last-mentioned proof can be
given, the circumstances of the supposed statement, sufficient
to designate the particular occasion, must be mentioned to
the witness, and he must be asked whether or not he has
made such statement.
It will be remembered that a witness is not compelled to
answer questions which tend to criminate himself. By
several statutes, though they are obliged to answer the
questions, the evidence given by witnesses is expressly
declared not available against them on a criminal charge —
for example, under the Corrupt Practices Prevention Act (n).
Cross-c.ramination. — Inasmuch as a witness is supposed
to be inclined to favour the party calling him, greater powers
are given to the cross-examining counsel. He may ask leading
questions (o), and in this way remind the witness of anything
(k) V. p. 405.
(l) 28 & 29 Vict. c. 18, s. 3.
(m) Greenough v. Eccles, 5 C. B. (N.S.) 786; 26 L. J. C. P. 160.
(n) 46 & 47 Vict. c. 61, a. 59.
(o) Parkin v. Moon, 7 C. & P. 408.
C.L. 2ft
386 THE EXAMINATION OF WITNESSES.
■which may tend to help the cause of the opposite party. But
if the witness proves anything favourable to the cross-
examiner, the fact that the evidence was procured by leading
questions may, of course, diminish its value. The counsel
will not, however, be allowed to put into the witness's mouth
the very words he is to echo back again (p). In cross-
examination the questions will be of three classes : (i) those
which tend directly to refute or explain what has been given
in evidence in the examination-in-chief; (ii) those whose
object is to affect the credit of the witness; (iii) questions
put for the purpose of eliciting some fact which the cross-
examining counsel wishes to be before the Court. Again,
if the witness has given an account of an interview or
conversation and the counsel cross-examining him intends to
challenge the accuracy of what the witness has said by calling
evidence to the contrary, he is always expected to put his
client's detailed account of the occurrence to the witness
and thus to give him an opportunity of admitting or denying
it. It is not usual to cross-examine witnesses to character
unless the counsel cross-examining has some distinct charge
on which to cross-examine them (q). It is needless to add
that a cross-examining counsel should avoid asking a question
the answer to which, if unfavourable, would be conclusive
against him. And he should remember that the story of the
witness, if true, will often be confirmed the more he is
questioned about it; and this although there may be slight
discrepancies on immaterial points.
Re-exavfiination. — The object of the re-examination, if it
be judged expedient to. have recourse to it, is to inquire into
and explain what has transpired on cross-examination. But
it must be strictly confined to such matter; the re-examiner
may not without the leave of the Judge ask questions which
he might and ought to have put on examination-in-chief.
Any further questions after re-examination must be put
through the Judge, or by counsel with his permission.
(t)) R. V. Hardv, [1794] 24 How. St. Tr. 659. 755.
(\l) R. V. Hodgkiss, [1836] 7 C. & P. 298.
THE EXAMINATION OF WITNESSES. 387
If any improper, e.g., an irrelevant or leading, question be
put in examination-in-chief, the counsel on the other side
should immediately interpose and object to it before the
witness has time to answer it, though in the case of a leading
question this will often be ineffectual, inasmuch as the
mischief has been done by the suggestion being made.
Counsel in the same way should interpose if parol evidence
is proposed to be given when a document should be produced.
CHAPTER XIII.
EVIDENCE.
" Evidence, in law, includes all tlie legal means, exclusive
of mere argument, wliich tend to prove or disprove any fact
the truth of which is submitted to judicial investigation " (a).
In ascertaining the law on the subject of evidence in
general, three heads present themselves under which may
be ranged the chief principles which it is necessary to
consider: —
1. On whom the burden of proof lies.
2. What must be proved, and what may not be proved.
3. How it must be proved.
1. The burden of proof is on the prosecution as a rule.
The prosecution must prove their case before the prisoner
is called upon for his defence; and this although the offence
alleged consists of an act of omission and not of commission,
and therefore the prosecution have to resort to negative
evidence (6). The law considers a man innocent until he is
shown to be guilty. But the principle under discussion must
not be understood with unlimited signification. Though the
burden of proof of the charge is in general on the prosecution,
yet on particular points it is on the prisoner. This is
markedly the case in some offences. Thus, by various Acts of
Parliament, it is declared penal to do certain things, or
possess certain articles, without lawful excuse or authority;
such excuse or authority must be proved by the accused. For
example, to possess public stores marked with the broad
(a) 1 Tayl. Ev. 1.
(b) There is an exception to this rule when the accused pleads specially, e.g.,
autrefois acquit.
EVIDENCE. 389
arrow (c) ; to possess coining tools (d). Again it lies on the
defendant to prove that signals to smuggling vessels were
not made for the purpose of giving illegal notice (e), also to
show some justification for sending an unsea worthy ship to
sea (/). So where a person is charged with making or having
in his possession any explosive substance, under suspicious
circumstances, the onus lies on him to show that he made it
or had it in his lawful possession for a lawful object (g).
Again the onus lies on a defendant, who is accused of
forging, &c,, a trade mark, trade description, &c., to prove
that he acted without intent to defraud (h) ; or if he be
accused of selling, &c., goods, with any forged trade mark,
description, &c., to prove that he took reasonable precautions
and had no reason to suspect the genuineness of the mark, &c.,
gave the prosecutor all information in his power with respect
to the persons from whom he obtained such goods, &c., or
otherwise acted innocently (i). But it will be noticed that
in all these cases there is something to be proved in the first
instance by the prosecution — e.g., the possession of the goods
or the unseaworthiness of the ship.
And not only in the particular cases of which we have
given examples, but in most cases of circumstantial evidence
" there is a point (though it is impossible to determine
exactly where it lies) at which the prosecutor has done all
that he can reasonably be expected to do, and at which it is
reasonable to ask for evidence from the prisoner in explana-
tion, and to draw inferences unfavourable to him from its
absence " (k). Thus in a case of murder by poisoning, the
Court will naturally expect from the prisoner an explanation
of the object for which poison was purchased if it is traced
to his possession; so also in the case of the possession of
recently stolen goods. Killing is presumed to be murder until
otherwise accounted for.
(c) 38 & 39 Vict. c. 25.
(d) 24 & 25 Vict. c. 99, s. 24.
(e) 39 & 40 Vict. c. 36, s. 190.
(/) 57 & 58 Vict. c. 60, a. 457.
(g) 46 & 47 Vict. c. 3, s. 4 (1).
(h) .50 * 51 Viet. c. 28, e. 2 (1>.
(»•) Ibid. 6. 2 (2).
(k) St. Dig. Cr. L. 303 (Ist ed.).
890 EVIDENCE.
2. What must be proved'^ All facts and circumstances
stated in the indictment which cannot be rejected as
surplusage; in other words, all the constituents of the offence.
Though, as we shall see hereafter, if a more serious crime
contains, as it were, a less serious one, the prisoner indicted
for the former may sometimes be convicted of the latter, if
the more serious circumstances cannot be established; thus
on an indictment for murder if malice be not proved, the
prisoner may be convicted of manslaughter. In any case,
however, the offence must be proved to have been committed
within the extent of the Court's jurisdiction.
Closely connected with the question " What must be
proved?" is the question "What may not be given in
evidence?" As a rule, nothing must be given in evidence
which does not directly tend to prove or disprove the matter
in is&ue. The previous or subsequent bad character of the
prisoner may not be proved, unless to rebut evidence of good
character (Z). Nor may evidence be adduced to show that
the prisoner has been guilty of criminal acts other than those
covered by the indictment, for the purpose of leading to the
conclusion that the accused is a person lihely from, his conduct
or character to have comTnitted the offence for which he is
being tried (w). But such evidence may be admissible if it
is relevant to an issue before the jury, and it may be relevant
to prove guilty knowledge, design, or system, or to rebut a
defence set up by the prisoner (n), or where it relates to facts
which form part of the same transaction as, and so explain,
the facts upon which the prisoner is charged (o). Accordingly
(i) When it is necessary to prove the guilty knowledge
of the defendant, evidence may sometimes be given of his
having committed the same offence on other occasions. Thus,
on an indictment for uttering forged banknotes, or for
uttering counterfeit coin, evidence may be given of the
il) V. R. V. Rowion, [1865] 34 L. J. M. C. 57 ; 11 L. T. (n.s.) 745.
(to) MaUn v. Att.-Gen. for New South Wales, [1894] A. C, at p. 65;
63 L. J. P. C. 41.
in) Ibid, and see other cases cited Archbold 342, 344. As to when such evi-
dence may be given to rebut a defence, see in particular R. v. Bond, [1906]
2 K. B. 389.
(o) See Archbold, 344.
EVIDENCE. 391
defendant having at other times uttered or had in his
possession other forged banknotes or counterfeit coin (p).
So the guilty knowledge of the falsehood of a pretence may
be shown by evidence of a previous or even sometimes of a
subsequent obtaining, or attempting to obtain, by similar
false pretences (q). So also, as we have seen (r) the guilty^
knowledge of a receiver of stolen property may be proved by
evidence of his possession of other stolen property or of his'
previous convictions.
(ii) When it is necessary to prove malice, or intent, on
the part of the defendant, or to rebut a possible suggestion
of mistake or accident, evidence of other similar acts may be
given. Thus in a trial for murder, evidence of former un-
successful attempts or threats to murder the same person, andl
even of the actual murder of other persons by the same means,,
has been admitted as being relevant to the question whether
the prisoner's actions proved in the case under inquiry have
been wilful or accidental (s). And upon this principle it is
p^ rmissible to prove by other acts committed by the prisoner
V milar to that with which he is charged that the latter offence
was part of a systematic scheme or course of conduct which he
designedly adopted, as such evidence raises a presumption
that he was not acting under a mistake or undesignedly (t).
Evidence of this kind has been admitted in cases of obtaining
by false pretences (u), embezzlement and falsification of
accounts by servants (ic), forgery (a;), larceny (y), procuring
(p) For a number of authorities as to these and similar cases, v. Archbold,
345.
(q) R. V. Francis, [1874] L. R. 2 C. C. R. 128; 43 L. J. M. C. 97; v. p. 236,
ante.
(r) Ante, p. 219.
(«) R. V. Geering, [1849] 18 L. J. M. C. 215; Makin v. Att.-Gen. for New
South Wales, [1894] App. Cas. 57; 63 L. J. P. C. 41; R. v. Bond, [19061
2 K. B. 389 ; 75 L. J. K. B. 693
it) R. V. Francis, [1874] L. R. 2 C. C. R. 128; 43 L. J. M. C. 97; and see
the cases cited above.
(u) V. pp. 235, 236.
(u?) R. V. Richardson, [1860] 2 F. & F. 343; 8 Cox. C. C. 448- R v
Stephens, [1888] 16 Cox, C. C. 387.
(x) R. V. Millard. [18131 R. & R. 245- /?. v. Salt. [18621 3 F * F R.'U
(y) R. V. Blcasdale, ri848] 2 C. & K. 765; R. v. Firth [18691 L r' J
C. C. R. 173; 38 L. J. M. C. 54. . l j • •
392
EVIDENCE.
abortion (z), uttering counterfeit coin (a), arson (&), and
libel (c).
As to evidence of good character. — AVitnesses may be called
to speak generally to the good character of the prisoner, but
may not give evidence of particular facts as showing such
good character, unless such evidence tends directly to the
disproving of some of the facts in issue. The evidence must
be to the general reputation for good character, and not to
the witness's own opinion. The way in which the information
is elicited is by such questions as : " How long have you
known the prisoner? " " During that time, what has been his
general character for sobriety, honesty, and industry?"
General evidence of good character, if adduced by the
defence, may be disproved by general evidence of bad
character; but not by particular cases of misconduct, although
if he sets up his good character, the prisoner and his witnesses
may be cross-examined on the subject (d), and previous con-
victions may, as a rule, be proved in cases where the prisoner
calls witnesses to prove his good character, or tries to establish
a good character for himself by cross-examining the witnesses
for the prosecution (e).
3. The best evidence must always be given — that is, if it is
possible to be had; if not, then inferior evidence will be
admitted. But before this inferior (or secondary) evidence
is let in, the absence of the better evidence must be accounted
for. By this is meant that merely substitutionary evidence —
that is, such as indicates that more original sources of
information exist — must not be received so long as the original
evidence is obtainable.
The most common and perhaps the only application of
this rule is in the case of written instruments. It is plain
(z) R. V. Bond, [1906] 2 K. B. 389; 75 L. J. K. B. 693.
(a) R. V. Wylie, [1804] 1 B. & P. N. R. 92, 95; R. v. Johnson, [1909] 3 Cr.
App. R. 168.
(b) R. V. Gray, [1866] A. F. & F. 1102.
(c) R. V. Pearce, [1791] 1 Peake, 106.
id) V. p. 366.
(e) Archbold, 353; 6 & 7 Will. IV. c. Ill ; 24 & 25 Vict. c. 96, s. 116; c. 99,
s. 37.
EVIDENCE. 393
that the best evidence of the contents of a written document
is the writing itself, and therefore before a copy, or parol
evidence of its contents, can be received, the absence of the
original instrument must be accounted for by proving that
it is lost or destroyed, or that it is in the possession of the
opposite party, and that he has had reasonable notice to
produce it and does not do so (/). If once secondary evidence
is admitted, any proof may be given, as there are no degrees
of secondary evidence; thus, if an original deed cannot be
produced, parol evidence of its contents may be given
although there is an attested copy in existence (g). But for
the sake of convenience, duly certified or examined copies
may be given in evidence of all records, other than those
of the Court requiring proof of them, of journals of either
House of Parliament, and generally of the official documents
of other Courts, and parish registers, entries in corporation
books and books of public companies relating to things public
and general (h).
To avoid the inconvenience of the production in Court of
bankers' books, it has been provided that an examined copy
of any entry in such a book shall be received as prima facie
evidence of the entry and of the transaction therein recorded;
but it must first be proved by a partner or officer of the bank,
orally or by affidavit, that the book is one of the ordinary
books of the bank and is still in its custody, that the entry
was made in the usual course of business, and that the copy
is a correct copy of the entry. The bank cannot be compelled
to produce the original book without an order of a Judge (i).
Hearsay is no evidence.
This is a rule with which it is difficult to deal satisfactorily
because of the different definitions which have been given
of Ihe word " hearsay " and the various views which have
been taken as to the scope of the rule and the principles
(/) Archbold. 356.
(g) Sugden v. Lord St. Leonards, [1876] L. R. 1 P. D. 154; 45 L. J. P. 1;
34 L. T. 369; 24 W. R. 479.
Oi) Archbold, 356.
(t) 42 & 43 Vict. c. 11. An order may be obtained Qnder this Act for the
iospectioD of a banking account, sa. 7, 10.
394 EVIDENCE.
upon which exceptions to it have been admitted. Strictly
speaking, hearsay is any statement made by a person, not
being a witness, which is sought to be proved as evidence of
the truth of the matters stated. The mere making of a
statement is a fact, and, like other facts, may be proved as
original and not hearsay evidence if it is in issue, as in
a prosecution for libel or false pretences, or is relevant to the
issue as being a threat or an expression of hostility. But a
witness may not prove a statement, whether oral or written,
and whether made by himself or by some other person, if the
truth of the matters therein stated, as distinct from the mere
making of the statement, is material. Apart from the cases
as above mentioned, in which the making of a statement is
directly in issue or relevant to the issue, it may be proved as
original evidence in a number of cases, of which the following
are the most important : —
(i) Where a witness has been heard at another time to
say something different from his testimony in the case. Here
his previous contrary statement may be proved, not as
evidence of its truth, but as evidence that he has made
inconsistent statements and is therefore unreliable (k).
(ii) In cases of rape and similar offences against women
and girls, evidence that a complaint was made by the
prosecutrix and the particulars of such complaint may, so
far as they relate to the charge against the prisoner, be given
in evidence by the prosecutor, not as being evidence of the
fact complained of (which must first be proved) but as
evidence of the consistency of the prosecutrix with the story
told by her in the witness-box and as negativing consent {I).
Such complaints, however, to be admissible, must have been
made at the first opportunity after the offence which reason-
ably offered itself, and must have been voluntary and not
elicited by questions of a leading or suggestive character.
A mere question put by the mother or some other person, such
as "What is the matter?" will not render the statement
Ik) Arcbhold. S59. As to when such evidence may be given by the party
proaucing the witness, v. p. 385.
il) Arcnbold, 360; R. v. Lillyman, [1896] 2 Q. B. 167; 65 L. J. M. C. 195?
but see R. v. Christie, [1914] A. C, at 553.
EVIDENCE. 395
inadmissible, hut if the question asked were " Did So-and-so "
(naming the prisoner) "assault you?" "Did he do this and
that to you? " then the statement ought to be rejected (m).
(iii) Where it accompanies and explains an act which is
relevant (n).
(iv) Where it is part of the res gestcp, i.e., where it is
one of the facts which actually constitute the transaction
which is in issue. Thus, on a charge of murder or man-
slaughter, a statement made by the deceased immediately
after he was knocked down, as to the cause of the accident,
has been held admissible (o). So also statements made during
a quarrel in the course of which the deceased was killed
are admissible. But in order to be admissible as part of the
res gestae, the statement must not be separated by time or
circumstances from the commission of the crime in such a
way as to make it a narrative of past events. So where, on
a charge of murder, the deceased coming out of the house
after a quarrel and after the wound had been inflicted, said
" See what Harry has done for me," it was held that this
was a narrative of past events and was not admissible {p).
(v) Where the statement is made in the presence of the
person against whom it is offered as evidence {q).
In addition to the above there are, however, certain cases
in which hearsay in the strict sense is admissible, i.e., in
which a statement may be proved as evidence of the truth of
the matters stated. The chief of these are: — •
(i) Statements as to matters of pedigree (r).
(ii) Statements relating to the existence of any public or
general right or custom, or any matter of public or general
interest [s).
(iii) Declarations or statements made by persons under
the sensible conviction of their impending death, and who,
• (m) R. V. Osborne, [1905] 1 K. B. 651 ; 74 L. J. K. B. 311.
(n) See R. v. Christie, [1914] A. C. 545; 10 Cr. App. R. 141; Stephen Dig.
Ev. art. 8.
(o) R. V. Foster, 6 C. & P. 325.
(p) R. V. Bedingfield, 14 Cox, 341; see also R. v, Christie, supra.
(q) See post, p. 400.
(r) Stephen Dig. Ev. art. 31.
(«) Stephen Dig. Ev. art. 30; Archbold, 358.
396 EVIDENCE.
at the time, are id actual danger of death (i). Such
declarations are admitted only when the death of the
deceased is the subject of the charge (that is, in cases of
murder or manslaughter), and only if the declaration refers
to the injury which is the cause of death (u). Moreover,
if the deceased has expressed at the time of making the
declaration any hope of recovery, however baseless that hope
may have been, the declaration is inadmissible. There must
be on the part of the person making the declaration an
unqualified belief in the certainty of death and the abandon-
ment of all hope of living, or, as it has been expressed,
'^ a settled hopeless expectation of death," and before the
evidence can be admitted, this belief must be shown by the
prosecution to have existed (w). The question whether the
deceased had such a belief so as to make the declaration
admissible in evidence is for the Judge and not for the
jury (x).
(iv) Statements made by deceased persons, if against their
pecuniary or proprietary interest (y).
(v) Statements or entries, made in the ordinary course of
their duty or employment, by deceased persons, provided such
statements or entries were made from their own personal
knowledge, and at, or very shortly after, the time when
the act occurred which is sought to be proved (z).
(vi) When the bodily or mental feelings of a person are
material to be proved, the usual expressions of such feelings,
made at the time in question, are admissible; for example,
what was said to a surgeon by a person assaulted, immediately
after the assault (a). But such expressions are admissible
only so far as they relate to the nature and effect of such
(t) Archbold, 381. A declaration of this kind is admissible in a prisoner's
favour, as well as against him. R. v. Scaife, [1836] 1 M. & Bob. 651.
(u) R. V. Mead, [1824] 2 B. & C. 605.
(w) R. V. Jenkins, [1869] L. E. 1 C. C. E. 187; 38 L. J. M. C. 82; R. v.
Mitchell, [1892] 17 Cox, 503; R. v. Perry, [1909] 2 K. B. 697; 78 L. J. K. B.
1034.
(x) R. V. Whitmarsh, [1898] 62 J. P. 711.
(y) Archbold, 362.
(z) Archbold, 362.
(a) Aveson v. Lord Kmnaird, [1805] 6 East. 198.
EVIDENCE. 397
feelings; they cannot be given in evidence to show how or
by whom the condition was caused (6).
(vii) If a witness is dead or too ill to travel (or kept out
of the way by the prisoner (c)), his deposition taken before
the committing magistrate may be read, provided that such
deposition was taken in the presence of the accused, and that
he had an opportunity of cross-examining the witness (d).
The death or illness of the witness whose deposition it is
proposed to read, and the fact that the deposition was
regularly taken in the presence of the accused person must
be proved to the satisfaction of the Judge at the trial (e).
In the same way and under the same circumstances a
deposition taken before a coroner may be read at the trial
of a person for murder or manslaughter (/).
(viii) To perpetuate the testimony which can be given by a
person whose death is apprehended it is also provided that
— if it appear to some justice of the peace that any person
dangerously ill, and in the opinion of a registered medical
practitioner not likely to recover, is able to give material
information relating to an indictable offence, and it is not
practicable to take his deposition in the ordinary way — the
justice may take in writing the statement on oath or
affirmation of the person who is ill. Having observed the
formalities prescribed by the statute, such depositions are
transmitted to the proper quarter.
With regard to offences against children and young persons
punishable under the Children Act, 1908, and the statutes
referred to in the first schedule to that Act (g), including all
offences involving bodily injury to a child or young person,
there are special provisions for enabling a justice to take
(b) R. V. Nicholas, 2 C. & K. 246; R. v. Thomson, [1912] 3 K. E. 19;
81 L. J. K. B. 892.
(c) R. V. Scaife, [1851] 2 Den. 281; 20 L. J. M. C. 229.
(d) 11 & 12 Vict. c. 42, s. 17. So, also, as to depositions on behalf of the
accused, 30 & 31 Vict. c. 35, s. 3.
(e) R. V. Stephenson, [1862] 31 L. J. M. C. 147; L. & C. 165.
(/) R. V. Cowle, [1907] 71 J. P. 152. If the deposition contains any state-
ment which would not be evidence if given orally, that part of the deposition
must not be read to the jury.
(g) I.e.. offences under ss. 5, 42, 43, 52, 55, 56, and 62 of the Offences against
the Person Act. 1861, or under the Criminal Law Amendment Act, 1885, or the
Dangerous Performances Act, 1879 and 1897.
398 EVIDENCE.
the deposition of a cliild or young person whose attendance in
Court would involve serious danger to its life or health.
And if on the trial of the offender it is proved that the
deponent is dead, or will not in all probability ever be able
to travel or give evidence, or, in case of a child or young
person, that its attendance at the trial would involve serious
danger to its life or health, the statement may be read in
evidence without further proof if it purports to be signed
by the justice before whom it was taken (i). But it is a
condition precedent to the admission in evidence of such a
statement that reasonable notice of the intention to take such
statement was served upon the person (whether prosecutor
or accused) against whom it is proposed to be read, and that
such person had full opportunity (k), if he so wished, of
cross-examining the deponent (Z).
(ix) Confessions, in certain circumstances, are admitted
as evidence, but when they are admissible they are received
with great caution, not only from the consideration that,
owing to insanity or other reason, they may be false, but
also there is the danger of their not having been correctly
reported. To be admissible a confession must be free and
voluntary; and that it was so must be proved affirmatively by
the prosecution, and if any doubt exists as to this the evidence
ought to be rejected {m). If an objection is raised to the
admissibility of such evidence on the ground that the con-
fession was not free and voluntary, it is usual to allow the
defendant's counsel to cross-examine on this point before the
effect of the confession is stated. Whether a particular
confession is free and voluntary is sometimes a difficult
question to decide, because, although the rules to be applied
are well settled, it is not easy to reconcile all their applications
in the various cases upon this subject. To make a confession
free and voluntary it must not have been induced by any
(i) 30 & 31 A'ict. c. 35, s. 6; 8 Edw. VII. c. 67, ss. 28. 29.
iii) R. V. Mitchell, [1892] 17 Cox, 503, where the witness became so much
worse during the cross-examination that the magistrate stopped the cros?-
examination ; the evidence was held to be inadmissible.
(I) R. V. Shurmer, [1886] 55 L. J. M. C. 153.
(to) R. v. Thompson, [1893] 2 Q. B. 12; 62 L. J. M. C. 93.
EVIDENCE. 399
threat or j)iomise of a temporal character, having reference
to the charge against the accused person, and proceeding from
a person in authority (n). If the inducement is merely of a
moral or religious character it will not exclude the confession,
and the chief difficulty is to determine whether in any
particular case such words as " You had better tell the truth "
were a mere moral exhortation or amounted to a promise of
temporal benefit (o). But an inducement will not render the
confession inadmissible unless it proceeds from a person in
authority; the prosecutor, officers of justice, magistrates, and
other persons in similar positions, are persons in authority (p) ;
but not the ])risoner's master, unless the crime or offence be
committed against him (q). Again, if a confession be made
after the impression produced by any inducement has been
completely removed, it is admissible (r). A confession or
admission made to a police-constable in answer to questions
put by him to the prisoner before, or even after, his arrest
and without any threat or inducement, is admissible (s).
Though a confession may be inadmissible, the fact that a
discovery was made in consequence of it is not (t).
(n) Archbold, 373.
(o) Compare, for example, R. v. Jarvis, [1867] L. R. 1 C. C. R. 96; 37 L.J.
M. C. 1; R. V. Rose, [1898] 67 L. J. Q. B. 289; 118 Cox, 717; R. v. Fennell,
[1881] 7 Q. B. D. 147; 50 L. J. M. C. 126; R. v. Reeve, L. R. 1 C. C. R.
362; 37 L. J. M. C. 92; R. v. Thompson, supra, and see Archbold, 373, 376.
(p) Archbold, 375.
(q) R. V. Moore, [1852] 2 Den. 522; 21 L. J. M. C. 199.
(r) R. V. Clewes, [1830] 4 C. & P. 221.
(s) Rogers v. Hawkin, [1898] 67 L. J. Q. B. 526 ; R. v. Best, [1909] 1 K. B.
692; 78 L. J. K. B. 658. Where there is evidence of an offence a police officer
is justified in questioning any person, whether suspected or not, from whom he
thinks that information can be obtained. But after a police officer has made
up his mind to charge a person he should not question him without cautioning
him that his answers may be given in evidence. But the fact that no caution
has been given does not appear to render a confession inadmissible (Archbold,
379). When a person is in custody a police officer ought not to question him.
Whether or not a statement obtained from a person in custody by a police
officer is admissible is a question which is not yet settled as a matter of law.
Logically the oiijection goes to the weight, not the admissibility, of the evidence.
As a matter of practice a Judge may in his discretion refuse to allow the state-
ment to be given in evidence, but if he allows proof of the statement the con-
viction will not be quashed unless there has been a substantial miscarriage of
justice; sec Ibrahim v. /?., [1914] A. C. 699; 83 L. J. P. C. 185, in which
all the authorities on this point are discussed.
it) R. V. Gould, [1840] 9 C. & P. 364.
400 EVIDENCE.
Subject to exceptions made by certain statutes (u) any
statement made by a person on oath, when being examined as
a witness, may be afterwards used against him on his trial
on a criminal charge, unless at the time of his examination he
objected to answer the questions on the ground that the
answers would tend to criminate him and yet was improperly
compelled to answer them (w).
A confession is admissible only against the person who
makes it, though of course, if the jury hear anything in it
against accomplices, it will be apt to prejudice them against
such co-defendants.
A statement made in the presence of the prisoner, accusing
him of crime, is admissible in evidence. But it is not in itself
any evidence of the facts stated; the only evidence for or
against the prisoner is his behaviour in answer to the charge.
It therefore creates evidence against him only (i) if it is
made upon an occasion when he might reasonably be expected
to make some explanation or denial, and (ii) if by his words
or conduct he acknowledges the truth of all or part of the
charge (.v). The mere fact that the prisoner denies the charge
does not render the statement inadmissible because his denial
may be made in such a manner that the jury may nevertheless
from his conduct and demeanour infer an acknowledgment,
or again his denial may be inconsistent with the defence set
up at the trial. The jury should, however, be told that in
the absence of anything from which an acknowledgment can
be inferred, they should disregard such a statement; and the
Judge may in most cases rightly use his influence to prevent
evidence of such statements being given when the eventual
value of the prisoner's conduct is very small, either for or
against him (i/).
(u) V. pp. 195, 229.
(w) Archbold, 372. As to confessions before the committing magistrate,
V. p. 299.
(x) R. V. Norton, [1910] 2 K. B. 496; 79 L. J. K. B. 756.
(y) R. V. Christie, [1914] A. C. 545; 10 Cr. Anp. R. 141. See "also R v.
Thompson, [1910] 1 K. B. 640; 79 L. J. K. B. 321; 102 L. T. 257; 74 J. P.
176, where a statement made by one of two prisoners jointly charged, and read
over to the other in the presence of both, was held admissible although the
other denied its truth.
EVIDENCE. 401
Strictly speaking, the rule against hearsay evidence applies
to cross-examination as well as to examination-in-chief,
though it is not so strictly applied in the former case. More-
over, questions which in examination-in-chief would be
inadmissible to prove the issue may in cross-examination be
admissible to test the credibility of a witness.
CIRCUMSTANTIAL AND PRESUMPTIVE EVIDENCE.
It is usual to distin-guish two kinds of evidence, Direct or
Circumstantial. By the former is meant the attestation
directly by witnesses, things, or documents of the principal
fact to be proved, or factum probandum, as, e.g., the evidence
of a person who testifies to having actually seen the com-
mission of the act constituting the alleged crime. All other
evidence is termed indirect, presumptive, or circumstantial;
being evidence of facts, from which the fact of the crime
may be inferred as a natural or very probable conclusion.
Thus, if a witness proves that he saw the prisoner cut A,'8
throat, or put his hand into B,'s pocket, draw out his purse,
and run away, the evidence is direct. But if the witness
proves that the prisoner was seen going to B,'8 house at four
o'clock, that there was no other person in the house at the
time, that at 4,15 B,'s throat was found cut, and that a blood-
stained knife was found concealed in the prisoner's locked
box, the evidence is circumstantial.
It is sometimes difficult to compare the effect of direct and
circumstantial evidence, and there is little advantage in
attempting to do so. It would certainly be incorrect to say
that direct is always stronger than circumstantial evidence.
It may be that in the former there is not the danger involved
in drawing the inferences which are incidental to the latter;
but, on the other hand, in the latter more facts are generally
put in evidence by a greater number of witnesses, and thereby
any mistake is more likely to be exposed.
Circumstantial evidence may be either conclusive, when
the connection between the principal and evidentiary facts
is a necessary consequence of the laws of nature; as in an
c,L, 26
402 EVIDENCE.
alibi; or presumptive, when it only rests on a greater or less
degree of probability. Such evidence is termed " pre-
sumptive," inasmuch as the fact to be proved is to be
presumed from certain other facts.
Presumptions of fact (facti or hominis), which are
inferences of fact, drawn from the existence of other facts,
must be distinguished from presumptions of law, which are
rules of law. The latter are : ■ —
i. Juris et de jure. — Presumptions of this character are
by law absolute, conclusive, and irrebuttable. No evidence
is allowed to be given to the contrary; for example, that
an infant under the age of seven is incapable of committing
a felony; that a male under fourteen years of age is
incapable of having carnal connection.
ii. Juris. — Presumptions which are conditional, incon-
clusive, and rebuttable. They only hold good until the
contrary is proved. For example, a child between the
ages of seven and fourteen is presumed to be incapable of
committing a felony but only till it is proved that he had
a mischievous. discretion. Malice is presumed from the act
of killing, unless its absence be shown.
So, also, there is a privia facie presumption that a person
is innocent until he is proved to be guilty, and sane until he
is proved to be insane.
WRITTEN EVIDENCE.
Written documents may be divided into three classes:
differing as to the manner in which they must be given in
evidence and proved : —
i. E-ecords.
ii. Matters quasi of record.
iii. Written documents of a private nature.
i. Records. — First, as to Acts of Parliament. Public
statutes do not need any proof; the Court is bound judicially
EVIDENCE. 403
to take notice of them. And all Acts passed since February 4,
1851, are to be taken as public Acts unless the contrary
be expressly provided (z). Private Acts must be proved by
an examined copy of the Parliament roll, or by a copy
purporting to be printed by the King's printers. As regards
proof, general customs of the realm are on the footing of
public Acts; particular customs must be proved (a).
As to other Records. — Inasmuch as the records of the
various Courts are frequently required to be given in evidence,
perhaps in two places at the same time, and thus inconvenience-v
would arise, as well as the danger of destruction or loss,
the production of the originals is not required. Their place
is supplied by an exemplification of the record under the
Great Seal (now seldom used) or an office copy, under the
seal of the Court, or by an examined copy, i.e., a copy sworn
to be true by a person who has compared it with the original.
But such last-mentioned copy will not suffice if the matter
of the record forms the gist of the pleading, e.g., on a plea of
autrefois acquit. A copy of a copy will never suffice.
Previous conviction may be proved in any legal proceeding
by producing a record or extract of such conviction, and by
giving proof of the identity of the person against whom the
conviction is sought to be proved with the person appearing
in the record or extract of conviction to have been convicted.
A record or extract in the case of an indictable offence
must consist of a certificate containing the substance and
effect only (omitting the formal facts) of the indictment and
conviction, and purporting to be signed by the clerk of the
Court or other officer having the custody of the records of the
Court by which such conviction was made, or by his deputy,
and in case of a summary conviction consists of a copy of the
conviction, purporting to be signed by any justice of the peace
having jurisdiction over the offence in respect of which such
conviction was made, or to be signed by the proper officer
of the Court by which such conviction was made, or by the
(z) 13 Sc 14 Vict. c. 21, ss. 7, 8.
(a) Archbold, 391.
404 EVIDENCE.
clerk or other officer of any Court to which such conviction
has been returned. And there is no need to prove the
signature or official character of the person whose signature
appears (h). By section 28 (1) of the Criminal Justice
Administration Act, 1914 (c), the record or extract may in
case of a summary conviction consist of a copy of the minute
or memorandum of the conviction entered in the register
required to be kept under section 22 of the Summary Juris-
diction Act, 1879, purporting to be signed by the clerk of the
Court by whom the register is kept.
ii. Matters quasi of record. — Without going into detail,
it may be said generally that the proceedings, not being
records, of any of the Divisions of the High Court may be
proved by office or examined copies; but upon a prosecution
for perjury in an affidavit, the original affidavit, if it exists,
must always be produced ; if it does not exist, proof of its
loss and secondary evidence of its contents may be given (d).
Proceedings in County Courts are proved by a copy of the
entry in the Court book, bearing the seal of the Court, and
purporting to be signed and certified as a true copy by the
registrar of the Court (e). In the case of proceedings in
other inferior Courts the proof is by producing the books in
which the entry has been made, or by an examined copy.
As to bankruptcy proceedings, a copy of the London Gazette,
containing any notice of a receiving order, or of an adjudica-
tion in bankruptcy, is conclusive evidence of the order or
adjudication (/).
iii. Written documents of a private nature. As to deeds. —
As a general rule, if they are to be given in evidence, they
must be produced themselves at the trial. But in case of
loss or destruction, the contents may be proved by copies
(h) 34 & 35 Vict. c. 112, s. 18.
(c) 4 & 5 Geo. v. c. 58.
(d) R. V. Milnes, [1860] 2 F. & F. 10.
(c) 51 & 52 Vict. c. 43, s. 28.
(/) 4 & 5 Gee. V. c. 59, s. 137. See also ss. 138—144 as to the proof of other
proceedings in bankruptcy.
EVIDENCE. 405
or other secondary evidence. And so also if other written
documents are lost, secondary evidence may be received, if
the genuineness of the original instrument is proved at the
same time, but if the document is in the possession of the
opposite party he must be served with notice to produce it
or evidence of its contents cannot be given (g). The notice
to produce must be given a reasonable time before the trial,
and it should be in writing.
The manner of the proof of the execution of deeds and
other written instruments is the same. If the instrument
is one to the validity of which attestation is requisite (h),
it must be proved by a subscribing witness. But to this
rule there are several exceptions; for example, if the witness
be dead, insane, or cannot be found (^). But if the instrument
is not one which requires attestation, even though it be
actually attested, it need not be proved by the attesting
witness (k), but may be proved by simple evidence of the
party's handwriting; and a deed or will which is thirty years
old is said to prove itself; that is to say, the execution of it
need not be proved at all provided that it is produced from
custody which affords a reasonable presumption in favour
of its genuineness, and that the deed does not on the face
of it appear suspicious, as, for example, by containing inter-
lineations or erasures (1).
Handwriting may be proved directly by calling the writer
or some person who saw him write the document in question.
It may also be proved indirectly in several ways (m).
i. By one who has seen the party write.
ii. By one who has carried on a correspondence with the
person whose writing it is desired to prove, or had other
opportunities of getting acquainted with his writing.
(g) R. V. Elworthy, [1867] L. R. 1 C. C. R. 103; and see also, as to notice
to produce, avte, p. 393.
(h) A list of these docaments will be found in Tayl. Ev. (10th ed.), ss. 1110,
et seq.
(t) V. Archbold, 43.
(fc) 28 & 29 Vict. c. 18, s. 7.
(I) Archbold, 430.
(m) Archbold, 432.
406 EVIDENCE,
iii. By comparison witli documents known and admitted
to be in the handwriting of the party. It is provided by
statute that comparison of a disputed writing with any
writing proved to the satisfaction of the Judge to be genuine
shall be permitted to be made by witnesses, and such writings,
and the evidence of witnesses respecting the same, may be
submitted to the Court and jury as evidence of the genuine-
ness or otherwise of the writing in dispute (n). The witness
need not be a professional expert in handwriting (o).
tt may be useful to notice the chief points in which
differences, exist between the application of the rules of
evidence in civil and criminal cases.
1. In the latter in some cases more than one witness is
required (p).
2. Confessions and admissions — in criminal cases, with
great caution, and only when they are free and voluntary;
in civil cases unreservedly (q).
3. A party to a civil cause gives his evidence just as an
ordinary witness, and can even be called as a witness for his
opponent. A prisoner, on the other hand, cannot be called
as a witness for the prosecution; and although he can now
in all cases give evidence on his own behalf, there are certain
special provisions which affect him as a witness (/■).
4. The wife (or husband) of a prisoner cannot in all cases
be called as a witness against him (s) ; whereas in a civil
action she may always give evidence for his opponent.
5. The use in criminal cases of the depositions of witnesses
prevented from attending in person (t) ; and their use to
contradict the witness at the trial itself (u). In civil actions
there is, however, the somewhat analogous process of
examining aged and infirm witnesses upon commission.
(n) 28 & 29 Vict. c. 18, e. 8.
(0) R. V. Silverlock, [1894] 2 Q. B. 765 ; 63 L. J. M C. 233.
(p) V. p. 375.
(g) V. p. 398.
(r) V. pp. 365, 366.
(s) V. p. 365.
(t) V. p. 397.
(a) V. p. 373.
EVIDENCE. 407
6. In cases of homicide, the dying declaration of the
deceased is admitted in evidence as to the cause of death {w).
7. Witnesses to good character are allowed in all criminal
cases, whereas in civil actions this is only permitted to
contradict evidence of bad character offered by the opposite
party, which evidence can only be given where the general
character of the party is one of the facts in issue in the
action.
The above refers only to the adTtiissihility of evidence {x).
But it must always be borne in mind that, while in civil
litigation evidence may be nicely balanced, and the jury-
have to decide to which side the balance inclines, the evidence
to be offered in support of a criminal charge must be of a.
much more cogent nature, and, to justify a conviction, must
satisfy the jury beyond any reasonable doubt that the accuseds
is guilty of the offence charged.
(to) V. p. 395.
(x) " The principles of the law of evidence are the same whether applied af
civil or criminal trials, but they are not enforced with the same rigidity against
a person accused of a criminal oflfence as against a party to a civil action.
There are exceptions to the law regulating the admissibility of evidence which
apply only to criminal trials and which have acquired their force by the con-
stant and invariable practice of Judges when presiding at criminal trials. Thev
are rules of prudence and discretion, and have become so integral a part of thil
administration of the criminal law as almost to have acquired the force of law. '
R. V. Christie, [1914] A. C, at p. 664.
CHAPTER XIV.
VERDICT AND JUDGMENT.
VERDICT.
We have already considered the province of the jury and
the opportunities afforded to them for considering their
verdict. In order to clear up any difficulties, they may ask
the opinion of the Judge on any point which is not exclusively
for their determination; or may have read over to them by
the Judge any part of the evidence; or through the Judge
in Court may ask any additional question of any witness.
If they cannot after a reasonable time agree upon their
verdict, they are discharged (a) ; the prisoner, of course,
being liable to be tried again. Before finding the prisoner
guilty, they must be unanimous in believing that there is
no reasonable doubt of his guilt, not necessarily that there is
no other possible explanation. If they do all agree on coming
into Court again, if they have retired, they answer to their
names. The clerk of assize, clerk of the peace, or other
officer, thus addresses them : " Gentlemen, have you agreed
upon your verdict? How say you, do you find John
Styles guilty or not guilty?" They deliver their verdict
through the foreman. In treason or felony the prisoner
must be present when this is done ; but not necessarily in
misdemeanour.
Verdicts in criminal cases must be distinguished into : —
General — i.e., "guilty" or "not guilty" on the whole
charge.
Partial — as when the jury convict on one or more counts
of the indictment and acquit on the rest.
(a) V. p. 355 as to discharge on account of death, &c., of juror.
VERDICT AND JUDGMENT. 409
Special — when the facts of the case as found by the jury-
are stated by them, but the Court is desired to draw the
legal inference from the facts — for example, whether they
amount to murder or manslaughter. But in such a case,
before the Judge can direct a verdict of guilty to be entered,
the jury must have found all the facts necessary to constitute
the offence. Where, for instance, a jury unable to agree
upon a verdict of guilty or not guilty in a case of larceny
stated in answer to the Judge that they believed all the
evidence for the prosecution, and the Judge thereupon
directed a verdict of guilty to be entered, the conviction was
quashed as the jury had not found expressly that the prisoner
had any animus furandi (6).
In every case the jury have a right to return either a
general or a special verdict, as thev may think fit (c). If,
however, the verdict is so imperfect that no judgment can
be given upon it. a new trial may be ordered {d).
The jury may acquit one of several defendants who are
joined in the same indictment and convict the others, and
vice versa; even though charged with jointly receiving (e).
But in cases where to constitute the crime it is necessary
that a certain number should joint in it, if so many are
acquitted that less than the requisite number are left, these
also must be acquitted — thus, three at least are necessary for
a riot, two for a conspiracy.
Verdict of lesser offence than charged in the indictTnent. —
At common law the prisoner may not be convicted of an
offence of a different character from that charged in the
indictment; he may not, e.g., be convicted of felony on an
indictment for misdemeanour, or vice versa. But he may at
common law be convicted of a less aggravated felony or mis-
demeanour than is charged, provided that the indictment
contains words apt to include both offences. Thus on an
indictment for murder he may be convicted of manslaughter,
(b) R. V. Famhorough, [1895] 2 Q. B. 484; 64 L. J. M. C. 270.
(c) Archbold. 209.
(d) Ibid. ; Campbell v. R., [1848] 11 Q. B, 799; 17 L. J. M. C. 89.
(c) 6 & 7 Geo. V. c. 50, s. 44.
410 VERDICT AND JUDGMENT.
on an indictment for robbery be may be convicted of larceny,
and upon an indictment for unlawful wounding be may be
convicted of a common assault (/). Tbe chief statutory
exceptions to tbe common law rule are as follows : —
A person charged witb felony or misdemeanour may be
found guilty of an attempt to commit tbe same offence (g),
tbe same consequences following as if be had been in tbe
first instance charged with the attempt only.
Upon an indictment for a misdemeanour, if tbe facts given
in evidence amount to a felony, the prisoner is not on that
account to be acquitted of tbe misdemeanour, and no person
tried for such misdemeanour shall be liable to be afterwards
prosecuted for felony on tbe same facts unless tbe Court
thinks fit to discharge the jury and to order tbe defendant
to be indicted for tbe felony (/?).
Upon an indictment for robbery, the prisoner may be found
guilty of an assault with intent to rob (i).
Upon an indictment for larceny, tbe prisoner may be found
guilty of eTnbezzlevient, and vice versa (k).
Upon an indictment for obtaining by false pretences, if
the offence turns out to amount to larceny the defendant may
be convicted of obtaining by false pretences, and upon an
indictment for larceny be may be convicted of obtaining by
false pretences (l).
Upon an indictment for felonj'- (except in the cases of
murder and manslaughter) alleging that the prisoner cut,
stabbed, or wounded any person, a verdict of guilty of
unlawful wounding may be found {m).
Upon an indictment charging any person with the murder
of a child, tbe jury may, if they acquit of the murder, convict
the prisoner of concealment of birth {n).
(/) Archbold, 204.
(g) 14 & 15 Vict. c. 100, s. 9.
(h) 14 & 15 Vict. c. 100, s. 12.
(i) 6 & 7 Geo. V. c. 50, s. 44, sub-s. 1.
(fc) Ibid. 8. 44, sub-s. 2.
(l) Ibid. s. 44, sub-ss. 3, 4.
(m) 14 & 15 Vict. c. 19, s. 6.
(n) 24 & 25 Vict. c. 100, s. 60.
VERDICT AND JUDGMENT. 411
Upon an indictment for rape or for any offence made
felony by section 4 of the Criminal Law Amendment Act,
1885 (as to which v. p. 157), the prisoner may be convicted of
the misdemeanours mentioned in sections 3, 4, or 5 of that
Act, or of an indecent assault (o).
Upon an indictment for rape, the jury may acquit of rape
but convict of incest, or attempted incest [p).
Upon an indictment for incest or attempted incest, the
jury may acquit of that offence and convict the defendant
of an offence against section 4 or section 5 of the Criminal
Law Amendment Act, 1885 {q).
Upon an indictment of any person over the age of sixteen
for the manslaughter of a child or young person under sixteen
of which he has had the custody or care, the jury may find
the accused guilty of one of the numerous forms of cruelty
to such person (r).
And, as we have seen (s), the prisoner may always plead
not guilty of the offence charged, but guilty of any other
offence of which he can be convicted upon the indictment.
If the Judge is dissatisfied with the verdict he may direct
the jury to reconsider it, and their subsequent verdict will
stand as a true one. If, however, the jury insist upon having
the first recorded it must be recorded (i).
When an indictment contains several counts it is often
advisable to take a separate verdict on each count, in case
objection should be taken to any particular count.
If a verdict of acquittal is returned, the prisoner is for
ever free from the present accusation; and he is discharged
in due course, unless there is some other charge against him.
If, however, he is acquitted merely on account of some
defect in the proceedings, so that the acquittal could not be
pleaded in bar of another indictment for the same offence (u),
he may be detained and indicted afresh. If the jury find that
(o) 48 & 49 Vict. c. 69, s. 9,
(p) 8 Edw. VII. c. 45, 8. 4.
(q) 8 Edw. c. 45, a. 4.
(f) 8 Edw. VII. c. 67, 8. 12, sub-s. 4. v. p. 180 et sea.
(«) V. p. 341.
(t) Archbold, 212.
(«) V. p. 346.
412 VERDICT AND JUDGMENT.
he was insane at the time he committed the offence, whether
such offence was a felony or misdemeanour (w), he must be
kept in custody until the King's pleasure be known; and the
King may order his confinement during his pleasure (a;).
If a verdict of guilty is brought in, the accused is said to
be convicted (y). The jury may annex to such a verdict a
recommendation to mercy on any grounds they think proper —
which recommendation will usually be taken into con-
sideration by the Judge.
If there is a second indictment against a prisoner who
has been found guilty, it is frequently not proceeded with
if the charge is similar to that on which he has just been
convicted. If the prisoner is acquitted, the second indict-
ment is then proceeded with, unless it is obvious that there
is no more evidence than in the first case.
If a prisoner indicted for any crime, i.e., any felony, or the
offence of uttering false or counterfeit coin, or of possessing
counterfeit gold or silver coin, or of obtaining goods or money
by false pretences, or of conspiracy to defraud, or of any
misdemeanour under section 28 of the Larceny Act, 1916 {z),
has been found guilty, then, if he has been previously con-
victed of any of the above crimes, he is asked whether he has
been so previously convicted, the previous conviction being
also alleged in the indictment. If he admits it, the Court
proceeds to sentence him. But if he denies it, or will -not
answer, the jury are then, without being again sworn,
charged to enquire concerning such previous conviction; the
point to be established being the identification of the accused
with the person so convicted {a). It must be noted that
where the crime is complete in itself and a previous con-
viction is charged merely in order to increase the power of
punishment it is charged in the indictment in a separate
iw) 46 & 47 Vict. c. 38, ss. 1, 2.
(x) T. p. 339, as to insanity at time of trial and not of commission of offence.
(j/) The word " conviction " is, however, not of very precise meaning, and is
sometimes applied to the sentence of the Court, as well as to the verdict of the
jury; see the judgment in R. v. Ireland, [19101 1 K. B. 654, 660; 79 L. J.
K. B. 338.
(z) v. p. 246.
(o) 24 & 26 Vict. c. 96, s. 116; 34 & 35 Vict. c. 112, ss. 9, 20.
VERDICT AND JUDGMENT. 413
count (h), the prisoner is in the first instance arraigned only
upon the count charging the subsequent crime, and the first
conviction must not be mentioned to the jury until the
prisoner has pleaded guilty or been found guilty of the
subsequent crime (c). If, however, the prisoner gives
evidence of good character, the previous conviction may be
proved during his trial, and in this case the jury enquire
into the previous conviction and the subsequent ofience at
the same time (d). And if the prisoner is charged under
B. 7 of the Prevention of Crimes Act, 1871, in which case
he can be found guilty of the " offence ^' charged only if he
has been twice previously convicted, the previous convictions
are an element of the complete offence, and must be given
in evidence to the jury on the trial for the subsequent
offence (e).
After the verdict has been given it is usual for a responsible
police officer to give the Court on oath the result of his
enquiries as to the prisoner's antecedents, with a view to assist
the Court in fixing the proper punishment (/).
JUDGMENT.
Before judgment, in cases of treason and felony, the
prisoner is asked whether he has anything to say why the
Court should not proceed to pass sentence upon him. This
is called the allocuUts and affords him an opportunity of
moving the Court in arrest of jndgvient. ■ This motion can
only be grounded on some defect apparent on the face of the
(b) V. p. 315.
(c) The same rules apply where the prisoner is charged with being a habitual
criminal (8 Edw. VII. c. 59, s. 10) or a habitual drunkard (61 k 62 Vict. c. 60,
B. 10); V. p. 315.
(d) 6 & 7 Will. rV. c. Ill; see also p. 219 as to the evidence of certain
previous convictions which may be proved on the trial of an indictment for
receiving.
(e) R. V. Penfold, [1902] 1 K. B. 547; 71 L. J. K. B. 306; for form of
indictment in such cases see Appendix A.
(/) For this purpose hearsay evidence is, in the first instance, admissible,
but if the prisoner disputes the truth of the oflBcer's statement the Judge will
either disregard such statement or require it to be strictly proved, R. v. Camp-
bell, 15 J. P. 216; 55 S. J. 273.
414 VERDICT AND JUDGMENT.
record, and not on any irregularity in the pioceeaings or on
the insufficiency of the evidence. The objection must be a
substantial one, such as want of sufficient certainty in the
indictment as to the statement of facts, or circumstances
constituting the offence. But judgment will not be arrested
if the defect has been amended during the trial or is such
a one as is aided by verdict. The Court itself will arrest
judgment if it is satisfied that the defendant has not been
found guilty of an offence in law. If judgment is arrested,
the proceedings are set aside, and the prisoner is discharged.
But, unlike an ordinary acquittal, the defendant may be
indicted again on the same facts [g).
Judgment may be postponed if the Court wishes to reserve
any point of law for the consideration of the Court of Criminal
Appeal.
If the defendant has been found guilty of a misdemeanour
in his absence (in felonies he must be present), process issues
to bring him up to receive judgment; and on non-appearance
he may be prosecuted to outlawry (/i). If he has been allowed
to leave the Court on entering into recognisances to come up
for judgment when called upon, and he fails to come up,
his recognisances will be forfeited and a warrant issued for
his apprehension.
Judgment or sentence is given by the Court, the Judge
adding such remarks as he thinks proper. Formerly, in all
capital felonies, when the Court thought that the person
convicted was a fit subject for royal mercy, it was lawful,
instead of publicly giving sentence of death, to enter it on
the record, the effect being the same {i). But now sentence
of death must be pronounced on conviction for murder [k).
(g) Archbold, 217.
(h) V. p. 333.
(i) V. 4 Geo. IV. c. 48. a. 1.
(k) 24 & 25 Vict. c. 100, s. 2.
CHAPTER XY.
INCIDENTS OF TRIAL.
Some miscellaneous points connected with a criminal trial
remain to be noticed, now that we have viewed the general
order of proceedings.
Defence of Poor Prisoners. — It is provided bv the Poor
Prisoners' Defence Act, 1903 {a), that where it appears,
having regard to the nature of the defence set up by any
poor prisoner, as disclosed in the evidence given or state-
ment made by him before the committing justices (6), that
it is desirable in the interests of justice that he should have
legal aid in his defence, and that his means are insufficient
to enable him to obtain it, the committing justices or the
Judge at the trial may certify that the prisoner ought to
have such legal aid, and he shall thereupon have a solicitor
and counsel assigned to him. In such cases the expenses
of the defence and the fees of the solicitor and counsel
are to be paid in the same manner as the expenses of a
prosecution [c).
View of locus in quo by the jury. — The Judge may allow
the jury to view the scene of the crime or other occurrence
under investigation, at any time during the trial, even after
the summing-up. But care should be taken that no improper
communications are made at the view; and that no evidence
(a) 3 Edw. Vn. c. 38.
(b) This has been held to prevent the application of the Act unless it appears
upon the depositions that the prisoner has pledged himself to some definite line
of defence when before the committing justices, v. Archbold, 171.
(c) 8 Edw. VII. c. 15, 8. 1 (3).
416 ^ INCIDENTS OF TRIAL.
is received by the jury in the absence of the Judge and the
prisoner [d).
Withdrawal from ijrosecution. — Sometimes the prosecution
is desirous of withdrawing from the prosecution, and if the
offence is a misdemeanour more immediately affecting the
individual, e.g., a battery, the Court may allow the prosecu-
tion to be withdrawn; but this will probably not be the
case if the offence is a felony or a misdemeanour of a more
public nature (e).
The Attorney-General, as representing the Crown, has
always the right at any time before judgment to enter a
nolle 'prosequi, whether the prosecution is being carried on
at the instance of a private person or not (/). In that case
the whole of the proceedings are at an end, although the
defendant is liable to be again indicted.
Restitution of goods. — In certain cases the Court has power
to order goods which have been stolen or fraudulently
obtained to be given up to the original owner. This power
now depends upon section 45 of the Larceny Act, 1916 {g).
By this section it is provided that if any person guilty
of a felony or misdemeanour mentioned in that Act in
stealing, obtaining, extorting, embezzling, converting, or
disposing of, or in knowingly receiving any chattel, money,
valuable security, or other property is prosecuted to con-
viction by or on behalf of the owner of the property and
convicted thereof [h], the property shall be restored to the
owner and the Court before whom the offender is tried shall
have power to order the restitution of the property in a
summary manner. But when goods as defined in the Sale of
id) R. V. Martin, [1872] L. E. 1 C. C. E. 378; 41 L. J. M. C. 113.
(e) RawUngs v. Coal Consumers' Association. [1873] 43 L. J. M. C. Ill;
Windhill Local Board v. Vint, [1890] 45 Ch. D. 351; 59 L. J. Ch. 608; and
see ante, p. 78.
(/) R. V. Allen, [1862] 1 B. & S. 850; 31 L. J. M. C. 129.
(g) 6 & 7 Geo V. c. 50.
(h) This includes a summary conviction for an indictable offence (42 & 43
Vict. c. 49, 8. 27). Also where a probation order is made by a Court of sum-
mary jurisdiction (post, p. 465) the order for the purposes of revesting stolen
property and making restitution has the same effect as a conviction (7 Edw. VII.
c. 17, s. 1 (4)).
INCIDENTS OF TRIAL. 417
Goods Act, 1893, have been obtained by fraud or other wrong-
ful means not amounting to larceny, the property in such
goods shall not revest in the person who was the owner
of the goods or his personal representative by reason only
of the conviction of the offender. And nothing in the section
shall apply to any valuable security which has been in good
faith paid or discharged by some person or . body corporate
liable to the payment thereof, or, being a negotiable
instrument, has been in good faith taken or received by
transfer or delivery by some person, &c., for a just and
valuable consideration without any notice or reasonable cause
to suspect that the same had been stolen. On the restitution
of any stolen property, if it appears to the Court by the
evidence that the offender has sold the stolen property to
any person who had no knowledge that it was stolen and
that any money was taken from the offender on his appre-
hension, the Court may, on the application of the purchaser,
order him to be paid out of such money a sum not exceeding
the proceeds of the sale.
It is desirable to point out shortly what are the rights of
an owner of goods which have been stolen from him, or
obtained from him by false pretences. If they have been
stolen, he may retake them wherever he finds them [i), as
the goods are still his; with this exception, that, if the
goods have since the theft been sold in marA-et overt to a
bona fide purchaser, the person from whom they were stolen
cannot recover them from the purchaser (k), unless he first
prosecutes the thief and obtains his conviction. If he does
so obtain a conviction, the property in the goods is, by
force of section 45 of the Larceny Act, 1916, revested in
him and he can either apply for an order of restitution under
that section or bring an action to recover possession of the
(0 Blades v. Higgs, [1861] 10 C. B. N. S. 713; 30 L. J. C. P. 347.
(k) 56 & 57 Vict. c. 71, s. 22. Market overt includes all markets established
by grant or prescription, though probably not a market established by a local
Act. Moreover, all shops in the City of London are market overt for the sale
of goods usually sold in such shops. 2 Bl. 449; Hargreaves v. Spink, [1892]
1 Q. B. 25; 61 L. J. Q. B. 318; Clayton v. Le Roy, [1911] 2 K. B. 1031; 81
L. J. K. B. 49.
C.L. 27
418 INCIDENTS or TRIAL.
goods (1). This, which has for many years been the law
on the subject, was also previously enacted by the Larceny
Act, 1861, and by the Sale of Goods Act, 1893 (m), which
provides that where goods have been stolen, and the offender
is prosecuted to conviction, the property in the goods so
stolen revests in the person who was the owner of the goods,
notwithstanding any intermediate dealing with them by sale
in market overt or otherwise.
When, however, goods are obtained by false inetences
the right to the goods depends upon different considerations.
The original owner is still entitled, as in the case of larceny,
to retake them from the person who fraudulently obtained
them, or from any person who holds them on his behalf (n).
Moreover, before the Sale of Goods Act, 1893 (o), if he
obtained a conviction of the fraudulent person, he could
have recovered them from a bona jide purchaser, who had
bpught them from him, as it was held that the effect of
the provisions of the Larceny Act, 1861, was that, upon and
by reason of the conviction, the property in the goods revested
in the prosecutor. But this hardship upon an innocent
purchaser was remedied by section 24 (2) of the Sale of
Goods Act, 1893, now re-enacted by section 45 of the Larceny
Act, 1916, which provided, that notwithstanding any enact-
ment to the contrary (/>), where goods have been obtained
by fraud or other wrongful means not amounting to larceny,
the property in such goods shall not revest in the person who
was the owner of the goods by reason only of the conviction.
This section, however, will not apply to cases where there
never has been any contract between the prosecutor and the
fraudulent person passing the property, as where the fraud
consists in a representation by the latter that he is some other
person to whom the prosecutor really intended to sell his
goods {q) ; nor to cases where the goods have been obtained
by some trick amounting to larceny. In such cases the owner
{I) Scattergood v. Sylvester, [1850] 15 Q. B. 506 ; 19 L. J. Q. B. 447.
(m) 56 & 57 Vict. c. 71, s. 24 (1).
(n) In re Eastgate, [1905] 1 K. B. 465; 74 L. J K. B. 324.
(o) 56 & 57 Vict. c. 71, s. 24 (1).
■ (p) i.e., 8. 100 of the Larceny Act, 1861.
(q) As in Cumly V. Lindsay, [1878] L. R. 3 A. C. 459 ; 47 L. J. Q. B. 481.
INCIDENTS OF TRIAL. -119
never, in fact, parts with his property in the goods, as he
does in the case of a sale even if it be brought about by-
fraud; he claims them, therefore, by his original title as
owner and not *' by reason only " of a revesting upon the
conviction (r). It must, however, always be borne in mind
that if once a real contract of sale actually existed, although
it might have been induced by fraud and therefore be
voidable at the option of the party defrauded, yet the contract
was not originally void; and if possession of the goods is
obtained under such a contract by the fraudulent person,
and they are then sold or pledged with an innocent person
before the contract is avoided, the original seller cannot
recover them {a), and the fact of a conviction following will
not now affect the bona fide purchaser's or pledgee's rights.
In cases in which there is power to order restitution, such
an order can only be made against a person actually in
possession of the goods at the time of the conviction. It
cannot be made against a purchaser who has sold them again
before the conviction, even with notice of the theft (f). The
Court may have power in such a case to order restitution
of the proceeds of the goods, but that power ought not to be
exercised unless such proceeds are in the hands of the
convicted person or his agent (m).
By the terms of section 45 of the Larceny Act, an order
of restitution cannot be made for the delivery up of
negotiable secvrities (bills, cheques, &c.) in the hands of an
innocent third party. With regard to money, if it is found
on the thief an order for restitution can be made, but if ft
has been paid away by the thief to an innocent person for
valuable consideration as ciirrencxj, it cannot be followed by
(r) V. R. V. Walker, [1901] 66 J. P. 729.
(s) 56 & 57 Vict. c. 71, ss. 23. 25; v. Payne v. Wilson, [1895] 1 Q. B. 653;
64 L. J. Q. B. 328; the judgment in this case was, by consent, reversed on
appeal ([1895] 2 Q. B. 537), but only on the ground "that there was in law
no agreement to buy. The conviction in that case was for larceny as a bailee,
but the Court held that even a conviction for larceny would not defeat the title
acquired by an innocent purchaser, under s. 9 of tlio Factors Act, 1889, which
is in the same terms as s. 25, sub-s. 2 of the Sale of Goods Act, 1893
(t) Norwood V. Smith. [1788] 2 T. R. 750.
(«) R. V. Justices of the Central Criminal Court, [1886] 17 Q. B D 598-
56 L. J. M. C. 25. • • .
420 INCIDENTS OF TRIAL.
an order of restitution even if the coins can be identified.
But if the coins have really been sold as curiosities (as, e.g.,
a £5 piece) and have not been paid away as currency, the
Court has jurisdiction to make an order of restitution {w).
It is entirely in the discretion of the Court whether it will
make an order of restitution or not [x), and if the order be
refused the prosecutor still has his remedy by action if the
legal property in th6 goods is still vested in him [y). If
there is a question of law as to the rights of the parties,
the Court usually declines to interfere, and leaves the
prosecutor to bring an action.
The Court before which a prisoner is tried has no power,
as a rule, to order property not forming or connected with
the subject of the indictment, although found on the prisoner,
to be disposed of in a particular manner [z). But an
exception to this is made by section 45 of the Larceny Act,
1916 (re-enacting an earlier statute (a)), which provides for
the repayment of an innocent purchaser out of money found
on the prisoner (h).
Where any property has come into the possession of the
police in connection with any criminal charge, or has been
stopped by a pawnbroker or other person under section 103
of the Larceny Act (c) or section 34 of the Pawnbrokers Act,
1872, a Court of summary jurisdiction may, on application
by an officer of police or by a claimant of the property, make
an order for the delivery of the property to the person
appearing to the magistrates to be the owner, or, if the owner
cannot be ascertained, make such order as to the property
as to the Court shall seem meet [d).
(w) Ibid.
(x) Vilmont v. Bentley, [1886] 18 Q. B. D., at p. 327.
(y) Scattergood v. Sylvester, [1850] 15 Q. B. 506; 19 L. J. Q. B. 447.
(z) R. V. Corporation of London, [1858] 27 L. J. M. C. 231; E. B. & E. 509.
As to the power of a Court of summary jurisdiction to order property taken
from a person charged before such Court to be returned to him, v. 42 & 43 Vict.
c. 49, s. 44.
(a) 30 & 31 Vict. c. 35, s. 9.
(b) Ante, p. 417.
(c) See also 6 & 7 Geo. V. c. 50, s. 41.
id) 60 & 61 Vict. c. 30, s. 1.
INCIDENTS OF TEIAL. 421
If tlie stolen property lias heen 'pawned for not more than
£10 the Court may order the delivery thereof to the owner,
either on payment to the pawnbroker of the amount of the
loan or of any part thereof, or without payment of any part
thereof, as the Court, according to the conduct of the owner
and the other circumstances of the case, thinks just and fit (e).
A Metropolitan police magistrate has also power to order
delivery up of goods, under the value of £15, unlawfully
detained within the limits of the Metropolitan Police
District (/).
(c) 35 & 36 Vict. c. 93. s. 30. As to the Metropolis, v. 2 & 3 Vict. c. 71.
88. 27, 28. See also p. 443 as to compelling a convicted felon to make compen-
sation to a person who has lost his property by reason of the felony ; and
p. 423 as to compensation under the Probation of Offenders Act, 1907.
(/) 2 & 3 Vict. c. 71, s. 40.
CHAPTEE XVr.
PUNISHMENT.
The object of the sentence is to prescribe the punishment.
In almost every case the law, whether common law or
statute law, which assigns the punishment, gives the Judge
a certain latitude as to its amount. Though he is restricted
as to the maximum, in almost every case he can give as
little as he pleases, the minimum punishments, which were
formerly provided for many felonies, having been abolished
by statute (a). On conviction for treason or murder, however,
sentence of death must be passed (b).
We may notice here that if the prisoner is found guilty of
several distinct offences on different counts or indictments,
he may be sentenced to several terms of imprisonment:
which terms may be either ordered to be concurrent, as is
more usually the case, or the second to commence at the
expiration of the first (c). When a sentence for felony is
passed on a person already suffering imprisonment for another
crime, the Court may order the imprisonment for the
subsequent offence to commence at the expiration of the
former term (d).
It not infrequently happens that after a person has been
convicted on indictment the Court is informed that there are
other charges pending against him in respect of which he has
not yet been indicted. If the prisoner admits these other
charges, and the authorities responsible for prosecuting them
consent, the Judge will usually (if the prisoner so desires)
(a) 9 & 10 Vict. c. 24; v. also 54 & 55 Vict. c. 69, s. 1.
(b) V. p. 261 for two other offences which remain capital
(c) R. V. Castro, [1880] 5 Q. B. D. 490.
(d) 7 & 8 Geo. IV. c. 28, s. 10; but v. p. 450.
PUNISHMENT. 423
take them into consideration in sentencing the prisoner for
the crime for which he has been convicted (e), in order that
upon his release from prison he may not be subject to further
prosecutions.
It is provided by the Probation of Offenders Act, 1907 (/)»
that where any person is convicted on indictment of any
offence punishable with imprisonment, the Court may, having^
regard to his character, antecedents, age, health, or mental
condition, or to the trivial nature of the offence, or the
extenuating circumstances under which it was committed,
instead of sentencing him to imprisonment, make an order
discharging him conditionally on his entering into a
recognisance, with or without sureties, to come up for sentence
if called upon within any time not exceeding three years,
and to be of good behaviour.
The Court may also in such a case direct the offender to pay
damages for injury or compensation for loss (not exceeding in
the case of a Court of summary jurisdiction £10, unless a
higher limit is fixed by any enactment relating to the offence)
and reasonable costs. Payment of such damages or costs
may, however, be ordered to be made by the parent or
guardian of the offender [g).
A Court of summary jurisdiction is given similar powers
by the Act and may, without proceeding to conviction, either
(i) dismiss the information or charge or (ii) discharge the
offender conditionally upon his entering into a recognisance
as above stated {h).
Probation orders. — A recognisance order made under the
Act may contain a condition that the offender shall be for a
specified period under the supervision of some person named
in the order, and may also contain such additional conditions
as to residence, abstention from intoxicants, and any other
matters as the Court may, having regard to the circumstances
(e) See R. v. McLean, [1911] 1 K. B. 332.
(/) 7 Edw. VII. c. 17, s. 1. Bub-8. 2.
(g) 8 Edw. VII. c. 67, s. 99, sub-s. 1; v. p. 428.
(/i) Ibid. s. 1, 8iib-s. 1.
424 PUNISHMENT.
of the case, consider necessary for preventing the repetition
of the offence or the commission of other offences (i).
Moreover, in order that some control may be maintained
over persons who have entered into such recognisances,
probation officers may be appointed in any petty sessional
division whose duty will be to visit or receive reports from a
person bound by recognisance, to see that he observes its
conditions, to report to the Court as to his behaviour, and to
•assist him and endeavour to find him suitable employment (Ic).
If he fails to observe the conditions of his recognisance he
may be arrested on warrant and sentenced for his original
offence (Z),
The punishments which the law prescribes are the
following : —
Death; Penal Servitude; Imprisonment; Fine.
Incidental to the imprisonment are sometimes
Hard Labour; Whipping.
In addition to other punishment there is power in certain
cases to order that the person convicted be under police
supervision for a certain time ; and a person who is convicted
of being an habitual criminal may be sentenced to " preventive
detention."
Again, in some cases the ends of justice are attained by
requiring the prisoner to enter into recognisances to come up
for judgment if called upon; which generally means that if
he conducts himself with propriety he will hear nothing more
of the matter.
The prisoner may also be required to find sureties to keep
the peace, and be of good behaviour.
Youthful offenders, under certain circumstances, may be
sent to reformatories or industrial schools.
Criminal habitual drunkards may under certain circum-
stances be ordered to be detained in inebriate reformatories.
(i) 7 Edw. VII. c. 17, s. 2: 4 & 5 Geo. V. c. 58, s. 8.
(A:) 7 Edw. VII. c. 17 ; an ofiQcer of an approved society whose object is the
care of youthful offenders on probation may be appointed as probation officer.
Ibid. s. 9.
(1) Ibid. s. 6.
PUNISHMENT. 425
Special provision has also been made for the expulsion
from the country of aliens who have been convicted of crime.
Each of the above-named sanctions of the law will in turn
receive a brief notice.
Death. — This is the only punishment which can be awarded
in treason and murder. And it cannot be awarded in any
other case (m) except piracy with violence, or the crimes of
setting fire to His Majesty's vessels of war, or military or
naval stores, or to ships, &c., in the Port of London (n).
Sentence of death cannot be pronounced or recorded against
any person under sixteen years of age, but in lieu of such
a sentence the Court must sentence such person to be detained
during His Majesty's pleasure, and he will then be liable to
be detained in such place and under such conditions as a
Secretary of State may direct (o).
An execution for murder must take place within the walls
of the prison in which the offender is confined at the time (p).
The criminal is usually executed about three weeks after his
sentence. The sentence cannot in any case be executed until
after the expiration of the time, viz., ten days, within which
notice of appeal, or of an application for leave to appeal,
may be given; if such notice be given, the appeal or applica-
tion must be heard with as much expedition as is practicable,
and the sentence will not be executed until after the appeal
has been heard and finally refused (</).
Execution is carried out by the sheriff or his deputy, thus
giving effect to the sentence of the Judge. It is the usage
for the Judge, at the end of the assizes, to sign the calendar
containing the prisoners' names and sentences. This is left
to the sheriff as his warrant and authority, and, if he receive
no special order to the contrary, he executes the judgment
therein contained.
(m) i.e., by an ordinary Court of criminal jurisdiction, but as to the power
of courts-martial to pronounce sentence of death in certain cases of mutiny and
desertion, v. p. 48.
(n) As to these offences, v. p. 261. As to recording sentence, v. p. 414.
(o) 8 Edw. VII. c. 67. s. 103.
(p) 31 & 32 Vict. c. 24, s. 2
{(l) 7 Edw. VII. c. 23, s. 7, sub-s. 2.
426 PUNISHMENT,
Penal Servitude. — This mode of punishment was introduced
in substitution for transportation beyond the seas in certain
cases by 16 & .17 Vict. c. 99, and totally superseded the
sentence of transportation by 20 & 21 Yict. c. 3. It was
placed generally on the same footing as the latter punish-
ment : thus, any person who might formerly have been
sentenced to transportation is now liable to be kept in penal
servitude for the same period; and any person who might
have been sentenced either to transportation or imprisonment
may now be sentenced either to penal servitude or imprison-
ment, but in cases where before the Act sentence of seven
years' transportation might have been passed, the Court may
now pass sentence of not less than three years' penal
servitude (r).
Persons sentenced to penal servitude may, however, still
be confined in any prison in the United Kingdom, or in His
Majesty's Dominions beyond the seas, as a Secretary of State
may direct [s).
Penal servitude cannot be imposed except by statute.
Where no term is fixed by a particular statute the following
rules apply (t) : —
(i) Where under any enactment in force on August 5,
1891, an offence is merely declared to be felony and no
punishment is specially provided, the maximum sentence is
seven years' penal servitude.
(ii) Where under any such enactment an offence is
declared to be punishable with penal servitude, the maximum
sentence is five years' penal servitude, unless a greater period
is authorised by the enactment.
(iii) The minimum sentence of penal servitude is three
years.
Penal servitude for life may be awarded whenever a person
is convicted of any felony (not punishable with death and
(r) 20 & 21 Vict. c. 3, s. 2 ; 54 & 55 Vict. c. 69, s. 1.
is) 16 & 17 Vict. c. 99, s. 6; 20 & 21 Vict. c. 3, s. 3; the powers given by
these sections are not, however, exercised.
(t) 7 & 8 Geo. IV. c. 28, ss. 8, 11 ; 20 & 21 Vict. c. 3, s. 2 ; 54 & 55 Vict. c. 69,
s. 1, sub-s. 1. The provisions of the last-named Act must be read into any provi-
sions of the Criminal Law Consolidation Acts, 1861. See also Archbold, 230.
PUNISHMENT. 427
not being simple larceny) after a previous conviction for
felony (w).
A child or young person under sixteen cannot be sent to
penal servitude for any offence (iv).
Imprisonment. — Imprisonment or fine or both was the
common law punishment for misdemeanours. At common
law there was no limit to the term which might be inflicted.
With regard to statutory offences, the usual term is two
years, and wherever penal servitude may he aicarded, the
Court may, unless some Act passed after 1891 otherwise
provides, instead of penal servitude award punishment for
any term not exceeding two years, with or without hard
labour {x).
Imprisonment without hard labour may be awarded for
any common law misdemeanour or for any statutory mis-
demeanour for which no specific punishment is prescribed.
A child under fourteen cannot be sentenced to imprison-
ment for any offence or committed to prison in default of
payment of a fine, damages, or costs {y), nor can a young
person between the ages of fourteen and sixteen unless the
Court certifies that he is of so unruly a» character that he
cannot be detained in a place of detention provided under the
Children Act, 1908, or that he is of so depraved a character
that he is not a fit person to be so detained [z).
Imprisonment w^ith hard labour can be imposed only by
statutory authority, e-g-, under 54 & 55 Vict. c. 69, s. 1 (2)
or the statute dealing with the offence. But whenever a
person convicted by any Court of an offence is sentenced to
imprisonment without the option of a fine, the imprisonment
(«) As to penal servitude for life for coinage offences after previous convic-
tions, V. ante, p 51. As to the amount of penal servitude for larceny after
previous convictions, v ante, p. 210.
(tc) 8 Edw. VII. c. 67, s. 102. As to the punishment of children, v. p. 435.
(x) 54 & 55 Vict. c. 69, s. 1, sub-s. 1. This section does not as a matter of law
apply to offences for which penal servitude could not be awarded and for which
a longer imprisonment is authorised by statute. There are, however, very few
of such offences, and in practice two years is the maximum term of imprison-
ment.
(y) 8 Edw. VII. c. 67, s. 102.
(z) 8 Edw. VII. c. 67, s. 102. As to punishment of young persona, tee post,
p. 435.
428 PUNISHMENT.
may be either with or without hard labour, notwithstanding
that the offence is an offence at common law or that the
statute under which the sentence is passed does not authorise
the imposition of hard labour or requires the imposition of
hard labour. The only exception to this is where the im-
prisonment is for non-payment of a sum of money adjudged
lo be paid, when it must be without hard labour (a).
Fines. — A fine is never inflicted for a felony without
statutory authority (6). But at common law it may be
inflicted as the whole or part of the punishment for a mis-
demeanour, and there is no limit to its amount except the
provisions of Magna Charta and the Bill of Rights against
excessive fines. A discretionary power to fine in addition
to or in lieu of other punishment is given in each of the
Criminal Law Consolidation Acts and in the Forgery Act,
1913 (c) and the Larceny Act, 1916 (d).
Where a child or young person under sixteen years of
age is charged before any Court with an offence which the
Court thinks may best be met by the imposition of a fine,
damages, or costs, the Court may in any case, and must
if the defendant is a child under foiirteen, order that the
fine, damages, or costs be paid by the parent or guardian
of the child unless it is satisfied that the parent or guardian
cannot be found or that he did not conduce to the com-
mission of the offence by neglecting to exercise due care
of the child, and such an order may even be made without
convicting the defendant if the Court thinks that the charge
is proved. The parent or guardian may also be ordered to
give security for the good behaviour of the offender (e).
Whipping.— ^o person can be whipped otherwise than
under a statutory enactment and no person can be whipped
(a) 4 & 5 Geo. V. c. 58, s. 16.
(6) As, e.g., for manslaughter (24 & 25 Vict. c. 100, s. 5, and under the
Probation of Offenders Act, 1907 (v. p. 423).
ic) 3 & 4 Geo. V. c. 27, s. 12, sub-s. 2 (a).
id) 6 & 7 Geo. V. c. 50, s. 37, sub-s. 5 (a).
(e) 8 Edw. VII. c. 67, s. 99. The parent or guardian has a right of appeal
to the Court of Criminal Appeal or to Quarter Sessions as the case may he, ibid.
rUXISHMENT. 429
more than once for the same offence (/). Two classes of
cases in which whipping is allowed must be distinguished :
(i) of males below the age of sixteen; (ii) of males of any
age. A female can now in no case be whipped, though at one
time such a sentence was a common one.
i. Males under sixteen may be whipped under several
sections of the Larceny Act, 1916, the Malicious Damage Act,
1861, the Offence^ Against the Person Act, 1861, and section 4
of the Criminal Law Amendment Act, 1885, The number of
strokes and the instrument with which they are to be inflicted
must be specified by the Court in the sentence (g).
ii. Males of any age may be whipped under a number of
statutory provisions, of which the most important are those
contained in
Section 23 (1) of the Larceny Act, 1916— Robbery,
Assault with intent to rob, &c. (v. p. 227).
Section 21 of the Offences against the Person Act, 1861 —
Attempting to choke, suffocate, &c., with intent to commit
an indictable offence (v. p. 175). In this and the preceding
case the number of strokes, &c., must be specified: if the
offender is not over sixteen the number of strokes must not
exceed 25 and the instrument must be a birch rod; in other
cases the number of strokes must not exceed 50.
Section 3 of the Criminal Law Amendment Act, 1912 —
providing that whipping may be awarded for offences against
section 2 of the Criminal Law Amendment Act, 1885 —
Procuration (v. p. 159).
Section 7 (5) of the Criminal Law Amendment Act, 1912 —
Offences against the Vagrancy Act, 1898 (v. p. 129). In this
and the preceding case there are similar provisions as to
specifying the number of strokes, &c.
Police Supervision. — When any person is convicted on an
indictment of a crime (h), and a previous conviction of a
(/) 4 & 5 Geo. V. c. 58, s. 36.
(g) 6 & 7 Geo. V. c. 50. s. 37, sub-s. 6 ; 24 & 25 Vict. c. 97, a. 75 : c. 100. s. 70 :
48 k 49 Vict. c. 69, s. 4. As to the whipping of children by the sentenc" of
a Court of summary jurisdiction, v. post, p. 454.
(Jt) V. p. 412.
430 PUNISHMENT.
crime is proved against liim, the Court may, in addition to
any punishment, direct that he is to be subject to the super-
vision of the police for a period of seven years or less (i).
The consequence of such sentence is that the person to be
supervised must notify from time to time the place of his
residence and any change of residence to the police. If a
male he must report himself to the police personally or by
letter, as required, once a month. If he offends against these
regulations, he is subject to imprisonment with or without
hard labour for a term not exceeding one year, unless he can
show that he did his best to act in conformity with the
law (Jc). He may be arrested without warrant by a constable
who reasonably suspects him of having committed any
offence (l). .
Persons twice convicted of crime. — When any person is
convicted on indictment of a crime and a previous conviction
of a crime is proved against him he is, at any time within
seven years after the expiration of the sentence passed on
him for the last of such crimes, or if the sentence is one
of penal servitude, then also whilst at large on licence under
that sentence, liable to imprisonment, with or without hard
labour, for a term not exceeding one year.
(i) If, on being charged by a constable with getting his
livelihood by dishonest means and being brought before
a Court of summary jurisdiction, it appears that there
are reasonable grounds for believing that he is getting
his living by dishonest means; or
(ii) If, on being charged with any offence punishable on
indictment or summary conviction, and, on being
required by a Court of summary jurisdiction to give his
name and address, he refuses to do so, or gives a false
name or address; or
(i) 34 & 35 Vict. c. 112, s. 8.
(k) 34 & 35 Vict. c. 112, s. 8; 42 & 43 Vict. c. 55, s. 2 ; 54 & 55 Vict. c. 69,
8. 4. The same regulations, with the same punishment on their breach, apply
to convicts at large on licence, post, p. 449
(I) 54 & 55 Vict. c. 69, s. 2.
PUNISHMENT. 431
(iii) If he is found in any place, public or private, under
circumstances which satisfy the Court before whom he
is brought that he was about to commit or to aid in
the commission of any offence punishable on indictment
or summary conviction or was waiting for an opportunity
to commit, &c., such an offence; or
(iv) If he is found on any premises without being able
to account to the satisfaction of the Court before whom
he is brought for being found on such premises.
In cases (i), (iii), and (iv), he may be arrested by a
constable without warrant, provided in case (i) that the
constable has authority from the chief police officer of the
district. In case (iv) he may also be arrested without warrant
by the owner of the property on which he is found (w).
Habitual CriTninals. — Where a person is convicted on
indictment of a crime (n), and the jury find that he is a
habitual criminal, and the Court passes sentence of penal
servitude, the Court may also, if it is of opinion that by
reason of the prisoner's criminal habits and modes of life
it is expedient for the protection of the public that he should
be kept in detention for a lengthened period, pass a further
sentence of preventive detention not exceeding ten nor less
than five years, to commence on the determination of his
sentence of penal servitude (o). A prisoner cannot, however,
be found by the jury to be a habitual criminal unless it is
proved : (1) That since he was sixteen years of age he has
at least on three previous occasions been convicted of a
" Crime " (defined as above stated) and that he is leading
persistently a dishonest or criminal life, or (2) that he has
been previously convicted of being a habitual criminal and
sentenced to ])reventive detention (p). He must be charged
(m) 34 & 35 Vict. c. 112, s. 7 ; 54 & 55 Vict. c. 69, s. 6. If brought before
a Court of summary jurisdiction the accused may elect to be tried on indict-
ment, 42 & 43 Vict", c. 49, s. 17. See post, p. 453.
(n) V. p. 412.
(o) 8 Edw. VII. c. 59, s. 10 (the Prevention of Crimes Act. 1908).
(p) Ibid. The three convictions, which must be proved strictly, may theni-
selves in a proper case be sufficient to entitle the jury to find that the prisoner
is leading persistently a dishonest or criminal life (R. v. Waller, [1910]
1 K. B. 3(54; 74 J. P. 81 ; 3 Cr. App. R. 213); but where a substantial period
432 PUNISHMENT. ,
in the indictment with being a habitual criminal, and after
he has been convicted of the principal offence he must be
separately tried on that count; a count of this kind cannot
be added without the consent of the Director or Assistant
Director of Public Prosecutions, and not less than seven
clear days' notice must be given to the offender and to the
officer of the Court that it is intended to add such a charge,
and the notice must state the previous convictions and the
grounds upon which it is intended to found the charge (q).
A prisoner may, without leave, appeal from a sentence of
preventive detention (r).
While undergoing preventive detention prisoners are to be
subjected to such disciplinary and reformative influences
and are to be employed on such work as may be best fitted
to make them able and willing to earn an honest livelihood
on their discharge, and wide powers are given to the. Secretary
of State to discharge persons so sentenced on licence if he is
satisfied that there is a reasonable probability that they will
abstain from crime and lead a useful and industrious life (s).
And where any person has been sentenced to penal servitude
for five years or upwards, of which he has served not less
than three years, the Secretary of State may, if it appears to
him that the offender is a habitual criminal, commute the
whole or part of the residue of the sentence to preventive
detention (t).
Recognisances and Sureties.- — Under each of the Criminal
Consolidation Acts, 1861, and the Forgery Act, 1913, and
Larceny Act, 1916, in case of conviction for an indictable
misdemeanour punishable under those Acts, the Court may
require the offender to enter into a recognisance, with or
has elapsed between his last discharge from prison and the commission of the
offence of which he is convicted, and there is no evidence showing that he has
not been leading an honest life in the interval, the attention of the jury should
be strongly drawn to those facts by the Judge (R. v. Turner, [1910] 1 K. B.
346; 79 L. J. K. B. 176; 3 Cr. App. E. 103; R. v. Kelly, [1909], 3 Cr. App.
R. 248; R. v. Wells, [1910] 5 Cr. App. E. 33).
iq) 8 Edw. VII. c. 59, s. 10. R. v. Turner, supra.
(r) 8 Edw. VII. c. 59, s. 11.
(s) Ibtd. ss. 13-16.
(t) Ibid. s. 12.
PUNISHMENT. 433
without sureties, to keep the peace and be of good behaviour,
in addition to or in lieu of any other punishment. In case
of a felony, except murder, punishable under those Acts, the
Court may make a similar order, in addition to any other
punishment. And under these clauses the offender may be
imprisoned for not more than one year in default of finding
sureties {u). But, independently of statute, upon any con-
viction for an indictable misdemeanour the Court may in
addition to or substitution for any other punishment, require
the defendant to enter into a recognisance, with or without
sureties, to keep the peace and be of good behaviour for a
reasonable time, and in default may commit him to
prison {ic).
A recognisance is a contract of record whereby the person
bound acknowledges himself to be indicted to the King in
a certain sum, to be levied on his goods and chattels, lands
and tenements, if he fail in the condition specified in the
recognisance. If the condition is performed the recognisance
becomes void ; if it is broken the recognisance may by order
of the Court be forfeited and estreated [x], the person bound,
and his sureties (if any) become absolute debtors to the Crown
for the sum named, which will then be levied by the sheriff.
Recognisances must as a rule be taken before a Court,
justice, or Court official, but there are some exceptions, as,
e.g., in the case of bail (i/).
The condition of a recognisance varies according to the
purpose for which it is taken; it may be required in a number
of cases in addition to those stated in the preceding paragraph,
as for example :
(i) From the prosecutor and witnesses for the prosecution or
defence upon committal of a person for trial upon an
(u) 24 & 25 Vict. c. 97, s. 73; c. 98, s. 51 ; c. 99, s. 38; c. 100, e. 71 ; 3 & 4
Geo. V. c. 27, ■. 12, sub-s. 2 (b) (c) (d); 6 & 7 Geo. V. c. 50, 8. 37, 8ub-8. 5 (b).
(uj) R. V. Dunn, [1847] 12 Q. B., at p. 1041.
{x) Estreat (extraction) inean8 an extract or copy of some record of a Court.
It was formerly the duty of the clerks of all the King's Courts to make up an
estreat roll showing all fines, &c., imposed by the Court and to return it to the
Exchequer. For the modern practice as to the estreat of recognisances, see
Archbold, 94 & 97.
(J/) Ante, p 304.
c.L. 28
434 PUNISHMENT.
indictable offence (z), or where under the Vexatious
Indictments Act, the prosecutor has been bound over to
prosecute (a).
(ii) Under the Probation of Offenders Act, 1907 (6).
(iii) From the appellant on appeals to Quarter Sessions or
where a Court of summary jurisdiction states a special
case (c).
(iv) From a person admitted to bail (d).
(v) From a person who appeals to the Court of Criminal
Appeal where a fine only has been inflicted («)•
(vi) By a Court of summary jurisdiction as a preventive
measure. By section 25 of the Summary Jurisdiction
Act, 1879, (/) a Court of summary jurisdiction may
upon complaint by any person order any one to enter into
a recognisance and find sureties to keep the peace or
be of good behaviour towards the complainant. The
procedure in such cases is the same as in any other pro-
ceedings under the Summary Jurisdiction Acts (g), and
will be described in a later chapter.
Security for the peace may be demanded by a complainant
who has just cause to fear that another will do him some
bodily harm, or will procure others to do so (h). Security
for good behaviour is under the security for the peace. It
may be demanded from all persons who are disturbers of the
peace, whether or not anyone is put in fear of actual bodily
harm (i). Thus it may be demanded from a person who
uses or threatens to use in public places words likely to cause
a breach of the peace, e.g., from a Protestant lecturer who
uses language insulting to the Roman Catholic religion {?<).
So also security for the peace and for good behaviour may be
(z) Avte. p. 305.
(a) Ante, p. 330.
(b) Ante, p. 423.
(c) Post, pp. 469, 470.
(d) Ante, p. 301, et seq.
(e) Criminal Appeal Kules, 1908, rule 7.
if) 42 & 43 Vict. c. 49.
ig) Ihid.
(h) 1 Hawk. c. 60, s. 6.
(i) Lansbury v. Riley, ri914] 3 K. B. 229.
ik) Wise V. Dunning, [1902] 1 K. B. 1^7.
PUNISHMENT. 435
demanded from persons intending to hold a prize fight. If
the party is already before the Court on another charge
security for the peace or for good behaviour may be ordered
without any formal complaint having been made (/).
In default of compliance with the order the defendant may
be imprisoned for a period not exceeding six months, if the
Court be a petty sessional Court, and if the Court is a Court
of summary jurisdiction other than a petty sessional Court,
for a period not exceeding fourteen days (m).
Quite apart from the above statutory provisions, the High
Court, or a Court of assize, or Quarter Sessions, or a Court of
summary jurisdiction has at common law jurisdiction to
require sureties for the peace and must do so if satisfied that
the complainant has reasonable grounds of fear. This
jurisdiction is now rarely exercised in view of the provisions
of the Summary Jurisdiction Act, 1879, but it is said that
only the High Court (including Courts of Assize) has
jurisdiction to bind a peer or peeress (n).
Punishment of Children and Young Persons. — We have
already stated that some of the punishments inflicted on
adults cannot be imposed upon a child or a young person,
by the former being meant a child under fourteen years of
age, and by the latter a person between the ages of fourteen
and sixteen (o). The various modes of dealing with children
are specified in the Children Act, 1908 (p), which provides
that where a child or young person is tried by any Court and
the Court is satisfied of his guilt, it may deal with the case
in any of the following ways : —
(a) By dismissing the charge (although the Court may b«
satisfied that he is guilty) (v. p. 423).
(b) By discharging the offender on his entering into a
recognisance (v. p. 423).
(I) Ex parte Davis, 35 J. P. 661.
(m) 42 & 43 Vict. c. 49. s. 45.
(n) See Encyclopedia of English Law, vol. 1, title " Articles of the Peace.
(0) 8 Edw. VTT. c. 67, a. 131.
(p) Ibid. 8. 107.
436 PUNISHMENT.
(c) By so discharging liim and placing him under the
supervision of a probation officer (v. p. 424).
(d) By committing him to the care of a relative or other
fit person (v. p. 423).
(e) By sending him to an industrial school (v. p. 437).
(f) By sending him to a reformatory school (v. p. 437).
(g) By ordering him to be whipped (v. p. 429).
(h) By ordering him to pay a fine, damages, or costs
(v. pp. 423-428).
(i) By ordering his parent or guardian to pay a fine,
damages, or costs (Ibid.).
(j) By ordering his parent or guardian to give security for
his good behaviour (Ibid.).
(k) By committing him to custody in a place of detention
provided under the Act (infra).
(1) If he is a young person by sentencing him to imprison-
ment (but V. p. 427).
(m) By dealing with the case in any other manner in which
it may be legally dealt with (see ss. 104-106, infra).
The Children Act requires (q) that a place of detention
shall be provided for each petty sessional division, the
registered occupier of which must be a fit person to have
and be responsible for the custody and care of children com-
mitted for detention; the premises are to be registered by
the police authority, and no child or young person is to be
detained in custody in any place which is not so registered.
Where a child or young person is convicted of an offence
punishable in the case of an adult with penal servitude or
imprisonment, or who would if he were an adult be liable to
be imprisoned in default of payment of any fine, damages,
or costs, and the Court considers that none of the other
methods in which the case might be dealt with is suitable,
it may, instead of sending him to prison, order that he be
committed in custody to one of the above-mentioned places
of detention for a term not exceeding that for which he might
otherwise have been committed to prison, nor in any case
exceeding one month (r).
iq) 8 Edw. VII. c. 67, s. 108.
(r) Ibid. 8. 106.
PUNISHMENT. 437
But upon a conviction on indictment of a child or young
person of an attempt to murder, or of manslaughter, or of
wounding with intent to do grievous bodily harm, if the
Court is of opinion that no punishment which under the pro-
visions of the Act it is authorised to inflict is sufficient the
Court may order the offender to be detained for such period
as may be specified in the sentence, and he is then liable
to be detained in such place and on such conditions as a
Secretary of State may direct (5).
Where an offender who in the opinion of the Court is twelve
years of age, but less than sixteen, is convicted either on indict-
ment or by a petty sessional Court of an offence punishable in
the case of an adult with imprisonment the Court may in
addition to or in lieu of sentencing him to any other punish-
ment (except imprisonment) order him to be sent to a certified
reformatory (t), or, if he be apparently under twelve years of
age and has not been previously convicted, to a certified
industrial school if the Court should think that under the
circumstances he should be sent there rather than to a re-
formatory (u). Any person may bring before a petty sessional
Court a child apparently under the age of fourteen begging
or receiving alms, or being in a street or public place for the
purpose of begging or receiving alms; or found wandering,
not having any home or settled place of abode or visible
means of subsistence; or who frequents the company of
reputed thieves or prostitutes; or is found destitute, either
having no parent or guardian, or one who does not exercise
proper guardianship or is of criminal or drunken habits, or
having a surviving parent in penal servitude or imprison-
ment; or is lodging in a house used by prostitutes for the
purpose of prostitution, or is otherwise living in circum-
stances calculated to encourage the seduction or prostitution
of the child (w). The Court may order any such child to be
sent to an industrial school, and the same order mav be made
(s) Ibid. a. 104.
(t) 8 Edw. VII. c. 67, s. 57.
(u) Ibid. 8 58, 8ub-8. 3.
(«j) Ibid. 8. 58. But if the only prostitute whose company the child frequents
is its mother, and she exercises proper guardianship, the section will not apply.
438 PUNISHMENT.
by any Court before which a child apparently under the age
of twelve is charged with an oftence punishable in the case
of an adult by penal servitude or less punishment (a;),
A youthful offender sent to a reformatory school must be
ordered to be detained there for not less than three or more
than five years, and not in any case after he attains the age
of nineteen years. If sent to an industrial school a child may
be ordered to be detained for such time as the Court thinks
proper for his teaching and training, but not after he attains
the age of sixteen (y). But a child sent to a reformatory
school if discharged before he is nineteen years of age until
he reaches that age, and a child sent to an industrial school
until he reaches the age of eighteen, remain under the super-
vision of the managers of those schools, and they may recall
him to the school if they are of opinion that this is necessary
for his protection (z). The managers may also bind the child
or young person, with his consent, as an apprentice to any
trade or assist him to emigrate (a).
Instead of sending the child to an industrial school the
magistrates may, if they think fit, make an order, under the
Prevention of Cruelty to Children Act, 1904, committing him
to the custody of a relation or some other person and pro-
viding for his maintenance by such relation, &c. (6), and
may, in addition to such order, make an order under the
Probation of Offenders Act, 1907, placing him under the
supervision of a probation officer (c).
A person who is convicted on indictment of an offence for
which he is liable to penal servitude or imprisonment may,
instead of being punished in that way, be sentenced by the
Court to detention under penal discipline in a Borstal
Institution for not less than two years nor more than three
years, provided that (a) he is not less than sixteen nor more
than twenty-one years of age, and (b) by reason of his
(x) Ibid.
(y) 8 Edw. VII. c. 67, s. 65.
(z) Ibid. 8. 68.
(a) Ibid. 8. 70.
(b) Ibid. s. 22, sub-s. 2 ; s. 58, sub-s. 7, s. 60.
(c) Ibid. s. 58, sub-s. 4, s. 60.
PUNISHMENT. 439
criminal habits or tendencies, or association with persons
of bad character, it is expedient that he should be subject to
detention for such term and under such instruction and
discipline as appears most conducive to his reformation and
the suppression of crime (d).
A person sent to one of these institutions may be discharged
on licence to the supervision of any society or person before
the expiration of his term of detention (e).
After the term of his detention has expired he will still
be subject for one year to the supervision of the Prison Com-
missioners (/), and if during his period of detention he is
found to be incorrigible he may be sent by the Secretary of
State to prison (g).
Conviction of Defectives. — On the conviction (or even with-
out a conviction if the case is before a Court of summary
jurisdiction and is one with which the Court may deal
summarily if it finds the charge proved) of any person of any
criminal offence punishable in the case of an adult with penal
servitude or imprisonment; or on a child, when brought
before a Court under section 58 of the Children Act,
1908 {h), being found liable to be sent to an industrial school,
the Court if satisfied on medical evidence that he is a defective
may either (i) postpone sentence aYid direct that a petition
be presented to a judicial authority under the Act, with a
view to obtain an order that he should be sent to an institution
or placed under guardianship, or (ii) the Court may itself
make such an order as if such a petition had been presented.
The order will expire in a year from its date, but may be
id) 8 Edw. VII. c. 59 (Prevention of Crime Act. 1908), s. 1 ; 4 & 5 Geo. V.
c 58, B. 11, 8ub-8. 1. Before passing such a sentence the Court must consider
any report by the Prison Commissioners as to the suitability of the case for treat-
ment at such an institution, 8 Edw. VII. c. 69, s. 1. A Borstal institution is
a place in which young offenders may be given euch industrial training and
other instruction, and be subject to such disciplinary and other influences, as
will conduce to their reformation and the prevention of crime (Ibid. s. 4).
(e) Ibid. 8. 6.
(/) 8 Edw. VII. c. 59. s. 6; 4 & 5 Geo. V. c. 58, s. 11, subs. 2.
(q) 8 Edw. VII. c. 59, s. 7.
(;i) 8 Edw. Vn. c. G7, V. p. 437.
440 PUNISHMENT.
continued for successive periods of five years by the Board
of Control instituted under the Act (i).
Criminal Habitual DrunJcards .—Where a person is con-
victed on indictment of an offence punishable with imprison-
ment, if the Court is satisfied that the offence was committed
under the influence of, or was contributed to by, drink, and
the offender admits that he is, or is found by the jury to be,
a habitual drunkard, the Court may in addition to or sub-
rstitution for any other sentence, order him to be detained
for a term not exceeding three years in an inebriate refor-
matory. And if he is sixty years of age or upwards the
Court may order him to be disqualified from receiving an
old age pension for any period not exceeding ten years. The
indictment should allege, after charging the offence, that
the accused is a habitual drunkard, and, if he is found guilty
of the offence, the jury are then charged to inquire whether
he is a habitual drunkard. But unless evidence of the
habitual drunkenness has been given before the committing
magistrate, seven days' notice must be given to the accused
and to the officer of the Court that habitual drunkenness will
be charged in the indictment. There is a somewhat similar
provision as to persons who are repeatedly convicted
surriTnarily of drunkenness (h), and also in the case of a
parent who is a habitual drunkard and is convicted of the
ill-treatment of his or her child (I).
It having been found that the criminal classes in this
country were largely recruited from abroad, it has been
enacted (m) that the Secretary of State may make an expul-
sion order requiring an alien to leave the kingdom, and not
to return, if it is certified to him by any Court that the alien
has been convicted by that Court of any felony or mis-
demeanour, or other offence for which the Court has power
(»■) 3 & 4 Geo. V. c. 28, ss. 8, 11.
(k) 61 & 62 Vict. c. 60, s. 1; 8 Edw. VII. c. 40, s. 3, sub-s. 3.
(l) V. p. 181.
(m) 5 Edw. VII. c. 13, s. 3. The Act also contains provisions intended to
prevent the landing in this country of undesirable immigrants.
PUNISHMENT.
441
to impose imprisonment without the option of a fine, and
that the Court recommends that an expulsion order should
be made in his case either in addition to or in lieu of his
sentence; and with a view to the prevention of crime a
similar order may be made in the case of an alien with
regard to whom a Court of summary jurisdiction may
certify that he has entered the kingdom within the preceding
twelve months, and has been sentenced in a foreign country
for an extradition crime within the meaning of the Extra-
dition Act, 1870.
If the alien disobeys such an expulsion order he is to be
deemed a rogue and vagabond, and may be imprisoned for
three months (n). •
Other Consequences of Conviction. — Formerly certain for-
feitures and other consequences followed on conviction for
treason or felony (o). But by statute {p) it was provided that
from and after the passing of the Act (July 4, 1870) no
conviction for any treason, felony, or felo de se should cause
any attainder, or corruytion of blood, or any forfeiture or
escheat; provided that nothing in the Act should affect the
forfeiture consequent upon outlawry (q).
But a conviction for treason or felony for which the
sentence is death, penal servitude, or imprisonment either
with hard labour or exceeding twelve months, determines
the tenure of any military or naval office, or any civil office
under the Crown, or other public employment, or any
ecclesiastical benefice, or any office or emolument in any
university or other corporation, or any pension or super-
annuation allowance payable by the public, or out of any
public fund, unless a pardon is received within two months
after the conviction, or before the filling up of the office,
place, &c., if given at a later period. It also disqualifies
the felon for the future, until the punishment has been
(n) 5 Edw. VII. c. 13, s. 3, sub-s. 2. s. 7.
(o) As to forfeiture on misprision of treason, v. p. 39.
(p) 33 & 34 Vict. c. 23, 8. 1.
(q) Ibid. 8. 6.
442 PUNISHMENT.
suffered or pardon received, from holding any military or
naval office, or any civil office under the Crown, or other
public employment, or any ecclesiastical benefice, or being
elected, or sitting, or voting as a member of either House
of Parliament, or from exercising any right of suffrage or
other parliamentary or municipal franchise (r).
A conviction for any offence, if the sentence is imprison-
ment for more than six weeks without the option of a fine,
disqualifies a person from receiving an old age pension for
ten years from the date of his release from prison. If the
imprisonment is for not more than six weeks the period of
disqualification is two years {s).
The conviction of a child or young person under sixteen
years of age is not regarded as a conviction of felony for the
purpose of any disqualification attaching to felony (/).
As to the projjerty of the felon. — The property of a person
convicted of felony may be committed by the Crown to the
custody and management of an administrator; or in default
of such appointment, to the management of an interim
curator, who may be appointed by the magistrates on an
application made in the interest of the felon or his family.
The administrator or curator must pay his debts and
liabilities, and support his family, and preserve the residue
of the property for the felon himself or his representatives
on the completion of his punishment, his pardon, or his
death (u). The administrator has an absolute power of sale
of all the felon's property, and a bona fide sale by him cannot
be impeached by the convict at any time (w).
(r) 33 & 34 Vict. c. 23, s. 2.
(s) 8 Edw. VII. c. 40, s. 3, sub-s. 2 ; 1 & 2 Geo. V. c. 16, s. 4. A person in
receipt of an old age pension who is convicted of any of the offences as to
drunkenness mentioned in Schedule 1 of 61 & 62 Vict. c. 60, is disqualified from
receiving his pension for six months from the date of his conviction, unless the
Court otherwise directs : 1 & 2 Geo. V. c. 16, s. 4, sub-s. 3. As to criminal
habitual drunkards, v. p. 440.
it) 8 Edw. VII. c. 67, s. 100.
(m) 33 & 34 Vict. c. 23, ss. 9, 18, 21. This does not apply to property vested
in the convict as trustee or mortgagee, 56 & 57 Vict. c. 53, s. 48.
(w) Carr v. Anderson, [1903] 2 Ch. 279; 72 L. J. Ch. 534; 88 L. T. 503:
51 W. E. 465.
PCNISHMENT. 443
Persons convicted of felony may be ordered to pay a sum
of money not exceeding £100, as compensation for any loss
of property suffered by any person through or by means of
the felony (x). The power of the Court to order the defendant
to pay the costs of the prosecution has already been referred
to (7/).
Objects of Punishment. — It seems desirable to add a few-
words as to the objects which the law has in view in inflicting
punishment upon a person convicted of crime.
It is indisputable that the main object of punishment is
to prevent the commission of crime, but there are some
differences of opinion as to the methods by which this can
best be effected. Broadly speaking, however, there are three
ways in which punishment can act, viz., as a deterrent, or
by way of reformation, or prevention.
There is one class of criminals, comprising the habitual
and the professional criminal, upon whom punishment has
very little deterrent effect and who are practically incapable
of reformation. It is now almost universally recognised that
the only satisfactory way of dealing with this class is by the
adoption of purely preventive methods, such as police super-
vision and preventive detention. At the other end of the scale
we find a large class of offenders, principally juvenile, who
are capable of education and reformation. For this type of
offender the proper method of punishment is that of the
Borstal system, namely, " Detention . . . under such in-
struction and discipline as appears most conducive to his
reformation and the repression of crime " (z). And though
instruction and discipline cannot prevent crime, yet with
this class of offenders they are a powerful factor in diminish-
ing it, and in a very large number of cases a permanent
reformation is effected.
Between these two extreme types we get a large body of
criminals of various kinds whom, in a work of this kind, it
is impossible to attempt to classify, so diverse are their crimes
(X) 33 & 34 Vict. c. 23, a. 4. (y) v. p. 379.
444 PUNISHMENT.
and the causes for their commission. With these, at the
present time, it seems possible to deal only by such a system
of punishment as will in most cases act as a deterrent. There
are, of course, many crimes and many offenders whom no
punishment will deter — crimes of sudden passion, crimes
committed under overwhelming temptation, offenders who
commit crime under the belief that detection is impossible,
and offenders who from a scientific though not from a legal
point of view are not responsible for their actions. But
under ordinary circumstances and for the mass of mankind
there is no doubt that the fear of punishment is the most
efficacious deterrent from crime. The influence of education
in diminishing some kinds of crime must not be overlooked,
but the chief effect of what ordinarily passes for education
is merely to give a wider knowledge of the existence and
nature of punishment.
It remains, therefore, to consider what, as a general rule,
should be the nature of punishment so that it may act as a
sufficient deterrent. This may be summed up by saying that
it must be adequate and it must be certain.
Punishment must in the first place present to the offender
sufficient inconvenience and disgrace to outweigh any ad-
vantages which he may gain from the commission of the
crime. And though punishment by the State is the antithesis
of the primitive individual vengeance, yet it must be graded
so that its strictly punitive effect may vary according to the
nature of the offence. Hence in some classes of cases, as, e.g.,
in bigamy, the punishment varies with the moral gravity of
the offence in the circumstances of the particular case. On
the other hand, it is important that punishment should be
moderate; probably the alleviation of the severe punishments
of former times is to some extent due to the fact that the
probability of their infliction caused the sympathy of the
jury to be with the offender and often contributed largely to
his acquittal. Even of more importance, however, is the
certainty of punishment, including certainty as to its amount.
It is perhaps one of the most regrettable features of the
criminal law that it is almost impossible to predict in any
PUNISHMENT. 445
particular case what amount of punishment is likely to be
inflicted. This cannot altogether be avoided, but very much
might be done towards making punishment less dependent
upon judicial discretion, especially in inferior Courts.
Lastly, it should be noticed that the certainty and adequacy
of punishment affect not only the offender but the community
generally. Where punishment is uncertain and inadequate
there is always the risk that further breach of law will be
caused through the persons injured or even the public taking
the law into their own hands.
CHAPTER XVII.
APPEAL.
Until 1907 it could not be said that there was any appeal
on the merits, by a person convicted, from the verdict of
the jury; nor even an appeal from an erroneous decision
of the Judge upon a matter, of law unless the Judge stated
a case for the opinion of a superior Court (a), or the case was
one of a very limited class in which relief could be obtained
by writ of error or motion for a new trial. This grave
defect in the practice of the criminal law was remedied by
the Criminal Appeal Act, 1907. Under this Act a person
convicted on indictment, inquisition, or information, or
sentenced at Quarter Sessions as an incorrigible rogue has
the following rights of appeal to the Court of Criminal
Appeal : —
1. A right, without any leave, to appeal against his
conviction on any question of law :
2. A right, with leave of the Judge who tried him or of
the Court of Criminal Appeal, to appeal against his con-
viction on any question of fact or mixed law and fact :
3. A right, with leave of the Court of Criminal Appeal, to
appeal against his sentence unless it is one fixed by law.
No leave is, however, required for an appeal against a sentence
of preventive detention.
The Act is set out fullv with notes in Book V.
(o) By the Crown Cases Reserved Act, 1848, any Court of oyer and terminer
or gaol delivery, and any Court of Quarter Sessions could reserve any question
of law for the consideration of the Court for Crown Cases Reserved (consisting
of the Judges of the High Court or any five of them), which could reverse,
affirm, or amend the judgment below or " mete such oti>pr order as justice may
require."
CHAPTER XVIII.
KEPRIEVE AND PARDON.
A REPRIEVE (reprendre) is the withdrawing of a sentence for
an interval of time, whereby the execution of a criminal is
suspended (a).
Reprieves may be granted either : —
i. By the Crown {ex Ttiandnto regis) at its discretion, its
pleasure being signified to the Court by which execution is
to be awarded.
ii. By the Court empowered to award execution either
before or after verdict {ex arhitrio judicis). Generally it
must be guided by its own discretion as to whether sub-
stantial justice requires it. But in two cases the Court is
bound to grant a reprieve, (i) When a woman sentenced
to death is ascertained to be pregnant. To discover whether
she is quick with child a jury of twelve matrons is em-
panelled. If so found, she is reprieved until either she is
delivered or proved by the course of nature not to have been
with child at all. But after she has been once delivered she
cannot be reprieved on this ground a second time, (ii) When
the prisoner becomes insane after judgment {b). We have
already seen that the occurrence of insanity in the prisoner is
a stay to proceedings at any stage.
Pardon. — The exercise of the prerogative of pardoning is
at the absolute discretion of the Sovereign. If, either from
the opinion of the Judge, or for any other reason, the Home
Secretary thinks the case a fit one for the interposition of
royal mercy, he recommends the same to the King, who acts
on the recommendation.
(a) Archbold. 220. (b) Archbold, 221.
448 RErKIEVE AXD PARDON.
The Criminal Appeal Act, 1907, does not in any way "affect
the royal prerogative to pardon an offender, but on consider-
ing any petition for mercy having reference to a conviction
on indictment, or to the sentence (other than sentence of
death), the Home Secretary may refer the whole case to the
Court of Criminal Appeal to be heard and determined by
them, or ask their opinion upon any point arising in the
case (c).
The Sovereign cannot pardon where private interests are
principally concerned in the prosecution of oft'enders : " non
potest rex gratiam facere cum injuria et damno aliorum "
— for example, a common nuisance cannot be pardoned while
it remains unredressed. But in certain cases there is statutory
power to remit penalties, although they may be wholly or in
part payable to some other than the Crown {d). There is
another case in which the offender cannot be pardoned,
namely, when he is guilty of the offence of committing a man
to prison out of the realm (e). It should also be noticed that
a pardon cannot be pleaded to an impeachment so as to stifle
the enquiry (/), But after a person has been impeached and
sentenced he may then be pardoned.
A pardon must be by warrant under the Great Seal, or
under the sign manual (</). As a rule, it is to be construed
most beneficially for the subject and against the King.
A pardon may be conditional — the most frequent example
of which is when a person sentenced to death is pardoned
on the condition that he submit to punishment either of
penal servitude or imprisonment {h).
The effect of a pardon (subject to any conditions upon
which it may be granted) is to absolve the person pardoned
from all punishment due to the offence, and from all dis-
(c) 7 Edw. VII. c. 23, s. 19.
(d) See 22 Vict. c. 32.
(e) 31 Car. II. c. 2.
(/) 12 & 13 Will. III. c. 2, s. 12.
(g) 7 & 8 Geo. IV. c. 28. s. 13
{h) V. 6 Geo. IV. c. 84; 20 & 21 Vict. c. 3.
HE1»RIEVE AND PARDON. 449
qualifications and forfeitures which he may have incurred
in consequence of the conviction (i).
Tichet of leave. — In connection with the subject of pardon,
it will be convenient to notice the case of those who are
allowed to be at large before the expiration of their term of
confinement.
When any person is sentenced to penal servitude or
imprisonment, the King, by order in writing under the hand
and seal of the Secretary of State, may grant him a licence
to be at large in the United Kingdom and the Channel
Islands, or in such part thereof respectively as in such licence
shall be expressed, during such portion of the term of penal
servitude or imprisonment, and upon such conditions, as His
Majesty thinks fit. But the licence may be revoked or altered
at the King's pleasure {k). It will be forfeited in the event
of a subsequent conviction for an indictable offence (Z). If
he fails to comply with the regulations as to notifying his
residence or (if a male) reporting to the police, he may either
be imprisoned for one year or the Court may forfeit his
licence (m). His licence may also be revoked if he is
summarily convicted of any offence (n). He may be
summarily convicted under the Penal Servitude Acts (i) if
on being brought before a Court of summary jurisdiction it
appears that he is earning his living by dishonest means (in
such a case he may be arrested without warrant by a constable,
if authorised in writing by the chief police officer of the
district) (o), (ii) if he breaks any conditions of his licence (p),
(iii) if he fails without reasonable excuse to produce his
licence to a Judge, magistrate, or constable {q). In the last
two cases he is also liable to imprisonment for three months
(t) Hay V. Justices of Tower Division, [1890] 24 Q. B. D. 561; 59 L. J
M. C. 79.
(k) 16 & 17 Vict. c. 99, as. 9-11.
(I) 27 & 28 Vict. c. 47, s. 4.
(to) 34 & 35 Vict. c. 112, s. 5 ; 64 & 55 Vict. c. 69, s. 4.
(n) 27 & 28 Vict. c. 47, e. 9.
(o) 34 & 36 Vict. c. 112, a. 3.
(p) Ibid. a. 4.
(g) 27 & 28 Vict. c. 47, e. 5; 34 & 36 Vict. c. 112, s. 4.
c.L. 29
450 REPRIEVE AND PARDON.
with or without hard labour. He may be arrested without
warrant by a constable if he is suspected of any offence (r)
or if his licence has been revoked (5). On a subsequent con-
viction the offender will first suffer the punishment attached
to such offence, and then finish his original term, the Judge
having no power to direct otherwise (t). If the licence is
revoked, the convict may be apprehended and sent back to
prison (u).
In the case of those sentenced to penal servitude or im-
prisonment, the remission of a part of the term, proportioned
to the length of the sentence, follows as a matter of course
if the convict conduct himself well. But if the sentence is
penal servitude for life, the special order of one of the
Secretaries of State is required.
(r) 54 & 55 Vict. c. 69, s. 2.
(s) 4 & 5 Geo. V. c. 58, s. 27.
(t) 27 & 28 Vict. c. 47, s. 9 ; 54 & 55 Vict. c. 69, s. 3; R. v. Hamilton,
[1908] 1 Cr. App. R. 87; R. v. Wilson, [1909] 2 K. B. 756; 79 L. J. K. B. 4.
(«) 16 & 17 Vict. c. 99, 8. 11: 20 & 21 Vict. c. 3, s. 5.
BOOK IV.
SUMMARY CONVICTIONS.
Convictions of a certain class are described as " summary "
to distinguish them from such as follow after a regular trial
on an indictment or information. The essence of summary
proceedings is the absence of the intervention of a jury, the
person accused being acquitted or condemned by the decision
of thp person who is instituted Judge.
The only class of summary proceedings which is to be
dealt with in this chapter is by far the most extensive and
important — Summary convictions before magistrates out of
Quarter Sessions (a).
The original functions of justices of the peace, when not in
General or Quarter Sessions, were chiefly to prevent breaches
of the peace and to cause offenders to be apprehended. But
their jurisdiction has been gradually extended. A great
number of minor offences can be dealt with satisfactorily
without the expense and delay of bringing them before the
ordinary Courts. Accordingly from time to time authority
has been conferred by statute (6) on the magistrates to
examine into such offences and punish the offenders. It is
only in virtue of legislative enactments that they act in this
capacity. In some cases the offenders are punished merely by
(a) We have already noticed a form of summary proceeding in the event of
contempt of Court (v. p. 81). Another class comprises proceedings before the
Commissioners of Inland Revenue ; v. 15 & 16 Vict. c. 61.
(b) The statutes regulating Courts of summary jurisdiction are : The Indict-
able Offences Act, 1848 (11 & 12 Vict. c. 42), amended by the Criminal Law
Amendment Act. 1867 (30 & 31 Vict. c. 35); the Summary Jurisdiction Acts,
1848 (11 & 12 Vict. c. 43). 1879 (42 & 43 Vict. c. 49). 1884 (47 & 48 Vict. c. 43).
1899 (62 & 63 Vict. c. 22), and the Criminal Justice Administration Act, 1914
(4 & 5 Geo. V. c. 58).
452 SUMMARY CONVICTIONS.
the infliction of a pecuniary penalty. In others the
magistrates are empowered to punish by a penalty or im-
prisonment with hard labour not exceeding six months; or,
if there has been a previous conviction, twelve months (c).
When the Court deals with an indictable offence summarily
and dismisses the information or convicts, the effect of such
dismissal or conviction is the same as if the person charged
had been acquitted or convicted respectively on indictment.
And the conviction or certificate of dismissal is a bar to
further proceedings for the same offence (d).
The jurisdiction of a magistrate is local, and not personal;
that is, he can exercise it only in his own county, borough,
or other district. And as a general rule, the jurisdiction is
further limited to offences committed within such county,
borough, or district. But in some cases the jurisdiction is
extended. Thus offences committed on the boundary of the
jurisdiction of two Courts, or begun within the jurisdiction
of one Court and completed within the jurisdiction of another
Court, may be tried by either Court, and offences against
property in transit may be tried by any Court through which
the property passed in the course of transit (e).
In some cases one justice may act by himself, in others
the presence of more is required. But Metropolitan police
magistrates. City of London magistrates, and stipendiary
magistrates have, within their jurisdiction, power in most
cases to do alone whatever is authorised to be done by one
or more justices (/).
The magistrates have no jurisdiction to hear and determine
cases in a summary manner where the title to property is in
question, though, if it had not been for such question, they
would have had cognisance thereof; and where the act
complained of was done by the defendant in the exercise of
a bona fide claim or assertion of right, such claim of right
(c) As, e.g., under 24 & 25 Vict. c. 96, s. 33 (v. p. 193), or in case of persons
already twice convicted of " crime " (v. p. 430) or under police supervision
(v. p. 429), or convicts at large under licence (v. p. 449).
(d) 42 & 43 Vict. c. 49, s. 27.
(c) 42 & 43 Vict. c. 49, s. 46. See also 67 & 58 Vict. c. 60, s. 684.
(/) 42 & 43 Vict. c. 49, s. 20, sub-s. 10; 11 & 12 Vict. c. 43, s. 33.
SUMMARY CONVICTIONS. 453
being not on the face of it obviously absurd or unreasonable,
the jurisdiction of the magistrates is ousted (g).
When a person is charged with any offence (except assault)
for which he is liable on summary conviction to imprison-
ment for more than three months, he may, before the charge
is gone into (but not afterwards), claim to be tried by a jury;
and thereupon the case will be treated as an indictable
offence. Before the charge is gone into, he must be informed
of his right of trial by jury, and asked if he desires such a
trial. And in the case of a child similar information must
be given to the child's parent or guardian, if present; and
such parent or guardian has the right of claiming trial by
jury (h).
The information that he has a right to be tried by jury
must be given to the person charged before the charge is
gone into, and if it is not so given and he is convicted by
the magistrates, even upon his own confession, the conviction
will be quashed (i). If the prisoner elects to be tried by a
jury it is not, however, necessary that the indictment should
allege that he did so elect (k).
If a defendant does elect to be tried by a jury, and not
summarily, he may (subject to the provisions of the Vexatious
Indictments Act) be committed for trial and indicted for any
offence disclosed by the depositions, although those offences
were not charged in the summons (l).
We shall first notice some of the chief offences which have
been made the subjects of summary proceedings, and then
enquire into the nature of such proceedings.
As in some cases the limit of jurisdiction, and the extent of
punishment which can be inflicted by Courts of summary
jurisdiction, differ according to the age of the person accused,
and in some cases jurisdiction exists only when the accused
is under a certain age, it will be convenient to classify offences
(g) Stone's Justices' Manual, p. 1042; Scott v. Baring, [1895] 64 L. J. M. C.
200.
(h) 42 & 43 Vict. c. 49, s. 17.
(t) R. V. Cockshott, [1898] 1 Q. B. 582 ; 67 L. J. Q. B. 467.
(fc) R. V. Chambers, [1896] 65 L. J. M. C. 214.
(I) R. V. Brown, [1895] 1 Q. B. 119; 64 L. J. M. C. 1.
454 SUMMARY CONVICTIONS.
in accordance with these distinctions, and to treat of them in
the following order : —
1. Offences by children.
2. Offences by young persons as distinguished from children
and adults.
3. Offences by adults as distinguished from young persons.
4. Common assaults.
5. Larcenies not indictable.
6. Small wilful injuries to property.
7. Offences relating to game.
It should be observed that the first three of these classes
of offences comprise certain indictable offences which can
be dealt with summarily on admission of guilt, or by consent
of the accused, or in the case of children by consent of their
parents or guardians. The remainder chiefly consist of
offences which are punishable on summary conviction without
the option of trial by jury.
For the purposes of the Summary Jurisdiction Act, 1879,
a child is defined to be a person who, in the opinion of
the Court before whom he is brought, is above the age of
seven years and under the age of fourteen years. A young
person is one who, in the opinion of the Court, is over
fourteen and under sixteen years of age. And an adult is
one who, in the opinion of the Court, is over sixteen years
of age {Tn).
1. Offences by Children.
When a child is charged with any indictable offence, other
than homicide, before a Court of summary jurisdiction, such
Court may, if they think it expedient, and if the parent or
guardian of the child on being informed of the right of trial
by jury does not object, deal summarily with the offence,
and inflict the same description of punishment as might have
been inflicted had the case been tried on indictment; except
that no fine shall, in the case of a child, exceed forty shillings;
and that whipping (with not more than six strokes of a birch)
may be inflicted on a male child either in addition to, or in
(m) 42 & 43 Vict. c. 4.9, s. 10, sub-s. 5, s. 49; 8 Edw. VII. c. 67, s. 128.
SUMMARY CONVICTIONS. 455
substitution for, any other punishment (n). By the Criminal
Justice Administration Act, 1914, it has been also provided
that whenever a child is charged before a Court of summary
jurisdiction with a felony, and the Court deals with the case
summarily, it may inflict a fine not exceeding forty shillings
as a punishment (o),
2. Offences by Young Persons.
When a young person between the ages of fourteen and
sixteen is charged with any indictable offence other than
homicide, such young person may, if he or she consent, and
the Court think it expedient, be dealt with summarily, and
if found guilty, may be adjudged either to pay a fine not
exceeding £10 or to be imprisoned, with or without hard
labour, for any term not exceeding three months {p).
3. Offences by Adults.
A. Value not exceeding £20. Trial by consent. — Where
an adult is charged before a Court of summary jurisdiction
with certain indictable offences, the Court, if they think it
expedient to do so, and if the person charged consents,
may deal summarily with the offence and may adjudge such
person, if found guilty of the offence, to be imprisoned, with
or without hard labour, for any term not exceeding three
months, or to pay a fine not exceeding £20; or if the value
of the property which was the subject of the offence exceeds
40s., to be imprisoned, with or without hard labour, for not
more than six months, or to pay a fine not exceeding £50 (r).
This applies only to the following offences, and, in cases
Nos. 1 — 7, 9 and 10, only where the value of the whole of the
property which is the subject of the offence does not
exceed £20 : —
(n) 42 & 43 Vict. c. 49, ss. 10, 15. As to the punishment of children and
young persons, see ante. p. 435.
(o) 4 & 5 Geo. V. c. 58, s. 16, sub-s. 3.
(p) 42 & 43 Vict. c. 49, g. 11; 62 & 63 Vict. c. 22, s. 2; 8 Edw. VII. c. 67.
e. 134, Third Schedule. As to the restriction of the imprisonment of young
persons, see 8 Edw. VII. c. 67, s. 102, ante, p. 427.
(r) 42 & 43 Vict. c. 49, s. 12; 62 & 63 Vict. c. 22, s. 1 ; 4 & 5 Geo. V. c. 58,
8. 15, 8Ub-S. 1.
i-36 SUMMAltY CONVICTIONS.
1. Simple larceny.
2. Offences punishable by statute as simple larceny {s).
3. Larceny from or stealing from the person.
4. Larceny as a clerk or servant.
5. Embezzlement by a clerk or servant.
6. Receiving stolen goods (including any offence specified
in section 33 (1) of the Larceny Act, 1916. v. p. 218).
7. Aiding, abetting, counselling or procuring the com-
mission of any of the offences numbered 1, 2, 3, 4.
8. Attempting to commit any of the offences numbered
1, 2, 3, 4, whatever the value of the property.
9. Obtaining or attempting to obtain money, goods, or
valuable securities by false pretences (t).
10. Maliciously setting fire to woods, &c., under section 16
of the Malicious Damage Act, 1861 (v. p. 261).
11. Certain offences committed by habitual drunkards
(Inebriates Act, 1898, section 2).
12. Indecent assault upon a male or female under the age
of sixteen years (Children Act, 1908, section 128 (2) ).
For this offence the maximum imprisonment is six
months.
B. Value exceeding £20. Plea Guilty. — When an adult
is charged with any of the offences named in the last
paragraph, and the value of the property which is the subject
of the alleged offence exceeds £20, and as the Court at any
time during the hearing of the case become satisfied that
there is sufficient evidence to put the person charged on his
trial, they may, if they deem it expedient to deal with the
case summarily, call on the person to plead, after having
first had the charge reduced into writing, and having
explained the effect of pleading. If he plead guilty, they
shall adjudge the prisoner to be imprisoned, with or without
(s) These are (i) destruction, &c., of valuable securities other than documents
of title to land (v. p. 194); (ii) stealing, &c., material of buildings and fixtures,
trees and plants (v. pp. 193, 194) ; (iii.) stealing by a partner or joint owner
(v. p. 202); (iv.) stealing, &c., electricity (v. p. 196).
it) Where a Court of summary jurisdiction deals summarily with this offence
under 42 & 43 Vict. c. 49, ss. 11, 12, 13 (v. pp. 455. 457). it must explain to the
person charged the nature of a false pretence (&2 & 63 Vict. c. 22, s. 3).
SUMMARY CONVICTIONS. 457
hard labour, for any term not exceeding six months. If he
plead not guilty, the prisoner is committed for trial (w).
4. Common Assaults and Batteries.
When any person unlawfully assaults or beats another,
two magistrates may hear and determine the charge, and
may inflict a fine of £5, or may sentence to imprisonment not
exceeding two months with or without hard labour. If the
person assaulted, &c., is a male child under the age of
fourteen, or is a female of any age, and the assault is of
an aggravated nature, the offender may be fined £20, or
imprisoned for six months. He may also be bound over to
keep the peace for a further period of six months (w). The
words of the enactment when referring to a common assault
are " upon complaint by or on behalf of the party aggrieved."
Unless, therefore, the party aggrieved or some one on his
behalf (and an unauthorised police officer is not such a person)
complains of the assault, a Court of summary jurisdiction
has no power to convict of a common assault [x). But this
is not the case with regard to an aggravated assault upon a
woman or child, as the complaint may then be by any one;
and even in the case of a common assault, if the person
assaulted is so aged or infirm or is so under the control of the
assailant as to be unable to take proceedings another person
may do so on his behalf {y).
An assault upon a police officer while in the execution of
his duty is also punishable on summary conviction by six
months' imprisonment with hard labour or a fine of £20 {z).
When a husband has been convicted of an aggravated
assault upon his wife, the Court has power to make an order
having the effect of a judicial separation (a).
(«) 42 & 43 Vict. c. 49, s. 13; 62 & B3 Vict. c. 22, s. 1 ; 4 & 5 Hco. V. c. 58,
fi. 16, 8ub-s. 1. By pleading guilty he loses his right of appeal to Quartrr
Sessions, 4 & 5 Geo. V. c. 58, s. 37.
(w^ 24 & 25 Vict. c. 100, ss. 42, 43.
(x) Nicholson v. Booth, [1888] 57 L. J. M. C. 43.
(y) Pickerinq v. Willoughby, [1907] 2 K. B. 296; 76 L. J. K. B. 709.
(z) 34 & 35 Vict. c. 112, s. 12.
(a) As to these orders, v. p. 172.
458 SUMMARY CONVICTIONS.
If the magistrates deem the offence not proved, or find
the assault to have been justified, or so trifling as not to
merit any punishment, and accordingly dismiss the com-
plaint, they must, if required, make out and deliver to the
party charged a certificate stating the fact of such dismissal.
This certificate, or the conviction (if the punishment has been
suffered), is a bar to any other proceedings, civil or criminal,
for the same cause. The certificate is, however, only to be
given in cases where the complaint has been made by the
person assaulted (h). But neither the acquittal nor the con-
viction will afford a defence to an action for the assault if the
prosecution was by indictment.
If the magistrates find that the assault was accompanied
by an attempt to commit a felony, or think, from any other
circumstance, that it is a fit subject for prosecution by
indictment, they must abstain from adjudication, and send
the case for trial. Also they may not determine any case of
assault in which a question arises as to the title to any lands
or hereditaments, or any interest therein or accruing there-
from, or as to any bankruptcy, or any execution under the
process of a Court of justice (c).
5. Larcenies not indictable.
We have already, under the headings of Offences by
Children, Oft'ences by Young Persons, and Offences by Adults,
dealt with the case of larcenies which are the subject of
indictment, but which, in the circumstances above mentioned,
can be dealt with summarily. It now remains to mention
that almost every possible injury in the nature of an illegal
taking of personal property or of things annexed to the
realty, when not indictable, is punishable before one or more
justices under the Larceny Act, 1861 (d), subject in some
cases to the right of the person charged to elect to be tried
(b) 24 & 25 Vict. c. 100, ss. 44, 45.
(c) Ibid. s. 46.
(d) 24 & 25 Vict. c. 96, ss. 18, 19 (dogs, ante, p. 199) ; ss. 12, 14, 15 (deer,
ante, p. 198; s. 17 (rabbits, ibid.); ss. 21-24 (beasts or birds ordinarily kept
in confinement but not subjects of larceny, and fish, ibid.); ss. 30-37 (trees,
fences, vegetable productions, &c., ante, pp. 193, 194.
SUMMARY CONVICTIONS. 459
on indictment. In some cases after one summary conviction^
in other cases after two summary convictions for the offence,
such offence amounts to a felony, and is indictable as
larceny (e).
6. Small wilful Injuries to Property.
Most of such injuries to property when not indictable
are punishable on summary conviction under the Malicious
Injuries to Property Act, 1861. In some cases a second or
third offence amounts to a felony or misdemeanour.
Also by section 14 of the Criminal Justice Administration
Act, 1914, it is provided that if any person wilfully or
maliciously commits any damage to any real or personal
property whatever and the amount of the damage does not
exceed £20, he shall be liable on summary conviction (a) if
the damage exceeds £5 to imprisonment for not more than
three months or to a fine not exceeding £5 ; (b) if the damage
is £5 or less to imprisonment for not more than two months
or a fine not exceeding £5; and in either case to the payment
to the party aggrieved of such further amount as appears
to the Court reasonable compensation for the injury.
But it is a good defence that the alleged offender acted
under a fair and reasonable supposition that he had a right to
do the act complained of. The same section also provides that
a Court of summary jurisdiction shall not commit a person
for trial for an offence under section 51 of the Malicious
Damage Act, 1861, unless the damage exceeds £5 (/). If the
damage is between £5 and £20, the offence may be dealt with
either summarily or on indictment, if over £20 on indictment
only.
7. Offences relating to Game.
Some of these have already been considered [g), the follow-
ing may also be added : Power is given to the police to search
(e) 24 & 25 Vict. c. 97, ss. 22 — 24 (trees, vegetable productions, &c., ante.
p. 269); 8. 25 (fences, ante, p. 267); ss. 37, 38 (telegraphs, ihid.; animals not
cattle, ante, p. 268).
(/) Ante, p 270.
(g) Ante, p. 133, et seq.
460 SUMMARY CONVICTIONS.
in public places persons suspected on reasonable grounds of
coming from lands where they have been unlawfully in
pursuit of game, and to seize any game or guns in their
possession. And any person who has obtained game by un-
lawfully going on land for that purpose or has used any
gun, &c., for unlawfully taking game and any accessory is
liable on summary conviction to a fine of £d and forfeiture
of the game and guns (h).
PROCEEDINGS UPON SUMMARY CONVICTIONS.
The following is an outline of the proceedings : An
information is laid before a justice of the peace that a person
has committed, or is suspected to have committed within the
jurisdiction of such justice, an offence for which he is liable
to be punished on summary conviction. This information
gives the justice jurisdiction and limits his enquiry to the
matter contained therein. It must be laid (unless a particular
period is fixed by the statute on which it is founded) within
six months from the time when the matter arose (?'). It must
be laid before a magistrate by the informant in person, or by
his counsel or attorney, or other person authorised in that
behalf, and must be for one offence only (k). It need not be
in writing, unless it is so directed to be by the statute dealing
with the offence, though it usually is in writing, and 11 & 12
Vict. c. 43 appears to assume this. Nor, as a rule, need it
be on oath, unless required by some particular statute or a
warrant to apprehend the person charged is issued in the first
instance instead of a summons, in which case the matter of
the information must be substantiated by the oath or affir-
mation of the informant, or of some witness on his behalf,
before the warrant is issued (l).
The next step is the issue of the sitrnmons directed to the
accused, stating shortly the matter of the information, and
requiring him to appear at a certain time and place to answer
(h) 2.5 & 26 Vict, c 114, s. 2.
(i) 11 & 12 Vict. c. 43, s. 11.
(k) Ibid. s. 10.
(I) Ibid. See also s. 2.
SUMMARY CONVICTIONS. 461
the information, and to be dealt with according to law.
And here it may be observed that if a justice of the peace
refuses to do any act relating to the duties of his office as
such justice, e.g., refusing to issue a summons, the party
requiring such act to be done may apply to the King's Bench
Division of the High Court, upon an affidavit of the facts,
for a rule calling upon such justice, and also the party to be
affected by such act, to show cause why such act should not
be done, and if after due service of such rule good cause be
not shown against it, the King's Bench Division may make
the same absolute, with or without costs, as it thinks proper ;
and the justice upon being served with such rule absolute
must obey it and do the act required, and no proceedings are
to be taken against a justice for obeying such rule and doing
the act required (m). But if a magistrate has bona fide
exercised his discretion and brought his mind to bear upon the
question whether he ought to act or not, the High Court has
no jurisdiction to review his decision (n) ; unless he has taken
into consideration matters which are outside the ambit of his
jurisdiction and absolutely apart from the matters which by
law ought to be taken into consideration [o).
The summons is served by the proper officer on the party
charged personally, or at his last or usual abode (/>). If the
person so served does not appear at the time and place
specified, provided a reasonable time has intervened between
the summons and the day appointed, the justice or justices
may, upon the matter of the information being to their
satisfaction substantiated by oath or affirmation, issue a
warrant to apprehend the accused. Authority is given to
them to issue a warrant in the first instance instead of issuing
a summons, if they think fit, on the information being to
(m) 11 & 12 Vict. c. 44, s. 5. This provision is really intended for the pro-
tection of the magistrate in cases where he might otherwise incur personal
liability by taking the course desired. But in all cases where a justice, whether
from a mistaken view of his power or otherwise, declines to perform his duty
or to proceed in a matter where he has jurisdiction, the High Court has an
inherent jurisdiction to compel him by mandamus to do his duty.
(n) Ex parte Lewis, [1888] 21 Q. B. D. 191; 57 L. J. M. C. 108; R. v.
Bros, [1901] 20 Cox, C. C. 89.
(o) R. V. Cotham, [1898] 1 Q. B., at p. 806; C7 L. J. Q. B. 632.
(p) 11 & 12 Vict. c. 43, 8. 1.
462 SUMMARY CONVICTIONS.
their satisfaction substantiated by oath or affirmation (q).
This warrant must state shortly the matter of the information,
must be under the hand and seal of the justices issuing it,
and be directed to the constable in whose hands it remains
in force until executed. It may be executed by apprehending
the accused at any place within the jurisdiction of the issuing
justice, or out of such jurisdiction on being indorsed or backed
by a magistrate of the jurisdiction in which the defendant
is (r).
A second course may be pursued if the summons, having
been duly served, is not obeyed. The justices may proceed
ea; parte to the hearing of the information, and may
adjudicate thereon, ajs fully and effectually as if the party
had personally appeared in obedience to the summons (s).
To secure the attendance of witnesses for the prosecution
and for the accused they may be served with a summons to
attend and give evidence or to produce any documents or
articles likely to be material evidence on the hearing, and,
if this is disobeyed, they may be arrested on a warrant.
Or, if the justice is satisfied on oath or affirmation that the
witness will not attend to give evidence unless compelled, a
warrant to secure such attendance may be issued in the first
instance. If the witness attends but refuses to be sworn, or,
without just excuse, to answer questions, he may be com-
mitted to prison for seven days (t).
The hearing must take place before two or more justices,
unless any statute expressly authorises hearing before one
justice (?/).
No case can be heard, tried, determined, or adjudged by
a Court of summary jurisdiction except when sitting in open
Court. " Open Court " means either a petty sessional Court-
house, that is, a place where Special or Petty Sessions are
usually held, or an occasional Court-house, that is, a police
(q) Ibid, s 2. '
(r) Ibid. 8. 3.
(s) Ibid s 2
(t) Ibid'. 8. 7 : 42 & 43 Vict. c. 49, s. 36 ; 4 & 5 Geo. V. c. 58, s. 29.
(u) 42 & 43 Vict. c. 49, s. 20, sub-8. 9 ; by 4 & 6 Geo. V. c. 58, 8. 38, one
justice may deal with certain charges of drunkenness.
SUMMARY CONVICTIONS. 463
station or other place appointed by the petty sessions as a
place to be used as an occasional Court-house (iv).
Petty Sessional Court. — Two or more justices sitting in a
petty sessional Court-house, or the Lord Mayor, or any of the
Aldermen of the City of London, or any police or stipendiary
magistrate, sitting in a Court-house where he has the usual
power of two justices, constitute " a petty sessional Court,"
and no fine of more than twenty shillings, and no imprison-
ment for more than fourteen days, can be given by a Court of
summary jurisdiction other than a petty sessional Court (x).
Indictable offences can be dealt with summarily under the
Summary Jurisdiction Act, 1879, only by a petty sessional
Court sitting on a day publicly appointed for hearing
indictable offences. A case may be adjourned by a Court
of summary jurisdiction which is not a petty sessional Court
to the next practicable sitting of a petty sessional Court (y).
The accused may make full defence, give evidence himself,
and call witnesses, and either party may be represented by
counsel or attorney or may in person conduct his own case (z).
A policeman is not allowed to be an advocate in the pro-
ceedings of which he has charge (a). But if he is named in
the summons as informant in a case under the summary
jurisdiction of the Court he will be entitled, although a
police officer, to conduct the case as prosecutor, though the
practice is not one which is encouraged (6).
If the defendant fails to appear, the justices may either
proceed to hear and determine or may adjourn. If the
defendant appears and the prosecutor does not, the magis-
trates will generally dismiss the complaint or they may
adjourn the hearing (c).
(w) 42 & 43 Vict. c. 49, s. 20, sub-ss. 1, 2,4,5; Interpretation Act, 1889, s. 13.
(x) 42 & 43 Vict. c. 49, -s. 20, sub-s. 7.
(y) 42 & 43 Vict. c. 49, 8. 20, sub-ss. 8, 11.
(z) 11 & 12 Vict. c. 43, 8. 12. In an indictable case the prosecutor has no
right to conduct the prosecution in person.
(a) Webb v. Catchlove, [1886] 50 J. P. 795; 82 L. T. 103.
(b) Duncan v. Toms. [1887] 56 L. J. M. C. 81.
(c) 11 & 12 Vict. c. 43, s. 13.
464 SUMMARY CONVICTIONS.
Juvenile Courts. — A Court of summary jurisdiction, when
hearing charges against children or young persons under the
age of sixteen, must, unless the defendant is charged jointly
with an adult, sit in a different building or room from that
in which the ordinary sittings of the Court are held, or on
different days or at diff'erent times from those of the ordinary
sittings, and the Court is then styled a juvenile Court. In
such a Court no persons other than the members and
officers of the Court, the parties, their solicitors and counsel,
other persons directly concerned in the case and repre-
sentatives of a newspaper or news agency are, without the
leave of the Court, allowed to be present {d). And no child
may be present during the trial of any person charged with
an offence (e).
If both the parties appear, the following are the pro-
ceedings. The substance of the information is read to the
defendant, and he is asked if he has any cause to show why
he should not be convicted. If he admits the truth of the
information, the justices proceed to convict and pass judg-
ment (/), If he does not admit the truth of the charge, the
magistrates hear the prosecutor, and such witnesses as he
may examine, and afterwards th6 defendant (who may in
every case give evidence on oath (9) ) and his witnesses.
The prosecutor will then be allowed to call evidence in reply,
if the defendant has examined any witnesses or given any
evidence other than to his general character; but the
prosecutor is not entitled to make any observations in reply
upon the evidence given by the defendant, nor the defendant
to make any observations in reply upon the evidence given
by the prosecutor in reply {h). The magistrates then consider
the whole matter, and determine the same by convicting the
defendant or dismissing the information. If there are more
' id) 8 Edw. VII. c. 67, s. 111.
(c) Ihid. s. 115.
(/) 11 & 12 Vict. c. 43, s. 14.
ig) 61 & 62 Vict. c. 36, s. 1 ; v. p. 365.
(h) 11 & 12 Vict. c. 43, s. 15. By leave of the Court the defendant or his repre-
sentative may postpone his speech until after his witnesses have been called.
If the only witness for the defence is the person charged he must be called
immediately after the close of the evidence for the prosecution and before his
representative addresses the Court (61 & 62 Vict. c. 36, s. 2; v. p. 367).
SUMMARY CONVICTIONS. 465
magistrates than one, the result is determined by the opinion
of the majority; if they are equally divided, and come to no
decision, there may be an adjournment for a re-hearing
before a re-constituted Court (i), or they may dismiss the
information, in which case the dismissal is a bar to a second
information on the same subject-matter (Jc). If they convict,
they make a memorandum thereof, and the conviction being
drawn up in the proper form is lodged with the clerk of the
peace, to be filed among the records of the General Quarter
Sessions. If the information is dismissed, the magistrates
must, if required, give a certificate of the order of dismissal
to the defendant, and this will be a bar to a subsequent
information or complaint for the same matter against the
same person (Z).
The judgment consists of two parts, namely, the adjudica-
tion of conviction and the sentence or award of punishment. •
This punishment may be either fine or imprisonment, or
both, according to the direction of the statute under which
the offence falls, which statute also defines the limits of the
punishment (w). Sometimes satisfaction by the wrongdoer
to the person injured may be ordered without the infliction
of any other punishment (n).
Again, as we have seen (o), the Court, although the offence
is proved, may exercise the powers given by the Probation
of Offenders Act, 1907, and may either dismiss the informa-
tion or discharge the offender, conditionally upon his entering
into a recognisance as provided by the Act, and subject in
either case to any order as to payment of damages or
compensation not exceeding £10.
Again, where a person is summarily convicted of any offence
for which the Court has power to impose imprisonment for
(t) Bagg v. Colquhoun, [1904] 1 K. B. 554.
(k) See Kinnis v. Graves, [1898] 67 L. J. Q. B. 583.
(I) 11 & 12 Vict. c. 43, s. 14.
(m) Whenever a Court of summary jurisdiction has power under any Act
other than the Summary Jurisdiction Act, 1879, to impose imprisonment for an
offence punishable on summary conviction, it may, although not given authority
by the particular Act, impose a fine not exceeding £20 instead of imprisonment
(42 & 43 Vict. c. 49, s. 4).
(n) 24 & 25 Vict. c. 96, 8. 108; c. 97, s. 66.
(o) v. p. 423.
c.L. 30
466 SUMMARY CONVICTIONS.
one month or more without the option of a fine, and (a) the
offender is not less than sixteen nor more than twenty-one
years of age ; and (b) has been previously convicted or, having
been previously discharged, has failed to observe a condition
of his recognisance; and (c) by reason of his criminal tenden-
cies or association with persons of bad character it is expedient
that he should be subject to detention under instruction and
discipline, the Court, instead of passing sentence, may
commit him to prison until the next Quarter Sessions and
the Court of Quarter Sessions may pass a sentence of detention
in a Borstal institution [p).
Imprisonment. — No person can be sentenced by a Court of
summary jurisdiction for less than five days. But a person
may be ordered to be detained in police custody for not more
than four days {q) ; and the Court, instead of passing a
sentence of imprisonment, may direct that the offender be
detained within the precincts of the Court or at any police-
station until any hour not later than eight in the evening
on the day on which he is convicted (r).
Where imprisonment without the option of a fine is
imposed it may in any case be with or without hard labour;
but when imprisonment is imposed in respect of the non-
payment of a sum ordered to be paid it must be without hard
labour (5).
Enforcem,ent of fines. — The payment of fines may be
enforced by distress (and in default of sufficient distress by
imprisonment (t) ) or by imprisonment in the first instance (w).
(p) 4 & 5 Geo. V. c 58, s. 10.
(g) 4 & 5 Geo. V. c. 58, s. 13.
(r) Ibid. s. 12.
(s) Ibid. s. 16.
(t) 11 & 12 Vict. c. 43, ss. 21. 22. The procedure on distress is regulated by
42 & 43 Vict. c. 49, s. 43. The wearing apparel and bedding of the person
convicted and his family and the tools and implements of his trade to the value
of £5 are privileged from distress, ibid. s. 21, sub-s. 2.
(«) 11 & 12 Vict. c. 43, s. 19: 42 & 43 Vict. c. 49, s. 21; 4 & 5 Geo. V. c. 58.
8. 25. The periods of imprisonment authorised in default of payment of a fine,
or in default of distress, are as follows : Where the fine does not exceed 10s.,
not more than seven days; where it is between 10s. and £1, not more than
fourteen days; where between £1 and £5, not more than one month; where
between £5 and £20, not more than two months ; where it exceeds £20, not
SUMMAllY CONVICTIONS. 467
The Court may allow time for the payment of a fine or may
direct payment to be made by instalments (w), or may
postpone the issue of a warrant of distress or commitment (x).
A warrant of commitment cannot be issued in the first
instance unless the Court is satisfied that the person convicted
has sufficient means to pay the sum forthwith, or unless,
upon bein^ asked, he does not desire time to pay, or unless
he has no fixed abode within the jurisdiction of the Court, or
unless the Court for any other special reason directs that no
time shall be allowed : In the absence of any of these reasons
he must be allowed not less than seven days to pay (y).
If time is not allowed for payment a warrant of commitment
may not be issued in the first instance unless it appears to
the Court that the offender has no goods or insufficient goods
to satisfy the money payable or that the distress will be
more injurious to him or his family than imprisonment (z).
Costs. — On conviction, the magistrate may order the. de-
fendant to pay the prosecutor's costs. On dismissal, the
magistrate may order the prosecutor to pay to the defendant
such costs as seem reasonable. The amount is to be specified
in the conviction or order of dismissal and recovered as
penalties are (a), but imprisonment cannot, in default of
distress, be inflicted for non-payment of costs by an un-
successful prosecutor without proof that he has, or has had,
means to pay (b).
When a fine is imposed not exceeding five shillings, no
costs are payable by the defendant to the informant without
an express order; and the fine, or part thereof, may be ordered
to be paid to the informant towards his costs; and all fees
more than three months (42 & 43 Vict. c. 49, s. 5; 4 & 5 Geo. V. c. 58, s. 44).
Where part of the sum has been paid the period must be reduced by a number
of days bearing the same proportion to the number of days in the period as
the sum paid bears to the whole sum (i & 5 Geo. V. c. 58, s. 3, sub-s. 1).
(w) 42 & 43 Vict. c. 49, s. 7.
(x) Ibid. 8. 21, sub-s. 1.
(j/) 4 & 5 Geo. V. c. 58, s. 1. sub-s. 1.
(z) Ibid. 8. 25, 8ub-s. 1.
(a) 11 & 12 Vict. c. 43, es. 18, 2fi ; see also s. 24.
(b) 42 & 43 Vict. c. 49, ss. 35, 47; R. v. Lord Mayor of London, Ex parte
Boaler, [1893] 2 Q. B. 146 ; 63 L. J. M. C. 29.
468 SUMMARY CONVICTIONS.
payable or paid by tbe informant shall be remitted, or
returned, unless otherwise expressly ordered (c).
The justices may direct the payment out of local funds
of the costs of proceedings for indictable offences which are
dealt with summarily, in the same way that the costs of
trials at the sessions or assizes are dealt with (d).
Where a child or young person under sixteen years of age
is ordered to pay a fine and costs, the costs can in no case
exceed the amount of the fine (e).
Proceedings against Magistrates. — It will not be necessary
to do more than mention that certain proceedings (in some
cases civil, in some criminal) may be taken against justices
for any irregularity or excess in their measures. As to
criminal steps, it may be stated generally that " wherever
the powers vested in justices for summary execution of penal
laws are exerted from corrupt or personal motives," the de-
linquent may be proceeded against by criminal information,
and punished accordingly; but "an information is never
granted for an irregularity merely from ignorance or
mistake " (/).
No application can be made for a criminal information
against a magistrate for misconduct as such, unless a notice
specifying the grievances complained of is served upon him
six days before the application is made. The appellant
must also state on affidavit his belief that the magistrate
was actuated by corrupt motives, and also, if he complains
of an unjust conviction, that he himself is innocent of the
charge made against him (g).
In conclusion, we may again draw attention to the fact
that the examination and punishment of offences in a
summary manner by justices of the peace, without the
intervention of a jury, is founded entirely upon a special
authority conferred and regulated by statute in the case of
(c) 42 & 43 Vict. c. 49, s. 8.
(d) 8 Edw. VII. c. 15, s. 1 ; v. p. S79.
(c) 8 Edw. VII. c. 67, s. 100.
(/) Paley, Sum. Con. 511.
(g) Crown Office Rules, 1906, rr. 36, 37.
SUMMARY CONVICTIONS. 469
each offence. No new offence is cognisable in this manner
unless expressly made so by statute; if some statute does not
authorise the summary proceeding, the offence must be dealt
with in the ordinary way by indictment or information (h).
(h) Paley, Sum. Con. 16, 17.
BOOK V.
APPEALS.— PART I.
APPEALS FROM SUMMARY CONVICTIONS.
Two kinds of appeal exist : (i) the ordinary appeal to the
Quarter Sessions; (ii) the appeal to the High Court on a
case stated by the justices out of sessions.
(i) Appeal to Quarter Sessions. — Any person aggrieved by
a conviction of a Court of summary jurisdiction in respect
of any offence who did not plead guilty or admit the truth
of the information may appeal from the conviction in manner
provided by the Summary Jurisdiction Acts to a Court of
Quarter Sessions (a).
Under the Summary Jurisdiction Act, 1879, by which the
proceedings upon all appeals are now regulated, such appeals
are subject to the following conditions and regulations (6) : —
(i) The appeal shall be to the next practicable Court of
General or Quarter Sessions holden not less than fifteen days
after the day on which the decision was given.
(ii) The appellant mus£ give notice in writing of his
intention to appeal, within seven days after the decision,
to the other party (c) and to the clerk of the Court of
summary jurisdiction, and the notice must state the general
grounds of the appeal.
(iii) The appellant must, within three days after his notice
of appeal (d), enter into recognisances before a Court of
summary jurisdiction (e), with such sureties as that Court
may direct, to prosecute the appeal and abide the result and
(a) '4 & 5 Geo. V. c. 58, s. 37, sub-s. 1. Note that this is a very great exten-
sion of the pre-existing right to appeal.
ib) 42 & 43 Vict. c. 49, s. 31.
(c) Notice to the solicitor is not sufl5cient, R. v. Justices of Oxfordshire,
[1893] 2 Q. B. 149; 62 L. J. M. C. 156.
(d) The appeal cannot be heard if the recognisance is entered into before the
notice of appeal is given. R. V. Justices of Cheshire, [1896] 60 J. P. 585.
(e) Not necessarily before the justices whose order is appealed from, or even
before justices for the same county. R. v. Justices of Durham, [1895] 1 Q. B.
801; 64 L. J. M. C. 187.
SUMMARY CONVICTIONS. 471
pay such costs as may be awarded. Instead of finding sureties
money may be deposited with the clerk of the Court a»
security.
(iv) If the appellant is in custody, he may be released if
the Court think fit, on entering into recognisances or giving
security.
(v) Notice must be signed by the appellant or his agent,
and may be sent by registered letter.
Large discretionary powers are given to the Court hearing
the appeal in relation to costs, adjournments, and modify-
ing, confirming, or reversing the decisions of the Court of
summary jurisdiction.
Fresh evidence may be given on the hearing of the appeal.
The respondent begins, and supports the order of the Court
below; if he does not attend the conviction should be
quashed (/). The decisions of the Quarter Sessions are by a
majority of votes, and are pronounced by the chairman.
Such a decision is conclusive, unless a case is reserved for
the consideration of the King's Bench Division.
(ii) Case for opinion of High Court. — Any person aggrieved
who desires to question a conviction, order, determination, or
other proceeding of a Court of summary jurisdiction, on the
ground that it is erroneous in point of law, or is in excess of
jurisdiction, may apply to that Court to state a special case
setting forth the facts of the case, and the grounds on which
the proceeding is questioned. And if the Court declines to
state the case, he may apply to a Divisional Court of the
King's Bench Division of the High Court of Justice for an
order requiring the case to be stated {g). This resort to a
superior Court operates as an abandonment of the right to
appeal to the Quarter Sessions {h). Certain conditions have
also to be complied with, and a recognisance must be entered
into to prosecute the appeal, and to pay the costs of the
respondent, if the Court allows them. The application must
(/) R. V. Justices of Surrey, [1892] 2 Q. B. 719; 61 L. J. M. C. 200.
(g) 42 & 43 Vict. c. 49, s. 33, extending 20 & 21 Vict. c. 43, s. 2. The pro-
visions of these two Acts must be read together; Stokes v. Mitcheson, [19021
1 K. B. 857 ; 66 J. P. 615. The application is by motion for an order nisi, or
in vacation to a Judge in chambers, Crown Office Rules, 1906, No. 49.
ih) 20 & 21 Vict. c. 43, s. 14.
472
SUMMARY CONVICTIONS.
be made as directed from time to time by rules (i). By one
of tbese rules an application to a Court of summary
jurisdiction, under section 33 of the Summary Jurisdiction
Act, 1879, to state a special case shall be in writing and shall
be left with the clerk of the Court within seven clear days
from the date of the proceeding questioned, and there shall
also be left with him a copy of such application for each of
the justices constituting such Court, which shall be duly
forwarded by him to each of the said justices. The case
shall be stated within three calendar months after the date
of the application and after the recognisance has been
entered into (k).
Where the charge is of a purely .criminal character and
the justices refuse to commit the defendant for trial, they
have no power to state a case for the opinion of the High
Court. They can, however, do so if the charge which is
dismissed is one of a quasi-crimina] nature only, e.g-, a
prosecution for a breach of by-laws, and this course is often
taken. Whether a case can be stated where a charge is
purely of a criminal nature and is dealt with by the justices
suTnmarily and dismissed appears to be doubtful (I).
Where no notice of application for the case in writing
had been given to the justices making the order, though
notice of application in writing had been served on their
clerk, it was held that there was no power to state a case (tti).
The case when stated should be signed by all the justices,
whether they agreed with the decision or dissented from it (n).
When the case has been stated by the justices, the
appellant must give notice of the appeal to the other party,
and supply him with a copy of the case (o), transmitting the
original to the King's Bench Division of the High Court,
whose decision in a " criminal cause or matter " is final (p).
(»■) 20 & 21 Vict. c. 43, s. 3.
(fc) Rule 52 of the Summary Jurisdiction Rules, 1915.
(l) Foss V. Best, [1906] 2 K. B. 105 ; 75 L. J. K. B. 575.
(to) Lockhart v. The Mayor of St. Albans, [1888] 21 Q. B. D. 188; 57 L. J.
Q. B. D. 118; V. also WestTnore v. Paine, [1891] 1 Q. B. 482; 60 L. J. M. C. 89.
(n) Barker v. Hodgson, [1904] 68 J. P. 310.
[1896] 60 J. P. 312.
(o) Service upon the solicitor of the other party is insufficient. Hill v. Wright,
(p) 36 & 37 Vict. c. 66 (Jud. Act, 1873), s. 47.
SUMMAEY CONVICTIONS. 473
When there is any fault or illegality in the commitment
alone, the proper remedy is for the defendant to sue out a
writ of habeas corpus, which will be directed to the gaoler
in whose custody the defendant is.
Certiorari. — The proceedings may also be removed by writ
of certiorari from the justices to the King's Bench Division
for the purpose of being examined by that Court, and, if
necessary, quashed. Unlike the qualified right of appeal,
this right exists in every case as a matter of common law,
unless expressly taken away by statute.
A writ of certiorari will in general lie for (1) a defect or
informality on the face of the proceedings before the magis-
trates; (2) where there has been a want of jurisdiction on
their part, or any of the magistrates have had an interest
in the subject-matter of the proceedings, or the proper
jurisdiction of the magistrates has been exceeded; and (3)
where a conviction has been obtained fraudulently. The
issuing of the writ is, except when it is applied for by the
Attorney-General, in the discretion of the Court, and the
application must be made within six months from the date
of the proceedings complained of. The application is in
the first instance by motion to a Divisional Court for an order
nisi (or in vacation to a Judge in chambers) to show cause
why the writ should not be issued, and if the rule nisi (or
summons) is granted it must be served upon the justices six
days before the return day when it is to be argued, in order
that they, or the other party interested, may show cause
against it. The rule nisi will then either be discharged or
made absolute {q).
If the case is one in which the applicant has a right of
appeal to Quarter vSessions no writ of certiorari will be granted
before the time for appealing has expired, or, if he has
appealed, before his appeal has been heard (r). The applicant
must enter into a recognisance to pay costs if his application
to set aside the order should be unsuccessful (,?).
iq) For fuller details as to the practice, see Crown Office Rules, 1906, and
Short and Mellor's Crown Office Practice, p. 37.
(r) Crown Office Rules, 1906, r. 29.
(s) Ibid. T. 24.
PART II. .
APPEAL TO THE COURT OF CRIMINAL APPEAL.
1. Constitution of Court. — (1) There shall be a Court of
Criminal Appeal, and the Lord Chief Justice of England and
eight Judges of the King's Bench Division of the High Court,
appointed for the purpose by the Lord Chief Justice with the
consent of the Lord Chancellor for such period as he thinks
desirable in each case, shall be Judges of that Court.
All the Judges of the King's Bench Division are now Judges of the Court of
Criminal Appeal, 8 Edw. VII. c. 46, s. 1.
(2) For the purpose of hearing and determining appeals
under this Act, and for the purpose of any other proceedings
under this Act, the Court of Criminal Appeal shall be
summoned in accordance with directions given by the Lord
Chief Justice of England with the consent of the Lord
Chancellor, and the Court shall be duly constituted if it
consists of not less than three Judges and of an uneven
number of Judges.
See, however, s. 17 as to matters which can be dealt with by one Judge.
If the Lord Chief Justice so directs, the Court may sit in
two or more divisions.
The Court shall sit in London except in cases where the
Lord Chief Justice gives special directions that it shall sit
at some other place.
(3) The Lord Chief Justice, if present, and in his absence
the senior member of the Court, shall be president of the
Court.
(4) The determination of any question before the Court of
Criminal Appeal shall be according to the opinion of the
majority of the members of the Court hearing the case.
(5) Unless the Court direct to the contrary in cases where,
in the opinion of the Court, the question is a question of law
APPEAL TO THE COUllT OF CHIMIN AL APPEAL. 475
dn which it would be convenient that separate judgments
should he pronounced by the members of the Court, the
judgment of the Court shall be pronounced by the president
of the Court or such oth?r member of the Court hearing the
ease as the president of the Court directs, and no judgment
with respect to the determination of any question shall be
separately pronounced by any other member of the Court.
(6) If in any case the Director of Public Prosecutions or
the prosecutor or defendant obtains the certificate of the
Attorney-General that the decision of the Court of Criminal
Appeal involves a point of law of exceptional public im-
portance, and that it is desirable in the public interest that a
further appeal should be brought, he may appeal from that
decision to the House of Lords, but subject thereto the
determination by the Court of Criminal Appeal of any appeal
or other matter which it has power to determine shall be final,
and no appeal shall lie from that Court to any other Court.
(7) The Court of Criminal Appeal shall be a superior Court
of record, and shall, for the purposes of and subject to the
provisions of this Act, have full power to determine, in
accordance with this Act, any questions necessary to be
determined for the purpose of doing justice in the case before
the Court.
(8) Rules of Court shall provide for securing sittings of the
Court of Criminal Appeal, if necessary, during vacation.
(9) Any direction which may be given by the Lord Chief
Justice under this section may, in the event of any vacancy
in that office, or in the event of the incapacity of the Lord
Chief Justice to act from any reason, be given by the senior
Judge of the Court of Criminal Appeal.
2. Registrar of the Court. — There shall be a Registrar of
the Court of Criminal Appeal (in this Act referred to as the
Registrar) who [shall be appointed by the Lord Chief Justice
from among the Masters ol»the Supreme Court acting in the
King's Bench Division and shallj be entitled to such
additional salary (if any), and be provided with such,
additional stati (if any), in respect of the office of Registrar
476 APPEAL TO THE COURT OF CRIMINAL APPEAL.
as the Lord Chancellor, with the concurrence oi the Treasury,
may determine.
The senior Master of the Supreme Court shall be the first
Registrar,
The Master of the Crown Office is now the Registrar of the Court of Criminal
Appeal (8 Edw. VII. c. 46, s. 2, practically repealing the words in square
brackets).
RIGHT OF APPEAL AND DETERMINATION OF APPEALS.
3. A person convicted on indictment may appeal under
this Act to the Court of Criminal Appeal : —
" Convicted on indictment." — Notice that by s. 20, sub-s. 2, the Act applies
also to convictions on criminal information and coroners' inquisitions and in
cases where a person is dealt with by a Court of Quarter Sessions as an
incorrigible rogue.
Also by 8. 9, sub-s. 5 of the Criminal Justice Administration Act, 1914 (4 & 5
Geo. V. c. 58), a person sentenced by a Court of Quarter Sessions under that
section to detention in a Borstal institution (v. p. 466) may appeal against the
sentence to the Court of Criminal Appeal and the provisions of the Criminal
Appeal Act shall apply accordingly.
(a) against his conviction on any ground of appeal which
involves a question of law alone; and
" Conviction." — Note that a prosecutor cannot appeal to the Court of Criminal
Appeal, though with the certificate of the Attorney-General he can appeal to the
House of Lords, s. 1, sub-s. 6.
The word "conviction" includes a conviction upon a plea of guilty (R. v.
Alexander, 7 Cr. App. R. 110; R. v. Ingleson, [1915] 1 K. B. 512; 11 Cr. App.
E. 21). It does not include the finding of a jury that a person arraigned was
unfit to plead {R. V. Larking, 6 Cr. App. R. 194) nor a finding that he was
insane at the time he committed the act {Felstead v. R., [1914] A. C. 534; 83
L. J. K. B. 1132; 10 Cr. App. R. 129; R. v. Taylor, 11 Cr. App. R. 198).
Where the indictment is bad in law an appeal lies as of right, but unless
the defect is one of substance the> Court may dismiss the appeal on the ground
that no substantial miscarriage of justice has occurred (s. 4, sub-s. 1) or may sub-
stitute a verdict of guiltv for some other offence (s. 5, sub-s. 2); R. v. Garland,
[1910] 1 K. B. 154; 3 Cr. App. R. 199. See Archbold, 321-322:
Where evidence has been wrongly admitted the conviction will be quashed
unless such evidence could not reasonably be said to have affected the minds
of the jury ; in considering this question the nature of the evidence so
admitted and the direction with regard to it in the summing-up of the Judge
are the most material matters. (See Archbold, 322, and authorities cited.)
If evidence has been wrongly excluded the question for consideration again
is its probable effect upon the minds of the jury, and unless the verdict would
in all probability have been the same the conviction will be quashed. (Ibid.)
If at the close of the case for the prosecution there is in the opinion of the
Judge no evidence to go to the jury he should, upon a submission to that
effect being made to him, direct the jury to find a verdict of not guilty, and
it has been held that if he fails to do so the Court of Criminal Appeal may
not have regard to any evidence for the defence which supplies the defect in
APPEAL TO THE COURT OF CRIMINAL APPEAL. 477
the evidence for the Crown. This has, however, been doubted. (Archbold,
322.)
But if there is no such submission at the close of the prosecution, the Court,
in considering the question of miscarriage of justice, may dismiss the appeal
if the evidence for the defence supplements deficiencies in the evidence for
the prosecution. (Archbold, 323, and authorities cited.)
If the evidence does not prove the offence charged the conviction will be
quashed apart from any considerations as to submissions. (Ibid.) If there
has been misdirection as to the law the conviction will be quashed unless the
prosecution can show that on a right direction the jury would have come to
the same conclusion. (Archbold, 324, and authorities cited.)
(6) with the leave of the Court of Criminal Appeal or upon
the certificate of the Judge who tried him that it is a fit
case for appeal against his conviction on any ground of
appeal which involves a question of fact alone, or a
question of rnixed law and fact, or any other ground
which appears to the Court to he a sufficient ground of
appeal; and
Misdirection as to the evidence is a question of fact and must be such that
it is reasonably probable that the jury would not have returned their verdict
but for the misdirection. (Archbold, 324, and authorities cited.)
See Archbold, 325.
(c) with the leave of the Court of Criminal Appeal against
the sentence passed on his conviction, unless the sentence
is one fixed by law.
Sentence. — This includes an order made on a parent or guardian under the
Children Act, 1908 (see pp. 423, 428).
A person sentenced to preventive detention may without leave appeal against
his sentence, including the sentence of penal servitude which must precede
the sentence of detention, Prevention of Crime Act, 1908 (8 Edw. VII. c. 59),
^. 11; R. V. Weatm, [1910] 1 K. B. 17, 21; 79 L. J. K. B. 1.
4. — (1) The Court of Criminal Appeal on any such appeal
against conviction shall allow the appeal if they think that
the verdict of the jury should be set aside on the ground that
it is unreasonable or cannot be supported having regard to
the evidence, or that the judgment of the Court before whom
the appellant was convicted should be set aside on the ground
of a wrong decision of any question of law or that on any
ground there was a miscarriage of justice, and in any other
case shall dismiss the appeal :
To succeed on this ground it must be shown that the verdict is unreason-
able or cannot be supported having regard to the evidence. It is not sufficient
that the case for the prosecution was weak nor that the members of the Court
of Criminal Appeal have some doubt as to the correctness of the verdict.
(Archbold, 326, and authorities cited.)
478 APPEAL TO THE COUKT OF CRIMINAL APPEAL.
As, e.g., where the trial was conducted unfairly, or that the identification of
the prisoner was not conducted properly, or that the jury have taken into con-
sideration matters which they ought not to have done. (Archbold, 326.)
Provided that tlie Court may, notwithstanding that they
are of opinion that the point raised in the appeal might be
decided in favour of the appellant, dismiss the appeal if they
consider that no substantial miscarriage of justice has
actually occurred.
(2) Subject to the special provisions of this Act, the Court
of Criminal Appeal shall, if they allow an appeal against
conviction, quash the conviction and direct a judgment and
verdict of acquittal to be entered.
(3) On an appeal against sentence the Court of Criminal
Appeal shall, if they think that a different sentence should
have been passed, quash the sentence passed at the trial, and
pass such other sentence warranted in law by the verdict
(whether more or less severe) in substitution therefor as they
think ought to have been passed, and in any other case shall
dismiss the appeal.
The Court is not bound to pass another sentence and may simply quash the
sentence passed at the trial (R. v. Johnson, [1909] 1 K. B. 439; 2 Cr. App.
R. 13; R. V. Bradford, 22 Cox, 627).
5. Powers of Court in special cases. — (1) If it appears
to the Court of Criminal Appeal that an appellant, though
not properly convicted on some count or part of the indict-
ment, has been properly convicted on some other count or
part of the indictment, the Court may either affirm the
sentence passed on the appellant at the trial, or pass such
sentence in substitution therefor as they think proper, and
Hs may be warranted in law by the verdict on the count or
part of the indictment on which the Court consider that the
appellant has been properly convicted.
(2) AVhere an appellant has been convicted of an offence
and the jury could on the indictment have found him guilty
of some other offence, and on the finding of the jury it
appears to the Court of Criminal Appeal that the jury must
have been satisfied with the facts which proved him guilty
of that other offence, the Court may, instead of allowing or
dismissing the appeal, substitute for the verdict found by
the jury a verdict of guilty of that other offence, and pass
APPEAL TO THE COURT OF CRIMINAL APPEAL. 479
such sentence in substitution for the sentence passed at the
trial as may be warranted in law for that other offence, not
being a sentence of greater severity.
(3) Where on the conviction of the appellant the jury have
found a special verdict, and the Court of Criminal Apjeal
consider that a wrong conclusion has been arrived at by the
Court before which the appellant has been convicted on the
effect of that verdict, the Court of Criminal Appeal may,
instead of allowing the appeal, order such conclusion to be
recorded as appears to the Court to be in law required by
the verdict, and pass such sentence in substitution for the
sentence passed at the trial as may be warranted in law.
(4) If on any appeal it appears to the Court of Criminal
Appeal that, although the appellant was guilty of the act or
omission charged against him, he was insane at the time the
act was done or omission made, so as not to be responsible
according to law for his actions, the Court may quash the
sentence passed at the trial and order the appellant to be
kept in custody as a criminal lunatic under the Trial of
Lunatics Act, 1883, in the same manner as if a special verdict
had been found by the jury under that Act.
6. Re-vesting and restitution of projyerty on conviction. —
The operation of any order for the restitution of any property
to any person made on a conviction on indictment, and the
operation, in case of any such conviction, of the provisions
of sub-section (1) of section twenty-four of the Sale of Goods
Act, 1893, as to the re-vesting of the property in stolen goods
on conviction, shall (unless the Court before whom the con-
viction takes place direct to the contrary in any case in which,
in their opinion, the title to the property is not In dispute)
be suspended : —
(a) in any case until the expiration of ten days after the
date of the conviction; and
(b) in cases where notice of appeal or leave to appeal is
given within ten days after the date of conviction, until
the determination of the appeal;
and in cases where the operation of any such order, or the
operation of the said provisions, is suspended until the
480 APPEAL TO THE COURT OF CRIMINAL APPEAL.
determination of the appeal, the order or provisions, as the
case may be, shall not take effect as to the property in
question if the conviction is quashed on appeal. Provision
may be made by rules of Court for securing the safe custody
of any property, pending the suspension of the operation of
any such order or of the said provisions.
See rules 9—13, Archbold, 303.
(2) The Court of Criminal Appeal may by order annul or
vary any order made on a trial for the restitution of any
property to any person, although the conviction is not
quashed; and the order, if annulled, shall not take effect,
and, if varied, shall take effect as so varied.
PROCEDURE.
7. Time for appealing. — (1) Where a person convicted
desires to appeal under this Act to the Court of Criminal
Appeal, or to obtain the leave of that Court to appeal, he
shall give notice of appeal or notice of his application for
leave to appeal in such manner as may be directed by rules
of Court within ten days of the date of conviction : Such
rules shall enable any convicted person to present his case
and his argument in writing instead of by oral argument
if he so desires. Any case or argument so presented shall be
considered by the Court.
See rules 17—25, Archbold, 305.
Except in the case of a conviction involving sentence of
death, the time within which notice of appeal or notice of an
application for leave to appeal may be given may be extended
at any time by the Court of Criminal Appeal.
(2) In the case of a conviction involving sentence of death
or corporal punishment : —
(a) The sentence shall not in any case be executed until
after the expiration of the time within which notice of
appeal or of an application for leave to appeal may be
given under this section; and
(b) if notice is so given, the appeal or application shall
be heard and determined with as much expedition as
APPEAL TO THE COURT OF CRIMINAL APPEAL. 481
practicable, and the sentence shall not be executed until
after the determination of the appeal, or, in cases where
an application for leave to appeal is finally refused, of
the application.
8. Judge' s notes and report to be furnished on appeal.—
The Judge or chairman of any Court before whom a person
is convicted shall, in the case of an appeal under this Act
against the conviction or against the sentence, or in the case
of an application for leave to appeal under this Act, furnish
to the Registrar, in accordance with rules of Court, his notes
of the trial, and shall also furnish to the Registrar in
accordance with rules of Court a report giving his opinion
upon the case or upon any point arising in the case.
9. Supplemental powers of Court. — For the purposes of
this Act, the Court of Criminal Appeal may, if they think
it necessary or expedient in the interest of justice: —
(a) order the production of any document, exhibit, or
other thing connected with the proceedings, the pro-
duction of which appears to them "necessary for the
determination of the case ; and
(b) if they think fit order any witnesses who would have
been compellable witnesses at the trial to attend and be
examined before the Court, whether they were or were
not called at the trial, or order the examination of any
such witnesses to be conducted in manner provided by
rules of Court before any Judge of the Court or before any
officer of the Court or justice of the peace or other person
appointed by the Court for the purpose, and allow the
admission of any depositions so taken as evidence before
the Court; and
For cases in which this has been done, see Archbold, 295.
(c) if they think fit receive the evidence, if tendered, of
any witness (including the appellant) who is a competent
but not compellable witness, and, if the appellant makes
an application for the purpose, of the husband or wife
of the appellant in cases where the evidence of the
C.L. 31
482 APPEAL TO THE COURT OF CRIMINAL APPEAL.
husband or wife could not have been given at the trial
except on such an application; and
(d) where any question arising on the appeal involves
prolonged examination of documents or accounts, or any
scientific or local investigation, which cannot in the
opinion of the Court conveniently be conducted before
the Court, order the reference of the question in manner
provided by rules of Court for enquiry and report to a
special commissioner appointed by the Court, and act
upon the report of any such commissioner so far as they
• think fit to adopt it ; and
(e) appoint any person with special expert knowledge to
act as assessor to the Court in any case where it appears
to the Court that such special knowledge is required for
the proper determination of the case ;
and exercise in relation to the proceedings of the Court any
other powers which may for the time being be exercised by
the Court of Appeal on appeals in civil matters, and issue
any \^rarrants necessary for enforcing the orders or sentences
of the Court : Provided that in no case shall any sentence
be increased by reason of or in consideration of any evidence
that was not given at the trial.
10. Legal assistance to appellant. — The Court of Criminal
Appeal may at any time assign to an appellant a solicitor
and counsel, or counsel only, in any appeal or proceedings
preliminary or incidental to an appeal in which, in the opinion
of the Court, it appears desirable in the interests of justice
that the appellant should have legal aid, and that he has not
sufficient means to enable him to obtain that aid.
See also s. 15, sub-s. 5.
11. Right of appellant to he present. — (1) An appellant,
notwithstanding that he is in custody, shall be entitled to be
present, if he desires it, on the hearing of his appeal, except
where the appeal is on some ground involving a question of
law alone, but, in that case and on an application for leave
to appeal and on any proceedings preliminary or incidental
to an appeal, shall not be entitled to be present, except where
APPEAL TO THE COURT OF CllIMINAL APPEAL. 483
rules of Court provide that he shall have the right to be
present, or where the Court gives him leave to be present.
(2) The power of the Court to pass any sentence under
this Act may be exercised notwithstanding that the appellant
is for any reason not present.
12. Duty of Director of Public Prosecutions. — It shall be
the duty of the Director of Public Prosecutions to appear for
the Crown on every appeal to the Court of Criminal Appeal
under this Act, except so far as the solicitor of a Government
department, or a private prosecutor in the case of a private
prosecution, undertakes the defence of the appeal, and the
Prosecution of Offences Act, 1879, shall apply as though
the duty of the Director of Public Prosecutions under this
section were a duty under section two of that Act, and pro-
vision shall be made by rules of Court for the transmission
to the Director of Public Prosecutions of all such documents,
exhibits, and other things connected with the proceedi^jgs as
he may require for the purpose of his duties under this
section.
13. Costs of appeal. — (1) On the hearing and determina-
tion of an appeal or any proceedings preliminary or incidental
thereto under this Act no costs shall be allowed on either
side.
(2) The expenses of any solicitor or counsel assigned to an
appellant under this Act, and the expenses of any witnesses
attending on the order of the Court or examined in any pro-
ceedings incidental to the appeal, and of the appearance of
an appellant on the hearing of his appeal or on any proceed-
ings preliminary or incidental to the appeal, and all expenses
of and incidental to any examination of witnesses conducted
by any person appointed by the Court for the purpose, or
any reference of a question to a special commissioner
appointed by the Court, or of any person appointed as
assessor to the Court, shall be defrayed, up to an amount
allowed by the Court, but subject to any regulations as to
rates and scales of payment made by the Secretary of State,
484 APPEAL TO THE COURT OF CRIMINAL APPEAL.
in the same manner as the expenses of a prosecution in
cases of felony.
By 8. 9, sub-s. 6 of the Costs in Criminal Cases Act, 1908 (8 Edw. VII. c. 15),
" a reference to the paj'meut of costs out of local funds under this Act shal!
be substituted for any reference to the payment of expenses in the case of an
indictment for felony, or any like reference ... in s. 13 of the, Criminal
Appeal Act, 1907." There is no provision in the Act for the expenses of a
private prosecutor in opposing an appeal.
14. — (1) An appellant who is not admitted to bail shall,
pending the determination of his appeal, be treated in such
manner as may be directed by prison rules within the meaning
of the Prison Act, 1898.
(2) The Court of Criminal Appeal may, if it sees fit, on
the application of an appellant, admit the appellant to bail
pending the determination of his appeal.
(3) The time during which an appellant, pending the de-
termination of his appeal, is admitted to bail, and, subject to
any directions which the Court of Criminal Appeal may give
to the contrary on any appeal, the time during which the
appellant, if in custody, is specially treated as an appellant
under this section, shall not count as part of any term of
imprisonment or penal servitude under his sentence, and, in
the case of an appeal under this Act, any imprisonment or
penal servitude under the sentence of the appellant, whether
it is the sentence passed by the Court of trial or the sentence
passed by the Court of Criminal Appeal, shall, subject to any
directions which may be given by the Court as aforesaid, be
deemed to be resumed or to begin to run, as the case requires,
if the appellant is in custody, as from the day on which the
appeal is determined, and, if he is not in custody, as from the
day on which he is received into prison under the sentence.
(4) Where a case is stated under the Crown Cases Act, 1848,
this section shall apply to the person in relation to whose
conviction the case is stated as it applies to an appellant.
(5) Provision shall be made by prison rules within the
meaning of the Prison Act, 1898, for the manner in which an
appellant, when in custody, is to be brought to any place at
which he is entitled to be present for the purposes of this
Act, or to any place to which the Court of Criminal Appeal
APPEAL TO THE COURT OF CRIMINAL APPEAL. 485
or any Judge thereof may order liim to be taken for the
purpose of any proceedings of that Court, and for the manner
in which he is to be kept in custody while absent from
prison for the purpose; and an appellant whilst in custody
in accordance with those rules shall be deemed to be in legal
custody.
15. Duties of Registrar with respect to notices of
appeal, Sfc. — (1) The Registrar shall take all necessary steps
for obtaining a hearing under this Act of any appeals or
applications, notice of which is given to him under this Act,
and shall obtain and lay before the Court in proper form all
documents, exhibits, and other things relating to the pro-
ceedings in the Court before which the appellant or applicant
was tried which appear necessary for the proper determination
of the appeal or application.
(2) If it appears to the Registrar that any notice of an
appeal against a conviction purporting to be on a ground of
appeal which involves a question of law alone does not show
any substantial ground of appeal, the Registrar may refer
the appeal to the Court for summary determination, and,
where the case is so referred, the Court may, if they consider
that the appeal is frivolous or vexatious, and can be de-
termined without adjourning the same for a full hearing,
dismiss the appeal summarily, without calling on any persons
to attend the hearing or to appear for the Crown thereon.
(3) Any documents, exhibits, or other things connected
with the proceedings on the trial of any person on indictment,
who, if convicted, is entitled or may be authorised to appeal
under this Act, shall be kept in the custody of the Court of
trial in accordance with rules of Court made for the purpose,
for such time as may be provided by the rules and subject to
such power as may be given by the rules for the conditional
release of any such documents, exhibits, or things from that
custody.
(4) The Registrar shall furnish the necessary forms and
instructions in relation to notices of appeal or notices of
application under this Act to any person who demands the
dame, and to officers of Courts, governors of prisons, and such
486 APPEAL TO THE COURT OF CRIMINAL APPEAL.
other ofRcers or persons as he thinks fit, and the governor
of a prison shall cause those forms and instructions to be
placed at the disposal of prisoners desiring to appeal or to
make any application under this Act, and shall cause any
such notice given by a prisoner in his custody to be forwarded
on behalf of the prisoner to the Registrar.
(5) The Registrar shall report to the Court or some Judge
thereof any case in which it appears to him that, although
no application has been given for the purpose, a solicitor and
counsel or counsel only ought to be assigned to an appellant
under the powers given to the Court by this Act.
16. Shorthand notes of trial. — (1) Shorthand notes shall
be taken of the proceedings at the trial of any person on
indictment who, if convicted, is entitled or may be authorised
to appeal under this Act, and on any appeal or application
for leave to appeal a transcript of the notes or any part
thereof shall be made if the Registrar so directs, and
furnished to the Registrar for the use of the Court of Criminal
Appeal or any Judge thereof : Provided that a transcript shall
be furnished to any party interested upon the payment of
such charges as the Treasury may fix.
If there is no shorthand note or the note taken is inadequate, the Court of
Criminal Appeal can proceed upon the material available. (Archbold, 298.)
(2) The Secretary of State may also, if he thinks fit in any
case, direct a transcript of the shorthand notes to be made
and furnished to him for his use.
(3) The cost of taking any such shorthand notes, and of
any transcript where a transcript is directed to be made by
the Registrar or by the Secretary of State, shall be defrayed
in accordance with scales of payment fixed for the time
being by the Treasury, out of moneys provided by Parliament,
and rules of Court may make such provision as is necessary for
securing the accuracy of the notes to be taken and for the
verification of the transcript.
17. Powers which may he exercised by a Judge of the
Court. — The powers of the Court of Criminal Appeal under
this Act to give leave to appeal, to extend the time within
APPEAL TO THE COURT OF CRIMINAL APPEAL. 487
which notice of appeal or of an application for leave to appeal
may be given, to assign legal aid to an appellant, to allow the
appellant to be present at any proceedings in cases where he
is not entitled to be present without leave, and to admit an
appellant to bail, may be exercised by any Judge of the Court
of Criminal Appeal in the same manner as they may be
exercised by the Court, and subject to the same provisions;
but, if the Judge refuses an application on the part of an
appellant to exercise any such power in his favour, the appel-
lant shall be entitled to have the application determined by
the Court of Criminal Appeal as duly constituted for the^
hearing and determining of appeals under this Act.
18. Rules of Court. — (1) Rules of Court for the purposes
of this Act shall be made, subject to the approval of the Lordl
Chancellor, and so far as the rules affect the governor or any
other officer of a prison, or any officer having the custody
of an appellant, subject to the approval also of the Secretary
of State, by the Lord Chief Justice and the Judges of the
Court of Criminal Appeal, or any three of such Judges, with
the advice and assistance of the Committee hereinafter
mentioned. Rules so made may make provision with respect
to any matter for which provision is to be made under this
Act by rules of Court, and may regulate generally the practice
and procedure under this Act, and the officers of any Court
before whom an appellant has been convicted, and the
governor or other officers of any prison or other officer having
the custody of an appellant and any other officers or persons,
shall comply with any requirements of those rules so far as
they affect those officers or persons, and compliance with those
rules may be enforced by order of the Court of Criminal
Appeal.
(2) The Committee hereinafter referred to shall consist of a
chairman of Quarter Sessions appointed by a Secretary of
State, the Permanent Under-Secretary of State for the time
being for the Home Department, the Director of Public
Prosecutions for the time being, the Registrar of the Court
of Criminal Appeal, and a clerk of assize, and a clerk of the
488 APPEAL TO THE COURT OF CRIMINAL APPEAL.
peace appointed by the Lord Chief Justice, and a solicitor
appointed by the President of the Law Society for the time
being, and a barrister appointed by the General Council of
the Bar. The term of office of any person who is a member
of the Committee by virtue of appointment shall be such as
may be specified in the appointment.
{?)) Every rule under this Act shall be laid before each
House of Parliament forthwith, and, if an address is
presented to His Majesty by either House of Parliament
"within the next subsequent thirty days on which the House
ihas sat next after any such rule is laid before it, praying that
the rule may be annulled, His Majesty in council may annul
the rule, and it shall thenceforth be void, but without
preju(Mce to the validity of anything previously done
thereunder.
SUPPLEMENTAL.
19. Prerogative of mercy. — Nothing in this Act shall
affect the prerogative of mercy, but the Secretary of State
on the consideration of any petition for the exercise of His
Majesty's mercy, having reference to the conviction of a
person on indictment or to the sentence (other than sentence
of death) passed on a person so convicted, may, if he thinks
fit, at any time either : — •
(a) refer the whole case to the Court of Criminal Appeal,
and the case shall then be heard and determined by the
Court of Criminal Appeal as in the case of an appeal by
a person convicted; or
(b) if he desires the assistance of the Court of Criminal
Appeal on any point arising in the case with a view to
the determination of the petition, refer that point to the
Court of Criminal Appeal for their opinion thereon, and
the Court shall consider the point so referred and furnish
the Secretary of State with their opinion thereon
accordingrlv.
APPEAL TO THE COURT OF CHIMIN AL APPEAL. 489
20. Criminal informations, procedure in the High Court,
S)C. — (1) Writs of error, and the powers and practice now
existing in the High Court in respect of motions for new
trials or the granting thereof in criminal cases, are hereby
abolished.
Note that the Act gives no power to order a new trial.
(2) This Act shall apply in the case of convictions on
criminal informations and coroners' inquisitions and in cases
where a person is dealt with by a Court of Quarter Sessions
as an incorrigible rogue under the Vagrancy Act, 1824, as
it applies in the case of convictions on indictments, but shall
not apply in the case of convictions on indictments or
inquisitions charging any peer or peeress or other person
claiming the privilege of peerage, with any offence not now
lawfully triable by a Court of assize.
An appeal of an incorrigible rogue can be only from his sentence at Quarter
Sessions, not from his conviction at Petty Sessions. (iJ. v. Johnson, [1909]
1 K. B. 439 ; 78 L. J. K. B. 290 ; 2 Cr. App. R. 13.)
(3) Notwithstanding anything in any other Act, an appeal
shall lie from a conviction on indictment at common law in
relation to the non-repair or obstruction of any highway,
public bridge, or navigable river, in whatever Court the
indictment is tried, in all respects as though the conviction
were a verdict in a civil action tried at assizes, and shall not
lie under this Act.
(4) All jurisdiction and authority under the Crown Cases
Act, 1848, in relation to questions of law arising in criminal
trials which is transferred to the Judges of the High Court
by section forty-seven of the Supreme Court of Judicature
Act, 1873, shall be vested in the Court of Criminal Appeal
under this Act, and in any case where a person convicted
appeals under this Act against his conviction on any ground
of appeal which involves a question of law alone, the Court
of Criminal Appeal may, if they think fit, decide that the
procedure under the Crown Cases Act, 1848, as to the state-
ment of a case should be followed, and require a case to be
490 APPEAL TO THE COUKT OF CRIMINAL APPEAL.
stated accordingly under that Act in tlie same manner as if
a question of law had been reserved.
This power has not yet been exercised.
21. Definitions. — In this Act, unless the context other-
wise requires : —
The expression " appellant " includes a person who has
been convicted and desires to appeal under this Act ; and
The' expression " sentence " includes any order of the
Court made on conviction with reference to the person
convicted or his wife or children, and any recommenda-
tion of the Court as to the making of an expulsion order
in the case of a person convicted, and the power of the
Court of Criminal Appeal to pass a sentence includes a
power to make any such order of the Court or recommen-
dation, and a recommendation so made by the Court of
Criminal Appeal shall have the same effect for the
purposes of section three of the Aliens Act, 1905, as the
certificate and recommendation of the convicting Court.
This includes an order for payment of costs by the person convicted. {R. v_
Howard, 6 Cr. App. K. 17.)
22. Repeal. — The Acts specified in the schedule to this
Act are hereby repealed to the extent mentioned in the third
column of that schedule.
23. — (1) This Act may be cited as the Criminal Appeal
Act, 1907.
(2) This Act shall not extend to Scotland or Ireland.
(3) This Act shall apply to all persons convicted after the
eighteenth day of April nineteen hundred and eight, but shall
not affect the rights, as respects appeal, of any persons con-
victed on or before that date.
APPEAL TO THE COUllT OF CRIMINAL APPEAL.
491
SCHEDULE.
ENACTMENTS REPEALED.
Session and Chapter.
7 & 8 Will. III. c. 3 The Treason Act,
1695.
Short Title.
11 & 12 Vict. c. 78
38 & 39 Vict. c. 77
44 & 45 Vict. c. 68
The Crown Cases
Act, 1848.
The Supreme Court
of Judicature Act,
1875.
The Supreme Court
of Judicature Act,
1881.
Extent of Bepeil.
In section nine, from " but
neverthelesse " to the end
of the section.
Sections three and five.
In section nineteen, the words
" including the practice and
procedure with respect to
Crown cases reserved."
Section fifteen.
TABLE OF PRINCIPAL OFFENCES.
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INDICTMENTS ACT. 1915.
APPENDIX TO RULES.
FORMS OF INDICTMENT (o).
1.
Statement of Offence.
Murder.
Particulaes of Offence.
A. B., on the day of , in the county of , murdered J. S.
2.
Statement of Offence.
Accessory after the fact to murder.
Pakticulars of Offence.
A. B., well knowing that one, H. C, did on the day of , in
the county of , murder C. C, did on the day of , in the
county of , and on other days thereafter receive, comfort, harbour,
assist and maintain the said H. C.
3.
Statement of Offence.
Manslaughter.
Paeticulaes of Offence.
A. B., on the day of , in the county of , unlawfully
killed J. S.
(a) It will be noticed that these forms in some cases relate to offences
under sections of statutes which have been repealed since the Act.
512 INDICTMENTS ACT, 1915.
4.
Statement of Offence.
Bape.
Paeticulaes of Offence.
A. B., on the day of , in the county of , had carnal know-
ledge of E. F. without her consent.
5.
Statement of Offence.
First Count.
Wounding xvith intent, contrary to section 18 of the Offences against the
Person Act, 1861.
Paeticulaes of Offence.
A. B., on the day of , in the county of , wounded CD.,
with intent to do him grievous bodily harm, or to maim, disfigure, or
disable him, or to resist the lawful apprehension of him the said A. B
Statement of Offence.
Second Count.
Wounding, contrary to section 20 of the Offences against the Person
Act, 1861.
Paeticulaes of Offence.
A. B., on the day of , in the county of , maliciously
wounded C. D.
6.
Statement of Offence.
Cruelty to a child, contrary to section 12 of the Children Act, 1908.
Paeticulaes or Offence.
A. B., between the day of and the day of , in the
county of , being a person over the age of sixteen years having the
custody, charge, or care of C. D., a child, ill-treated or neglected the
said child, or caused or procured the said child to be ill-treated or
neglected in a manner likely to cause the said child unnecessary suffering
or injury to its health.
INDICTMENTS ACT, 1915. 513
7.
Statement of Offbnce;
Larceny, contrary to section &7 of th^ Larceny Act, 1861.
Pabticulaes of Offence.
A. B., on the day of , in the county of , being clerk or
servant to M. N., stole from the said M. N. ten yards of cloth.
8
Statement of Offence.
Bobbery with violence, contrary to section 42 of the Larceny Act, 1861.
Particulaes of Offence.
A. B., on the day of , in the county of , robbed C. D. of
a watch, and at the time of or immediately before or immediately after
such robbery did use personal violence to the said C. D.
9.
Statement of Offence.
First Count.
Larceny, after a previous conviction.
Paeticulaes of Offence.
A. B., on the day of , in the county of , stole a bag, the
property of 0. D.
A. B. has been previously convicted of burglary on the day of
, at the assizes held at Reading.
Statement of Offence.
Second Count.
Beceiving stolen goods, contrary to section 91 of the Larceny Act, 1861.
Paeticulaes op Offence. '
A. B., on the day of , in the county of , did receive a
bag, the property of C. D., knowing the same to have been stolen.
C.L. 33
514 INDICTMENTS ACT, 1915.
10.
Statement of Offence.
Burglary and Larceny, contrary to section 60 of the Larceny Act, 1861.
Paeticulaes of Offence.
A. B., in tlie night of the day of , in the county of , did
break and enter the dwelling-house of C. D. with intent to steal therein,
and did steal therein one watch, the property of S. T., the said watch
being of the value of ten pounds.
11.
Statement of Offence.
Sending threatening letter, contrary to section 46 of the Larceny Act,
1861.
Particitlars of Offence.
A. B., on the day of , in the county of , sent, delivered
or uttered to or caused to be received by C. D., a letter accusing or
threatening to accuse the said C. D. of an infamous crime with intent
to extort money from the said C. D.
12.
Statement of Offence.
Obtaining goods by false pretences, contrary to section 88 of the Larceny
Act, 1861.
Particulars or Offence.
A. B., on the day of , in the county of , with intent to
defraud, obtained from S. P. five yards of cloth by falsely pretending
that he, the said A. B., was a servant to J. S., and that he, the said
A. B., had then been sent by the said J. S. to S. P. for the said cloth,
and that he, the said A. B., was then authorised by the said J. S. to
receive the said cloth on behalf of the said J. S.
13.
Statement of Offence.
Conspiracy to defraud.
Particulars of Offence.
A. B. and C. D., on the day of , and on divers days between
that dav and the day of , in the county of , conspired
INDICTMENTS ACT, 1915. 515
together with intent to defraud by means of an advertisement inserted
by them, the said A. B. and C. D., in the A. S. newspaper, falsely repre-
senting that A. B. and C. D. were then carrying on a genuine business
as jewellers at , in the county of , and that they were then able
to supply certain articles of jewellery to whomsoever would remit to
them the sum of two pounds.
14.
Statement of Offence.
First Count.
Arson, contrary to section 2 of the Malicious Damage Act, 1861.
Paeticulaes or Offence.
A. B., on the day of , in the county of , maliciously set
fire to a dwelling-house, one E. G. being therein.
Statement of Offence.
Second Count.
Arson, contrary to section 3 of the Malicious Damage Act, 1861.
Paeticulaes of Offence.
A. B., on the day of , in the county of , maliciously set
fire to a house with intent to injure or defraud.
15.
Statement of Offences.
A. B., arson, contrary to section 3 of the Malicious Damage Act, 1861.
C. D., accessory before the fact to same offence.
Paeticulaes of Offences.
A. B., on the day of , in the county of , set fire to a house
with intent to injure or defraud.
C. D., on the same day, in the county of , did counsel, procure,
and command the said A. B. to commit the said offence.
16.
Statement of Offence.
First Count.
Offence under section 35 of the Malicious Damage Act, 1861.
516 INDICTMENTS ACT, 1915.
Particulars of Offence.
A. B., on the day of , in the county of , displaced a
sleeper belonging to the Great Western Railway with intent to obstruct,
upset, overthrow, injure, or destroy any engine, tender, carriage or truck
using the said railway.
Statement of Offence.
Second Count.
Obstructing railway, contrary to section 36 of the Malicious Damage Act,
1861.
Particulars of Offence.
A. B., on the day of , in the county of , by unlawfully
displacing a sleeper belonging to the Great Western Railway did obstruct
or cause to be obstructed an engine or carriage using the said railway.
17.
Statement of Offence.
Damaging trees, contrary to section 22 of the Malicious Damage Acb,
1861.
Particulars of Offence.
A. B., on the day of , in the county of , maliciously
damaged an oak tree there growing.
A. B. has been twice previously convicted of an offence under sec-
tion 22 of the Malicious Damage Act, 1861, namely, at , on the
day of , and at , on the day of .
18.
Statement of Offence.
First Count.
Forgery, contrary to section 2 (1) (a) of the Forgery Act, 1913.
Particulars or Offence.
A. B., on the day of , in the county of , with intent to
defraud, forged a certain will purporting to be the will of C. D.
Statement of Offence.
Second Count.
Uttering forged document, contrary to section 6 (1) (2) of the Forgery
Act, 1913.
INDICTMENTS ACT, 1915. 517
Paetictjlaes of Offence.
A. B. , on the day of , in the county of , uttered a certain
forged will purporting to be the will of C. D., knowing the same to be
forged and with intent to defraud.
19.
Statement of Offence.
Utteriiuj counterfeit coin, contrary to section 9 of the Coinage Offences
Act, 1861.
Particulaes of Offence.
A. B., on the day of , at the public-house called " The Red
Lion," in the county of , uttered a counterfeit half-crown, knowing
the same to be counterfeit.
20.
Statement of Offence.
Uttering counterfeit coin, contrary to section 12 of the Coinage Offences
Act, 1861.
Particulars of Offence.
A. B., on the day of , at a public-house called "The Red
Lion," in the county of , uttered a counterfeit sovereign, knowing
the same to be counterfeit.
A B. has been previously convicted of a misdemeanour under section 9
of the Coinage Offences Act, 1861, on the day of , at — -.
21.
Statement of Offence.
Perjury, contrary to section 1 (z) of the Perjury Act, 1911.
Particulars of Offence.
A. B., on the day of , in the county of , being a witness
upon the trial of an action in the Chancery Division of the High Court
of Justice in England, in which one, , was plaintiff, and one, ,
was defendant, knowingly falsely swore that he saw one, M. N., in the
street called the Strand, London, on the day of .
518 INDICTMENTS ACT, 1915.
22.
Statement of Offence.
Lihel.
Paeticulaks of Offence.
A. B., on the day of , in the county of , published a
defamatory libel concerning E. F., in the form of a letter [book, pam-
phlet, picture, or as the case may be].
[Innuendo should be stated where necessary.]
23.
Statement of Offence.
First Count.
Publishing obscene libel.
Particulars of Offence.
E. M., on the day of , in the county of , sold, uttered,
and published and caused or procured to be sold, uttered, and published
an obscene libel the particulars of which are deposited with this indict-
ment.
[Particulars to specify pages and lines complained of where neces-
sary, as in a book.]
Statement of Offence.
Second Count.
Procuring obscene libel [or tiling^ with intent to sell or publish.
Particulars of Offence.
E. M., on the day of , in the county of , procured an
obscene libel [or thing] the particulars of which are deposited with this
indictment, with intent to sell, utter, or publish such obscene libel [or
thing].
24.
Statement of Offences.
A. B., undischarged bankrupt obtaining credit contrary to section 155(a)
of the Bankruptcy Act, 1914.
C. D., being accessor^' to same offence.
Particulars of Offences.
A. B., on the day of , in the county of , being an undis-
charged bankrupt, obtained credit to the e.\tent of twelve pounds from
INDICTMENTS ACT, 1915. 619
H. S. without informing the said H. S. that he then was an undischarged
bankrupt.
C. D. at the same time and place did aid, abet, counsel, and procure
A. B. to commit the said offence.
25.
Statement of Offence.
First Count.
Falsification of accounts, contrary to section 1 of the Falsification of
Accounts Act, 1875.
Pabticulars of Offence.
A. B., on the day of , in the county of , being clerk or
servant to C. D., with intent to defraud, made or concurred in making
a false entry in a cash book belonging to the said C. D., his employer,
purporting to show that on the said day £100 had been paid to L'. M.
Statement of Offence.
Second Count.
Same as first count.
Pakticulaes of Offence.
A. B., on the day of , in the county of , being clerk or
servant toC. D., with intent to defraud, omitted or concurred in omitting
from or in a cash book belonging to the said C. D., his employer, a
material particular, that is to say, the receipt on the said day of £50
from H. S.
26.
Statement of Offence.
First Count.
Fraudulent conversion of property, contrary to section 1 (1) (a) of
Larceny Act, 1901.
Pabticulabs of Offence.
A. B., on the day of , in the county of , fraudulently con-
verted to his own use and benefit certain property, that is to say, £100
entrusted to him by H. S., in order that he, the said A. B., might retain
the same in safe custody.
520 INDICTMENTS ACT, 1915.
Statement of Offexce.
Second Count.
Fraudulent conversion of property, contrary to section 1 (1) (h) of
Larceny Act, 1901.
Particxilars of Offence.
A. B., on the day of , in the county of , fraudulently con-
verted to his own use and benefit certain property, that is to say, the
sum of £200 received by him for and on account of L. M.
GENERAL INDEX.
Note. — Where an asterisk is prefixed to a title in this Index further details
will be found in the Table of Offences. Thus, for example, all the various
coinage offences are set out only in the Table of Offences and not also in the
Greneral Index.
A.
*ABDUCTION of women and girls, 166
♦ABORTION, attempt to procure, 164
ABROAD, offences committed, 325
ACCESSORY,
distinguished trom principal, 26
before the fact, 26
in manslaughter, 27
trial of, 27
after the fact, 28
by receiving stolen goods, 28
wife as, 28
trial and punishment, 29
punished as principals in misdemeanour and summary conviction, 29
accessories, where tried, 324
ACCIDENT, an exemption from criminal responsibility, 21
ACCOMPLICE,
turning King's evidence, 341
evidence of, 371
ACQUITTAL,
how proved, 347
consequences of verdict of, 411
ADJOURNMENT, ,
of trial, 312
in summary proceedings : v. Remand.
ADMINISTRATION OF GOODS OF FELON, 442
622
INDEX.
ADMIRALTY,
criminal jurisdiction of Court of, 326
offences committed within j(*fisdiction of, where tried, 3-27
ADULT, defined by Summary Jurisdiction Act, 454
ADULTERATION OF FOOD OR DRUGS, 124
AFFIRMATION : v. Oath.
AFFRAY, 86
AGE,
at which person responsible for crime, 19
of child, proof of, 184
AGENT,
bribery of, 74
misappropriation by, 226
AIRCRAFT, regulations as to navigation of, 121
ALIENS, expulsion of criminal, 440
AMBASSADORS, how far amenable to the criminal law, 2b.
ANIMALS, cruelty to, 268
ANIMUS FURANDI, 201
APOSTASY, 56
APPEAL, 474
case stated under Crown Cases Act, 1848, 489
Court of Criminal Appeal, constitution of, 474
powers of a single Judge, 486
who may appeal, 476, 489, 490
in what cases, 477
procedure, 480
bail pending appeal, 484
summary determination of frivolous appeals, 485
legal aid to appellant, 482
costs of appeal, 483
presence of appellant at hearing, 482
shorthand notes of trial, 486
Judge's report, 481
witnesses may be heard, 481
grounds on which appeal may be allowed, 477
powers of Court to deal with technical objectiona, 478
as to special verdicts, 479
INDEX. 52^
Appeal — cont.
powers of court in cases of insanity, 479
as to orders of restitution, 479 *
cannot order a new trial, 489
right of, does not affect prerogative of mercy, 488
further appeal to House of Lords, in what cases, 473
ARMY AND NAVY, offences by members of, 48
ARRAIGNMENT, 338
ARREST,
obstructing lawful, 63
with warrant, 289
without warrant, 293
on hue and cry, 296
rewards for diligence in, 296
privilege of witness from, 378
ARREST OF JUDGMENT, 413
♦ARSON,
definition of, 259
act must be done unlawfully and maliciously, 262
what is a setting fire, 262
the intent, 263
♦ASSAULT,
both a crime and a civil injury, 2, 171
common assault, definition, 170
distinguished from battery, 171
consent, effect of, 171
punishment or compensation, 171
summary jurisdiction in, 172
effect of acquittal or conviction for, on right of action, 458
judicial separation after, 172
defences, 173
indecent, on female, 161
on male, 163
ASSIZES, 278
ATHEISTS, raa;y now be witnesses, 370
ATTEMPT,
what is an, 12
verdict of, on indictment for completed offence, 13. 410'
ATTEMPT,
to injure or alarm the King, 40
to murder, 154 f
AUTREFOIS ACQUIT, plea of, 345
AUTREFOIS CONVICT, plea of, 347
524 INDEX.
B.
BABY-FAKMING, 182
BAIL, 301-305
by Court of Criminal Appeal, 484
BANKER'S BOOKS, entries in, how proved, 39g
^BANKRUPT (v. also Debtors Act),
offences by, 97
prosecution of, directed by the Court, 102
BAR, trial at, 277
BARRATRY, common, 75
BATTERY, 171 : v. Assault.
BENCH WARRANT, 333
BIGAMY, 110
BLASPHEMY, 56
BOROUGH SESSIONS, 281
BORSTAL INSTITUTIONS, 438
BOUNDARY, crimes committed within five hundred yards of, where tried, 323
BRAWLING, m church, 57
BREACH OF PRISON, 61
BRIBERY,
to influence the conduct of one in office, 70
of police-constables, 70
of Customs and Excise officers, 70
of official of a public body, 70
to procure a place or appointment, 71
at elections, 71
corrupt practices, 72
illegal practices, 73
disqualification of persons guilty, 73
of agent or servant, 74
BROTHEL,
keeping, 122
lodging thieves therein, &c., 220
BUOY, interfering with, 266
INDEX. 52'5
BURDEN OF PROOF, 388
♦BURGLARY,
defined, 241
the time, 241
the place, 242
the breaking, 243
the entry, 244
breaking, but no entry, an attempt, 245
burglary distinguished from housebreaking, 246
BURIAL, disturbing, 57
CAMPBELL'S ACT, 89
CAPITAL PUNISHMENT, 425
*CARNAL KNOWLEDGE,
offences against the Criminal Law Amendment Act, 1885, 157-160
of female lunatics, &c., 161
of mental defectives, 161
CASE,
stated by magistrates in Petty Sessions for superior Court, 469
stated by Quarter Sessions for King's Bench Division, 285
CENTRAL CRIMINAL COURT, 279, 280
CERTIFICATE of dismissal by magistrate, 173, 458, 465
CERTIORARI, 335
removal of indictment from inferior Courts to King'e Bench Division, 284
removal to Central Criminal Court, 284
CHALLENGE OF JURORS,
to the array, 352
to the polls, 353
peremptory challenge, 354
CHALLENGE TO FIGHT, 86
CHAMPERTY, 76
CHANCE MEDLEY, 142
CHARACTER OF PRISONER, /
evidence of, 392
cross-examination of prisoner as to, 366
CHARACTER OF SERVANT, forging, or giving false, 248 n.
526 INDEX.
CHAKACTER OF WITNESS,
what questions may be asked, 373
proof of conviction of, 374
CHEATING,
at common law, 239
statutes punishing particular deceits, 239
CHILD,
stealing, abandoning, exposing, 168, 169, 180
cruelty to, 180-181
drunkenness when in charge of a, 130 n.
employing for begging, &c., 183
employment abroad, 184
dangerous performances, 183
search-warrant for, 181, 293
arrest by constable without warrant, in what cases, 182
permitting to frequent brothel, 182
permitting or encouraging seduction ■^f girl, 182
statutory provisions as to undertaking nursing or maintenance of, 182
punishment of, 435
juvenile Courts, 464
not to be present at trial of any person, 464
evidence of, 368
definition of, in Summary Jurisdiction Act, 454
offences by, summary jurisdiction as to, 454
liability of parent for, in certain cases, 436
CHLOROFORM, &c., administering, 175
CHOKE, attempting to, with intent, &c., 175
CHOSE S IN ACTION, larceny of, 192
CIRCUITS, 278
CIRCUMSTANTIAL EVIDENCE, 440
CIVIL INJURIES, contrasted with crimes, 2, 3
^COINAGE, offences relating to, 49-53
COMMON INFORMER, compounding by, 79
COMPANIES, embezzlement, &c., by directors, officers, &c., of, 228, 229
COMPENSATION by prisoner, 443
COMPOUNDING FELONY, 77
misdemeanour, 78
information on penal statute, 78
taking reward for return of stolen property, 78
improperly advertising reward, &c., 78
INDEX. 52'i
COMPUTiSTON, as an exemption from criminal responsibility, 21
CONCEALMENT OF BIRTH, 165
CONCEALMENT OF DOCUMENTS, WILLS, &c., 194, 195
CONFESSION,
on arraignment, 340
before magistrate, 341
to others, when admitted in evidence, 398
to priest, 369
on summary proceedings, 464
^CONSPIRACY : v. Trade,
definition of, 106
classes enumerated, 107
evidence, 109
CONTEMPT OF COURT, 81
CONTRACT OF SERVICE,
wilfully breaking, so as to deprive of gas or water, 105
80 as to endanger life, &c., 105
CONTRIBUTORY NEGLIGENCE, not recognised in manslaughter, 151
CONVICTION, 453
alleging previous conviction in indictment, 315
how proved, 403
disqualifications following, 441
COPIES, when allowed in evidence, 404
CORN, servants taking master's, &c., 210
CORONER,
jurisdiction and Court of, 285
warrant issued by, 320
bail by. 304
inquisition of, 318
committal for trial by, 319
CORPORATIONS. '
may be guilty of certain offences, 23
indictments against, cannot be tried at Quarter Sessions, 284
528 INDEX.
CORPSE, destruction of, to avoid inquest, 64
burning, 123
nuisance by keeping unburied, 123
disinterring or selling, 123, 196 n.
' not the subject of larceny, 196
CORRECTION, killing by, 152
CORROSIVE FLUID, throwing at any person, &c., 176
COSTS,
on certiorari, 337
when allowed to prosecutor or defendant, 379
on summary proceedings, 467
none, as between parties, on appeal, to Court of Criminal Appeal, 483
COUNSEL,
order of speeches and examination, 361
must not comment on prisoner or his wife not giving evidence, 365
privileged communications to, 369
functions of counsel for prosecution and defence, 382
instructed under Poor Prisoners' Defence Act to defend prisoner, 415
COURT-MARTIAL, 48
CREDIT,
fraudulently obtaining, 101
undischarged bankrupt obtaining, for more than JEIO, 100
CREDITOR,
making false claim in bankruptcy, 101
CRIME,
description thereof, 1
contrasted with civil injury, 2, 3
courses open when an act is both a crime and a civil injury, 3
morality and crime, 3
crimes at common law and by statute, 5
crime contrasted with offence, 5
what are indictable crimes, 5, 307
*CRIMINAL LAW AMENDMENT ACT, 1885,
offences against women and girls, 157-160
indecency with another male person, 163
abduction or detention with intent, &c., 166
search warrant for person detained, &c., 294
CUSTOM, hearsay evidence of, 395
CUSTOMS, false declarations as to, 68
INDEX. 029
D.
DEAF AND DUMB PERSONS, responsibility of, 15
♦DEBTORS ACT, offences against, 101
DECLARATION : v. Oath.
DECLARATIONS, FALSE, 68
DEED, how proved, 405
DEER, hunting, killing, &c., 198
DEFECTIVES,
offences in respect of, 186
conviction of, 439
DEMURRER, 342
DEPOSITIONS,
taken before magistrates, 298
before coroner, 319
taken abroad, 377
accused may have copies, 305
deposition of deceased or sick person read at trial, 397
of person whose death is apprehended, 397
DESERTION, 46, 48
of wife by husband, separation order, 172
DESIGN, piracy of registered, 103
DETAINER, forcible, 95
DIRECTOR OF PUBLIC PROSECUTIONS, 320
his duties on appeals, 483
DISCHARGE BY MAGISTRATE, 300, 465
DISORDERLY HOUSE, 122
DRIVING, wanton and furious, 126
DRUGS, administering stupefying, &c., drugs, with intent, Ac, 176
DRUNKENNESS, 18, 19
punishable on summary conviction, 130 n.
habitual criminal drunkards, 440
DUEL,
killing in a, 152.
challenge to fight a, 86
c.L. 34
530 INDEX.
DUPLICITY, count bad for, 314
DWELLING-HOUSE, what is a, under the Larceny Act, 242
DYING DECLAEATION, when received in evidence, 395
E.
ELECTIONS, offences at, 71-73
*EMBEZZLEMENT,
definition of, 222
distinguished from larceny by clerks or servants, 222
the employment as clerk or servant, 223
the receipt for, &c., the master, 224
the unlawful appropriation, 224
summary jurisdiction, 456
EMBRACERY, 75
ESCAPE, 60
EVIDENCE,
definition of, 388
burden of proof on prosecution, 388
when on defence, 389
rebutting, when permitted, 359
what must be proved, 390
what may not be given in evidence, 390
as to other offences, when allowed, 390
of character, 392
best evidence must be given, 392
as to written documents, 392
hearsay rejected as a rule, 393
when it may be given, 395-7
of complaint by a prosecutrix, 394
of res gestce, 395
dying declarations, 395
statements of deceased persons, when admissible, 396
statements made in prisoner's presence, when admissible, 400
circumstantial, distinguished from direct, 401
presumptions classified, 402
written evidence, 402
records and Acts of Parliament, 402, 403
matters quasi of record, 404
written documents of private tiature, as deeds, 404
handwriting, how proved, 255, 405
points in which rules of evidence in civil and criminal cases differ, 4C
INDEX.
EXAMINATION : v. Witness ; Evidence
of witnesses before the magistrate, 299
by grand jury, 329
by coroner, 319
order of examination by counsel on the trial, 3G1
what witnesses should be called, 381
functions of counsel for prosecution and defence, 382
examination-in-chief, 383
leading questions not allowed, except in certain cases, 383
witness proving hostile, 385
cross-examination, 385
re-examination, 386
questions put through Judge, 386
objections, how made, 386
EXEMPTIONS from criminal responsibility, 14
EXPERTS, evidence of, 384
EXPOSURE,
indecent, of person, 112
of indecent books, pictures, Ac, 113
EXTORTION, Ac, by public officers, 79
F.
FACTORIES AND WORKSHOPS, regulation of, 126
FALSE CHARACTER, forging or giving to servant, 248 n.
FALSE IMPRISONMENT, 186
*FAL8E PRETENCES,
obtaining goods or money by means of, 230
distinguished from larceny, 230
the pretence must be of an existing fact, 231
false pretence need not be expressed in words, 233
conviction may be for the attempt, 235
the intent to defraud, 235
evidence of subsequent or prior obtaining, 235
inducing by fraud the execution of valuable securities, 236
frauds by money-lenders, 237
FALSIFICATION OF ACCOUNTS, 225
FEAR OF GREAT AND UNLAWFUL HARM,
when an exemption from criminal responsibility, 21
FELONY, distinguished from misdemeanour, 6
c.L. ,34'
631
532 INDEX.
FINE,
punishment by, 428
how enforced, when imposed by magistrate, 466
FORCIBLE ENTRY OR DETAINER, 95
FOREIGN ENLISTMENT ACT, 44
FOREIGNERS, not exempt from criminal responsibility, 23
FORFEITURE,
of goods, abolition of, on conviction, 7, 441
of office, on conviction for treason or felony, 441
;=FORGERY,
definition of, 248
forgery at common law only a misdemeanour, 248
instruments dealt with in the Forgery Act enumerated, 251
nature of the instrument forged, 249 n. \
the fabrication constituting, 249
the intent to defraud, 250
the uttering, 250
demanding, &c., by means of forged instrument, 258
other cases provided for by statutes, 263
FORTUNE TELLING, 58
G.
^=GAME,
night poaching, &c., 133
day poaching, summary conviction for, 135
poaching fish, 135
killing game and wild birds during close season, 135
GAMING, 114
GAMING-HOUSE,
steps taken by Legislature to suppress, 115
club, 116
GAOL DELIVERY, commission of, 279
GENERAL ISSUE of not guilty, 348
GOVERNMENT, various contempts and high misdemeanours against, 54
INDEX. 533
GRAND JURY,
should not ignore bill on ground of insanity, 17
charge to, 328
prosecution with or without previous finding by, 306
how chosen, 328
examination of witnesses by, 329
finding by, 329
GUILTY KNOWLEDGE,
in receiving stolen goods, 219
in uttering forged instruments, 256
evidence of other offences when allowed in proof of, 390
GUNPOWDER,
injuries by explosion of, to the person, 176
to property, 263, 265 •
H.
HABEAS CORPUS for removal of defendant to plead, 332
HABEAS CORPUS ACT,
accused entitled under, to copy of warrant of commitment, 300
HABEAS CORPUS AD TESTIFICANDUM, 378
HABITUAL CRIMINALS, 431
HABITUAL DRUNKARDS, 440
HARBOURING THIEVES, 220
HIGH SEAS,
offences against the law of nations committed on, 32
robbery on, or piracy, 31
offences committed on, where tried, 37
HIGHWAYS, nuisances to, 120
costs of prosecution for obstruction, &c., of, 121
*HOMICIDE : r. Murder; Manslaughter,
presumption of malice, 138
justifiable, 138
excusable, 141
suicide, 144 /
murder, 144
manslaughter, 148
whether murder, manslaughter, or non-felonious, distinguished in several
cases. 152
534 INDEX.
HOUSEBREAKING,
distinguished from burglary, 246
distinguished from larceny in dwelling-house, 247
HOUSEBREAKING INSTRUMENT, being found at night with, 245
I.
IDLE AND DISORDERLY PERSONS, 127
IGNORANCE,
of law, never excuses, 20
of fact, when it excuses, 21
ILLEGAL PRACTICES AT ELECTIONS, 73
ILLEGAL TRAINING AND DRILLING, 47
ILLNESS,
of juror, 355
of witness, 334, 397
of prisoner, 340
IMPEACHMENT, 274
IMPRISONMENT, with and without hard labour, 427
pending trial, 299
INCEST, 163
INCITING to commission of crime, 27
INCORRIGIBLE ROGUE, 129
may appeal from sentence. 477
INDECENT CONDUCT, Ac, 112
INDICTABLE CRIMES, what are, 5
INDICTMENT,
definition of, 307
forms of, see Appendix
ownership of property, 311
statement of time, place, &c., 312
negativing provisos in statutes, 310
amendment of, 312
counts in, 314
charging more than one offence in the same count, 314
different offences in different counts, 314
count for previous conviction, 315
joinder of defendants, 315
INDEX.
Indictment — cont.
cases in which time is limited for pret'errmg, 315
before the grand jury, 329
consequences of being thrown out, 330
INDUSTRIAL SCHOOL, 437
INFANCY,
when it exempts from criminal responsibility, 19
of witness. 369
INFANT, soliciting, by circular, to bet or borrow, 118 ■
INFORMATION,
definition of criminal, 316
information, ex officio, 316
form of, 317
information by Master of the Crown Office, 317
how tried, 318
INFORMATION TO FOUND APPLICATION FOR WARRANT, 289
INFORMATION TO FOUND SUMMARY PROCEEDINGS, 460
INNUENDO, in indictment for libel, 90
INSANITY.
an exemption from criminal responsibility, 15
varieties of, 15
history of law as to, 16
the existing law as declared in M'Naughten's Case, 16
partial, 16
medical evidence, 17
trial in cases of, 17
is a bar at any stage to further proceedings, 18
special verdict of, 17
no appeal from finding of, 476
powers of Court of Criminal Appeal in cases of, 479
appearing at arraignment, 339
insanity of witness, 368
reprieve, if after judgment, 447
INTENT.
in larceny, 201
in false pretences, 235
in forgery, 250, 391
in arson, 10
INTIMIDATING PARTIES OR WITNESSES, 82
INVOLUNTARY, meaning of the term, 10, 14
IRRESISTIBLE IMPULSE. 17
5.35
536 INDEX.
J.
JUDGMENT, 413
arrest of, 413
of magistrate, on summary conviction, 465
JUDICIAL SEPAKATION, order having effect of, 172, 457
JURY : V. Grand Jury; Petty Jury.
JUSTICE OF PEACE : v. Magistrate.
JUVENILE COURTS, 464
K.
KING'S BENCH DIVISION, 277
L.
*LARCENY,
distinguished from false pretences and embezzlement, 190, 207, 222
definition of, 191 ^
what things may be the subjects of, 191
at common law, only personal goods, 191
severance, effect of, 191, 192
animals, law as to, 197
grand and petty larceny, former distinction, 200
the wilfully wrongful taking possession, 201
if claim of right, no felony, 201
possession, obtained lawfully without fraudulent intent in the first
instance, 201
in cases of bailment, 202
by joint tenant or partner, 202
by husband or wife, 203
the taking, actual or constructive, 204
no larceny where the right of property, as well as of possession, is partert
with, 204
where the delivery does not alter the possession in law. 205
possession obtained by trick, 206
welshing, 207
of money paid by mistake, 208
of things found, 208
the taking must be of another s goods. 209
asportation, 209
need not be lucri causa. 219
servants taking master's corn 210
summary jurisdiction in larceny, 504, 505, 507
INDEX. 537
♦TilBEL,
au offence against the public peace, 88
definition of, 88
civil and criminal proceedings, 89
who are criminally liable for, 92
fair comment, 93
privilege, 93
on deceased persons and foreigners, 89
truth of the libel, 89
form of libel, 90
publication of, 91
malice, 92
the province of the jury, 91
costs, 94
by husband on wife, and vice versa, 94
threatening to publish, &c., in order to extort, 88
blasphemous libel, 57
seditious libel, 42
LICENCE UNDEB PENAL SERVITUDE ACTS, regulations as to holdere
of, 449
LORD HIGH STEWARD, court of, 276
LORDS : House of, in what cases an appeal to, 475
LOTTERIES, 122
LUNATICS : 0. Insanity,
assault on, 185
carnal knowledge of female, 161
cruelty to, 185
M.
MAGISTRATE : r. Summary Conviction
issue of warrant by, for indictable offence, 289
issue of warrant by, in summary proceedings, 461
summons for indictable offence, 289 '
in summary proceedings, 460
proceedings before, in indictable cases, 298
on summary proceedings, 460
binding over witness, 299
remand, discharge or committal for trial, 299, 300
MAINTENANCE, 76
MAINTENANCE BY HUSBAND OF DESERTED WIFE, 172
538 INDEX.
MALICE.
equivalent, in legal signification, to criminal intention, 11
express or implied, 11
in libel, 92
in malicious injury, 270
aforethought (prepense), in murder, 146
♦MALICIOUS INJURY, 263
summary jurisdiction as to, 459
MANSLAUGHTER, 148
voluntary, 148
distinguished from homicide se aefendendo, 149
time of death, 146
involuntary, 150
by negligence, 150
by fighting, 152
by correction, 143, 153
while doing an unlawful act, 143, 163
a dangerous act, 152
of officers of justice, 153
by officers, 154
MAN-TRAPS, setting, 135
MARGARINE, 126
MARINE INSURANCE, gambling in, 114
MARKET OVERT, sale of goods in, effect of conviction, 417
MASTER, when liable for offences of servant, 12, 124
MATRONS, jury of, 447
MENS REA, 11
MERCHANDISE MARKS ACT. 1887, 102
search warrants under, 291
MISDEMEANOUR, distinguished from felony, 6, 7
MISPRISION,
of treason, 39
of felony, 79
MONEY-LENDERS,
registration of, 131
frauds by, 237
MOTIVE, as a clue to the intention, 10
INDEX. 539
MOTOR-CAR, limi^tion of speed of, 127
MURDER,
definition, 144
offender must be of sound memory and discretion, 144
the unlawful killing, 145
cause of death, 146
time of death, 146
finding of body, 146
deceased must have been a reasonable creature, in being and under the
king's peace, 146
the malice aforethought, 146
accessories after the fact, 148
murder in fighting, 142, 152
in correction, 143, 153
whilst doing another act, 143, 153
of officers of justice, 153
by officers, 139, 154
attempt to murder, 154
conspiracy to murder, 107
inciting to murder, 107
MUTE, prisoner standing, 339
MUTINY, inciting to 46
N.
NOTICE,
to produce, 393, 405
of additional evideuoe at trial, 371
*
NUISANCE,
common or public, 118
when indictable, 119
abatement of, 119
to highways, bridges, &c., 120
offensive trades, Ac, 121
when caused by works authorised by statute, 121
houses as, 122
lotteries, 122
miscellaneous, 122
0.
OATH.
nature of, in perjury, 64, 65
of juror, 357
or affirmation of witness, 371
voluntary oaths, 69
640
INDEX.
OFFICER, PEACE,
allowing escape, 60
assaulted in execution of duty, 63, 179
refusing to aid, 64
homicide by and of : v. MuBDER.
arrest by : c. Arrest.
OFFICER, PUBLIC, misconduct of, 79
OFFICIAL SECRETS, disclosure of, 54
ONUS PROBANDI, 388
OUTLAWRY, 333
OYER AND TERMINER, Courts of, 278
P.
PALMISTRY, 58
PANEL OF JURORS, 352
PARDON,
when may be pleaded, 348
when the Sovereign cannot pardon, 448
how given and construed, 448
conditional, 448 : v. Licence.
prerogative of mercy not affected by Criminal Appeal Act, 1907, 488
PARLIAMENT, High Court of, 274
PAWNBROKER,
receiving stolen property, 220
compensation to, for goods ordered to be given up, 421
PEDIGREE, falsification of, 194 n.
hearsay evidence of, 395
PEERS, modes of trial of, 274
PEINE FORTE ET DURE, 339
PENAL SERVITUDE,
being at large during term of, 62
as a punishment, 426
INDEX. 541
*PERJURY,
definition of, 64
when oath taken in foreign proceedings or abroad, 65
must be taken wilfully and falsely, 65
materiality of matter sworn, 66
a question for judge, 66
application of Vexatious Indictments Act, 66
power of tribunal to commit witness for, 66
corroboration required, 67
false statements on oath when not in judicial proceedings, 67
false statutory and other declarations, 68
subornation of, 69
PERPETUATION OF TESTIMONY, 397
^^'PERSONATION, FALSE, 237-239
of voters, 73
PETTY JURY,
who are liable to serve, 350
challenge (q.v.), 352
exclusion by Crown, 354
separation of jury if trial not concluded, 355
special jury, 356
jury de medietate, 286, 356
PETTY SESSIONAL COURT, 463
PETTY TREASON, now regarded simply aa a murder. M n.
PHYSICAL COMPULSION, an exemption from criminal responsibility, 14
TIRACY,
at common law, 31
by statute, 32
?LACE OF TRIAL,
general rule as to, 322
exceptions, 322, et seq.
receivers, where tried. 323
accessories, 324
offences committed abroad, 325
PLAY, fraudulent winning at. pnrjishahle as false pr^tfnces. ^fi
PLEAS.
names and order of, 334
to the jurisdiction. 334
special pleas m bar. 345
autrefois acquit, 345
autrefois convict, 34?
pardon. 348
;ieneral issue of not guilty, 348
plea of justification m libel, 92, 348 n.
542 INDEX,
PLEAS OF THE CROWN, origin of the term, 4
POACHING, 133
POCKET-PICKING, 215
POLICE SUPERVISION, 429
POOR PRISONERS' DEFENCE ACT, 1903, 415
POSSE COMITATUS, 85
POSSESSION,
recent possession of stolen goods, 221
distinguished from property, 189
POUND BREACH, 63
PRESENTMENT, 306
PRESUMPTIONS classified, 402
PRESUMPTIVE EVIDENCE, 401
PREVENTION OF CORRUPTION, 74
PREVENTIVE DETENTION, 431
PREVIOUS CONVICTION,
evidence of, on indictment for receiving, 219
when count may be added for, 315, 412
how proved, 403
when evidence of, may be given before subsequent conviction, 392
when defendant may be cross-examined as to, 366
punishment for offences after, 426, 427
sentence of police surpervision after, 429
PRIEST, confession to, 369
PRINCIPAL : v. Accessory,
in first or second degree, 26
all are principals in treason, 29
as to misdemeanour, 29
PRISONER,
presence of, at trial, 7, 340
at hearing of appeal, 482
statement by, before magistrate, 299
at trial, 360
evidence of, 365 : v. Witness.
IND£X. 643
PRIVILEGE
in libel, 93
between solicitor and client,' 369
PROBATION OF OFFENDERS ACT, 1907, 422, 465
PROPERTY,
found on prisoner, 419, 420
in possession of police, 420
PROSECUTION, modes of, 306
PROVOCATION, effect of, in homicide, 149
PUBLIC STORES, unlawful dealings with, 47
PUBLIC WORSHIP, disturbing, &c., 57
PUNISHMENT,
general nature of, 1
the test whether a procedure is civil or criminal, 4
objects of, 443
Q. •
QUARREL, killing in sudden, 148
QUARTER SESSIONS FOR THE COUNTY, 281
R.
RAILWAY,
offences endangering passengers on, 177
setting fire to buildings of, 269
RAPE, 155
who cannot be convicted of, 155
essentials of the crime, 155
credibility of testimony of the woman, 156
evidence of defendant's wife, 157
RECEIVING GOODS STOLEN OR OBTAINED BY FALSE PRETENCES,
goods obtained by false pretences, 218
when a felony, when a misdemcaaour, 218
offender, how tried, 218
evidence, 219
guilty knowledge, 219
evidence of previous conviction, 219, 392
of other stolen goods found in prisoner's possession, 219
several receivers may be charged by same indictment, 220
when property stolen abroad, 220
544 INDEX.
EECOGNISANCE,
nature of, 433
when it may be required, 432-434
forfeiture and estreat of, 43S
RECORD, Court of, 81 n.
RECORDER,
of London, at Central Criminal Court, 280
of borough, 282
REFORMATORY, 437
for habitual criminal drunkards, 440
RELIGION, want of, does not affect competency of witness, 369
REMAND of accused by magistrate, 299
REPLY, right of, by counsel for prosecution, 3G1
REPORT of judge at trial, to Court of Appeal, 481
REPRIEVE, 447
RESCUE, 62
RES GEST^, 395
RESTITUTION,
in forcible entry and detainer, 95
of goods stolen or obtained by false pretences, 416
order for, how affected by Criminal Appeal Act, 1907, 479
REWARD,
for apprehension of offender, 296
taking corruptly, for helping to property stolen, kc, 77
improperly advertising for return of such property, 77
for helping to recover stolen dog, 199
RIGHT, CLAIM OF, a defence in larceny, 201
on charge of demolishing, &c., 264
on charge of wilful damage, 270, 459
ousts jurisdiction of magistrates, 452
RIOT, 83
RIOT ACT.
proclamation under, 85
INDEX. 545
*ROBBERY.
on high seas is piracy, 31
definition, 212
gist is the force or bodily fear, 213
possession of the property must be obtained, 214
taking must be from the person, or in the presence, 214
assault with intent to rob, 215
ROGUES AND VAGABONDS, punishment of, 128
ROUT, 84
S.
SABBATH, profanation of, 58
SACRILEGE, 247
SALE OF FOOD AND DRUGS ACT, 1875, 124
SEA,
sending unseaworthy ship to, 130
neglect of duty by masters, &c., of ships at, 131
SEAMAN.
forcing on shore, 178
leaving behind, &c., 178
SEARCH, for game, guns, &c., 459
SEARCH-WARRANT. 291
SECONDARY EVIDENCE, 405
SECURITY FOR THE PEACE, 434
SEDITION,
what constitutes. 42
truth of seditious libel no defence, 42
SEEDS, adulterating or killing, 126
SHERIFF,
arrest by, 293
extortion and misconduct by. 80
SLANDER, when indictable, 90
♦SLAVES, offences as to, 33
♦SMUGGLING, 96, 97
time limited for prosecution. 97
546
INDEX.
SOLDIEK,
inciting to mutiny, &c., 46
punishable by civil Court, 48
SOLICITOR,
concealment of documents of title by, 194 n.
when incompetent to give evidence against client, 369
SOVEREIGN, incapable of committing crime. 23
SPECIAL JURY, 356
SPRING-GUN, setting, 135
STREET BETTING, 114
SUBORNATION OF PERJURY, 69
SUBPOENA, 377
SUICIDE, 144
SUMMARY CONVICTIONS, 499
jurisdiction, &c., of magistrates, 451, 452
right to trial by jury if offence punishable by more than three months'
imprisonment, 453
classification of offences dealt with summarily, 464
proceedings, 460
the information, 460
limitation of time, 460
summons, 460
warrant, 461
hearing in absence of accused, 462
summons for witness, 462
the hearing, 462
"petty sessional Court," 463
one party not appearing, 463
juvenile Courts, 464
proceedings at hearing, 464
conviction or dismissal, 465
judgment, 465
enforcing fines, 466
costs, 467
appeal, 469
to Quarter Sessions, 469
case stated to superior Court, 470
removal to King's Bench Division by certiorari, 472
SUMMING-UP OF THE JUDGE, 362
INDEX. 547
SUMMONS, for indictable offence, 289
SWEARING, profane, 58
TELEGRAPH,
disclosing or intercepting messages, 218
injury to, 267
THEFT BOTE, 77
THREATS AND THREATENING LETTERS, extortion by, 86, 87, 88
stealing in dwelling-house with, 247
used to witness, 82
in trade disputes, 104
TICKET OF LEAVE, 449
TIME, of trial, 334
*TRADE,
unlawful interference with, by combinations, &c., 104
trade union, 104
acts criminally punishable, 104
conspiracy in connection with trade disputes, 105'
TRADE-MARKS, counterfeiting and falsely a'pplying, 102
TRADES, offensive or dangerous, are nuisances, 121
TRANSPORTATION, penal servitude substituted for, 426
♦TREASON,
why termed " high," 34 n.
classification of acts of. 34
the statute 25 Edw. III., 35
the overt act, 35
compassing, &c., death of Sovereign, Ac, 36, 38
violating King's wife, &c., 35
levying war, 36
adhering to Sovereign's enemies, 36, 37
additions to the list of acts which are. 37
may be committed by certain aliens, 38
time limited for prosecution, 38
prisoner may have copy of indictment and list of witnesses, 88
misprision of, 39
548 INDEX.
TEEASON-FELONY, 46
TEEASURE TROVE, concealment of, 53
TRUSTEE, sanction of Attorney-General required on prosecution of, 227
U.
UNIVERSITY COURTS, 286
UNLAWFUL ASSEMBLIES, 84
*UNLAWFUL OATHS, 42
UNLA^yFUL SOCIETIES, 44
UNNATURAL OFFENCE, 163
V.
VAGRANCY, 127
VENUE : V. Placb of Trial
VERDICT, 408
general, partial, or special, 408, 409
in case of co-defendants, 409
of attempt on indictment for complete crime, 410
for crime other than that charged, 409, 411
may be taken on each count, 411
VEXATIOUS INDICTMENTS ACT, 330
VIEW OF LOCUS IN QUO BY JURY, 457
VIVISECTION, 268 n.
W.
WAR, PRISONER OF, aiding to escape, 61
W^ ARRANT, '
to arrest, 289
to whom granted, 290
if indictment has been found, 332
if accused is in custody, 333
form of, 290 n.
bacliiug, 290
general warrants, illegal, 291
in case of person charged with summary offence. 461
to compel attendance of witness, 462
INDEX. 549
WEIGHTS AND MEASURES, false, 241
WHIPPING, 428, 454
WIFE,
when not criminally responsible, 22
not an accessory after the fact, 28
as witness for or against husband, 305-367
WILD BIRDS' PRESERVATION, 135
WELL, an essential of a crime, 9
WITCHCRAFT, 68
WITHDRAWAL FROM PROSECUTION, 458
WITNESS: v. Deposition; Evidence; Examination
former incompetency of accused and his consort, 363
accused cannot be called as witness for prosecution, 364
except under Evidence Act, 1877, 264
in what cases his consort may be, 364
accused may give evidence in his defence, 365
evidence, for defence, of wife or husband, 365-367
evidence of co-defendant, 368
incompetency on account
of insanity or infancy, 368
of relationship of legal adviser, 369
as to want of religious belief, 370
objection to competency when made, 371
credibility of, 372
general character of, 373
what questions witness may refuse to answer, 374
number of, 375
accomplice as, 376
attendance of, how secured, 377
production of documents by, 377
evidence taken abroad, 377
consequences of failure to appear, 377
attendance of witness who is in custody, 378
privilege from arrest, 378
expenses of, 379
refreshing memory of, 384
ordering out of Court, 382
may be heard by Court of Criminal Appeal, 481
r.L. 35
LIST P. September, 192L
BOOKS FOR LAW STUDENTS.
SUBJECT INDEX. Pagb
Admiralty- ---4
Agency - - - -4
Arbitration 4
Banking - ...5
Bankruptcy 5
Bills of Exch&nge 6
Carriers 6
Common Law - - - - - - -7, 8, 9
Companies 9, 10
Conflict of Laws 10
Constitutional Law - - - - 10, 11, 12
Contracts 12
Conveyancing - - - - - - - 12, 13
Criminal Law 14
Easements - - - - - - - -15
Ecclesiastical Law 15
Equity 15, 16, 17
Evidence 17, 18, 19
Examination (iuides 19
Executors --------20
Insurance Law ..-.--.20
International Law ------ 20,21
Jurisprudence 21
Latin 22, 23
Legal History 21,22
Legal Maxims 22, 23
Local Government - - - - - - -23
Mercantile Law 24
Mortgages --24
Partnership 25
Personal Property 25, 26
Procedure 26
Real Property 27, 28
Receivers 28
Roman Law 28, 29, 30
Sale of Goods 30
Statutes 30,31
Torts 31, 32
Wills 32
SWEET & MAXWELL, LIMITED, ^ c»--»««-y ^-»«
'I ILioir&clork, inr.CZ.
Suggested Course of Reading for the
Bar Examinations.
ROMAN LAW.
Hunter's Introduction or Kelke's Primer or Epitome.
Advisable also is Sandars' Justinian.
CONSTITUTIONAL LAW.
Chalmers & Asquith. Thomas's Leading Cases.
Hammond's Legal History.
CRIMINAL LAW AND PROCEDURE.
Odgers' Common Law, or Harris's Criminal Law, and
Wilshere's Leading Cases.
REAL PROPERTY.
Williams (with Wilshere's Analysis), or Edwards. For
revision, Kelke's Epitome.
CONVEYANCING.
Deane & Spurling's Introduction, and Clark's Students'
Precedents. Or Elphinstone's Introduction.
COMMON LAW.
Odgers' Common Law (with Wilshere's Analysis), or
Indermaur's Common Law ; or Carter on Contracts, and
Eraser on Torts. Cockle's Leading Cases.
EVIDENCE AND PROCEDURE.
Odgers' Common Law, Phipson's Manual of Evidence,
Cockle on Evidence, Wilshere's Procedure.
EQUITY.
Snell or Wilshere. For revision, Blyth's Analysis.
COMPANY LAW.
Smith's Summary.
[ 2 ]
Suggested Course of Reading for the
Solicitors' Final Examination.
For detaUed Courses see Indermaur's Self-Preparation for
the Final Examination.
COMMON LAW.
Indermaur's Principles of the Common Law.
Anson or Pollock on Contracts.
RiNGwooD or Salmond on Torts.
Smith's Leading Cases, with Indermaur's Epitome, or
Cockle & Hibbert's Leading Cases.
EQUITY.
Snell's Principles of Equity.
Blyth's Analysis of Snell.
White & Tudor's Leading Cases, with Indermaur's
Epitome.
Strahan on Partnership.
Underhill on Trusts.
REAL AND PERSONAL PROPERTY AND
CONVEYANCING.
Williams or Edwards on Real Property.
Williams or Goodeve on Personal Property.
Wilshere's Analysis of Williams.
Elphinstones or Deanes Introduction to Conveyancing.
Indermaur's Epitome of Conveyancing Cases.
PRACTICE OF THE COURTS.
Indermaur's Manual of Practice.
BANKRUPTCY.
Ringwood's Principles of Bankruptcy.
CRIMINAL LAW.
Harris's Principles of Criminal Law.
Wilshere's Leading Cases.
PROBATE, DIVORCE, AND ADMIRALTY.
Gibson's Probate, Divorce, and Atimiralty.
ECCLESIASTICAL LAW.
iltj Smith's Summary.
COMPANIES.
Smith's Summary.
[ 3 ]
NOTICE. — In consequence of fluctuation in cost of printing
and materials, prices are subject to alteration without
notice.
ADMIRALTY.
SMITH'S Law and Practice in Admiralty. For the
use of Students. By Eustace Smith, of the Inner
Temple. Fourth Edition. 232 pages. Price ids. net.
" The book is well arranged, and forms a good introduction to
the subject." — Solicitors' Journal.
"It is, however, in our opinion, a well and carefully written
little work, and should be in the hands of every student who is
taking up Admiralty Law at the Final." — Law Students' Journal.
"Mr. Smith has a happy knack of compressing a large amount
of useful matter in a small compass. The present work will
doubtless be received with satisfaction equal to that with which
his previous ' Summary ' has been met." — Oxford and Cambridge
Undergraduates' Journal.
AGENCY.
BOWSTEAD'S Digest of the Law of Agency. By
W. BowsTEAD, Barrister-at-Law. Sixth Edition.
485 pages. Price £1 7s. 6d. net.
"The Digest will be a useful addition to any law library, and
will be especially serviceable to practitioners who have to advise
meicantile clients or to conduct their litigation, as well as to
students, such as candidates for the Bar Final Examination and
for the Consular Service, who have occas on to make the law of
agency a subject of special study." — Laiv Quarterly Review.
ARBITRATION.
SLATER'S Law of Arbitration and Awards. With
Appendix containing the Statutes relating to Arbi-
tration, and a collection of Forms and Index. Fifth
Edition. By Joshua Slater, Barrister-at-Law. 215
pages. Price 5s. net.
[ 4 ]
BANKING,
RINQWOOD'S Outlines of the Law of Banking:.
1906. 191 pages. Price 5s. net.
"... The book is in a most convenient and portable form,
and we can heartily commend the latest production of this well-
known writer to the attention of the business community." —
Financial Times.
BANKRUPTCY.
MANSON'S Short View of Bankruptcy Law. By
Edward Manson, Barrister-at-Law. Third Edition.
351 pages. Price 15s. net.
A book of 350 pages, giving the salient points of the law. The
author follows the order of proceedings in their historical sequence,
illustrating each step by forms and by some of the more important
cases.
" It makes a thorough manual for a student, and a very handy
book of reference to a practitioner." — Law Magazine.
RINQWOOD'S Principles of Bankruptcy. Embodying
the Bankruptcy Acts ; Leading Cases on Bankruptcy
and Bills of Sale ; Deeds of Arrangement Act ;
Bankruptcy Rules ; Deeds of Arrangement Rules,
1915 ; Bills of Sale Acts, and the Rules, etc.
Thirteenth Edition. 431 pages. Ptice £1 5s. net.
"We welcomes new edition of this excellent student's book.
We have written favourably of it in reviewing previous editions,
and every good word we have written we would now reiterate and
perhaps even more so. . . . In conclusion, we congratulate
Mr. Ringwood on this edition, and have no hesitation in saying
that it is a capital student's book." — Law Students' Journal.
" The author deals with the whole history of a bankruptcy from
the initial act of bankruptcy down to the discharge of the bankrupt,
and a cursory perusal of his work gives the impression that the
book will prove useful to practitioners as well as to students.
The appendix also contains much matter that will be useful
to practitioners, including the Schedules, the Bankruptcy Rules,
the Rules of the Supreme Court as to Bills of Sale, and various
Acts of Parliament bearing upon the subject. The Index is
copious." — Accountants' Magazine.
[ 5 ]
BILLS OF EXCHANGE.
JACOBS on Bills of Exchange, Cheques, Promissory
Notes, and Negotiable Instruments Generally, in-
cluding a digest of cases and a large number of
representative forms, and a note on I O U's and Bills
of Lading. By Bertram Jacobs, Barrister-at-Law.
284 pages. Price 7s. 6d. net.
OPINIONS OF TUTORS.
" It appears to me to be a most excellent piece of work."
"After perusing portions of it I have come to the conclusion that
it is a learned and exhaustive treatise on the subject, and I shall
certainly bring it to the notice of my pupils."
WILLIS'S Negotiable Securities. Contained in a
Course of Six Lectures delivered by William Willis,
Esq., K.C., at the request of the Council of Legal
Education. Third Edition, by Joseph Hurst, Bar-
rister-at-Law. 226 pages. Price 7s. 6d. net.
" No one can fail to benefit by a careful perusal of this volume."
— Irish Law Times.
"We heartily commend them, not only to the student, but to
everybody — lawyer and commercial man alike." — The Accountant.
"Mr. Willis is an authority second to none on the subject, and
in these lectures he summarized for the benefit not only of his
confreres but of the lay public the knowledge he has gained
through close study and lengthy experience."
CARRIERS.
WILLIAMS' Epitome of Railway Law. Part L The
Carriage of Goods. Part II. The Carriage of
Passengers. By E. E. G. Williams, Barrister-at-
Law^. Second Edition. 231 pages. Price los. net.
A useful book for the Bar and Railway Examinations.
. [ 6 ]
COMMON LAW.
(See also Broom's Legal Maxims post).
ODQERS on the Common Law of England. By W.
Blake Odgers, K.C, LL.D., Director of Legal Educa-
tion at the Inns of Court, and Walter Blake Odgers,
Barrister-at-Law. Second Edition. 2 vols. 1,474
pages. Price £"3 los. net.
Odgers on the Common Law deals with Contracts, Torts,
Criminal Law and Procedure, Civil Procedure, the Courts, and
the Law of Persons.
The Student who masters it can pass the following Bar Examina-
tions : —
(1) Criminal Law and Procedure.
(2) Common Law.
(3) General Paper — Part A.
And (with Cockle's Cases and Statutes on Evidence)
(4) Law of Evidence and Civil Procedure.
(5) General Paper— Part III.
SOME OPINIONS OF PROFESSORS AND TUTORS.
1 . The Bar. — " I have most carefully examined the work, and
shall most certainly recommend it to all students reading with me
for the Bar Examinations."
" It appears to me to be an invaluable book to a student who
desires to do well in his examinations. The sections dealing with
Criminal Law and Procedure are, in my opinion, especially
valuable. They deal with these difficult subjects in a manner
exactly fitted to the examinations ; and in this the work differs
from any other book I know."
" I have been reading through Dr. Odgers' Common Law, and
find it a most excellent work for the Bar Final, also for the Bar
Criminal Law."
2. The Universities. — " I consider it to be a useful and
comprehensive work on a very wide subject, more especially from
[ 7 ]
Common Law — continued.
the point of view of a law student. I shall be glad to recommend
it to the favourable attention of law students of the University."
3. Solicitors. — The Book for the Solicitors' Final. — "Once
the Intermediate is over, the articled clerk has some latitude
allowed as to his course of study. And, without the slightest
hesitation, we say that the first book he should tackle after
negotiating the Intermediate is ' Odgers on the Common Law.'
The volumes may seem a somewhat ' hefty task,' but these two
volumes give one less trouble to read than any single volume of
any legal text-book of our acquaintance. They cover, moreover,
all that is most interesting in the wide field of legal studies in a
manner more interesting than it has ever been treated before."
INDERMAUR'S Principles of the Common Law.
Intended for the use of Students and the Profession.
Thirteenth Edition. By A. M. Wilshere, Barrister-
at-Law. [To be published December, 1921.
" Mr. Indermaur renders even law light reading. He not only
possesses the faculty of judicious selection, but of lucid exposition
and felicitous illustration. And while his works are all thus
characterised, his ' Principles of the Common Law ' especially
displays those features." — Irish Law Times.
" It seems, so far as we can judge from the parts we have
examined, to be a* careful and clear outline of the principles of the
common law. It is very readable ; and not only students, but
many practitioners and the public, might benefit by a perusal of
its pages." — Solicitors' Journal.
INDERMAUR'S Leading Common Law Cases; with
some short notes thereon. Chiefiy intended as a
Guide to " Smith's Leading Cases." Tenth Edition,
by E. A. Jelf. Master of the Supreme Court. With
six illustrations by E. T. Reed.
[To be published December, 1921 .
Mr. Reed's humorous illustrations will help to impress the facts
of the cases on the memory of the student.
COCKLE & HIBBERT'S Leading Cases in Common
Law. With Notes, Explanatory and Connective,
[ 8 ]
Common Law — continued,
presenting a Systematic View of the whole Subject.
By E. Cockle and W. Nembhard Hibbert, LL.D.,
Barristers-at-Law. 962 pages. Price £2 2S. net.
This book is on the same lines as Cockle's Cases on Evidence.
Following is a short summary of its contents : —
Nature of the Common Void, etc.. Contracts. Negotiable instru'
Law. Quasi-Contracts. ments.
Common Law Ri8;ht8 and Agrency. Partnership.
Duties. Bailments. 5ale of Ooods.
Contract, including: Con- Carriers. Torts,
tracts of Record. Landlord and Tenant. Damagres.
Specialty Contracts. Master and Servant. Law of Persons.
Simple Contracts. Conflict of Laws.
SMITH'S Leading: Cases. A Selection of Leading
Cases in various Branches of the Law, with Notes.
Twelfth Edition. By T. Willes Chitty, a Master
of the Supreme Court, J. H. Williams, and W. H.
Griffith, Barristers-at-Law. 2 vols. Price ^4 net.
This work presents a number of cases illustrating and explaining
the leading principles of the common law, accompanied by
exhaustive notes showing how those principles have been applied
in subsequent cases.
J ELF'S Fifteen Decisive Battles of the Law. By
E. A. Jelf, Master of the Supreme Court. Second
Edition. Price 6s. 5d. net.
Mr. Jelf narrates with light and skilful touch the incidents and
results of fifteen of the most important decisions ever given by the
judges, and he shows the effect which each decision has had upon
the general body of English Law.
COMPANIES.
KELKE'S Epitome of Company Law. Second Edi-
tion. 255 pages. Price 6s.
"No clearer or more concise statement of the law as regards
companies could be found than is contained in this work, and any
student who thoroughly masters it need have no fear of not
passing his examination." — Juridical Review.
[91
Companies — continued.
SMITH'S Summary of the Law of Companies. By
T. Eustace Smith, Barrister-at-Law. Twelfth
Edition, by the Author, and C. H. Hicks: 376
pages. Price 7s. 6d. net.
" The author of this handbook tells us that when an articled
student reading for the final examination, he felt the want of such
a work as that before us, wherein could be found the main
principles of a law relating to joint-stock companies. . . . Law
students may well read it ; for Mr. Smith has very wisely been at
the pains of giving his authority for all his statements of the law
or of practice, as applied to joint-stock company business usually
transacted in solicitors' chambers. In fact, Mr. Smith has by his
little book offered a fresh inducement to students to make them-
selves— at all events, to some extent — acquainted with company
law as a separate branch of study." — Law Times.
" These pages give, in the words of the Preface, ' as briefly and
concisely as possible a general view both of the principles and
practice of the law affecting companies.' The work is excellently
printed, and authorities are cited ; but in no case is the language
of the statutes copied. The plan is good, and shows both grasp
and neatness, and, both amongst students and laymen, Mr. Smith's
book ought to meet a ready sale." — Laiv Journal.
CONFLICT OF LAWS.
WESTLAKE'S Treatise on Private International
Law, with Principal Reference to its Practice in
England. Sixth Edition. By Norman Bentwich,
Barrister-at-Law. [In the press.
FOOTE'S Private International Jurisprudence. Based
on the Decisions in the English Courts. Fourth
Edition. By Coleman Phillipson, LL.D., Barrister-
at-Law. 574 pages. Price £1 5s. net.
CONSTITUTIONAL LAW AND
HISTORY.
KELKE'S Epitome of Constitutional Law and Cases.
185 pages. Price 6s.
" We think that Bar Students would derive much benefit from a
perusal of its pages before dealing with the standard text-books,
and as a final refresher." — Law Students' Journal.
[ 10 ]
Constitutional Law and History — continued.
CHALMERS' & ASQUITH'S Outlines of Constitutional
and Administrative Law. By D. Chalmers and
Cyril Asquith, Barristers-at-Law. Second Edition.
Price los. 6d. net.
This book has been re-written, with a special view to its use for
the Bar examinations.
THOMAS'S Leading Cases in Constitutional Law.
Briefly stated, with Introduction and Notes. By
Ernest C. Thomas, Bacon Scholar of the Hon.
Society of Gray's Inn, late Scholar of Trinity College,
Oxford. Fifth Edition. By Frank Carr, LL.D.
[In the press.
TASWELL-LANQMEAD'S English Constitutional
History. From the Teutonic Invasion to the Present
Time. Designed as a Text-book for Students and
others. By T. P. Taswell-Langmead, B.C.L., of
"Lincoln's Inn, Barrister-at-Law, formerly Vinenan
Scholar in the University and late Professor
of Constitutional Law and History, University
College, London. Eighth Edition. By Coleman
Phillipson, LL.D. 854 pages. Price 21s. net.
'" Taswell-Langmead ' has long been popular with candidates
for examination in Constitutional History, and the present edition
should render it even more so. It is now, in our opinion, the ideal
students' book upon the subject." — Law ISlotes.
" The work will continue to hold the field as the best classbook
on the subject." — Contemporary Review.
"The work before us it would be hardly possible to praise too
highly. In style, arrangement, clearness, and size it would be
difficult to find anything better on the real history of England,
the history of its constitutional growth as a complete story, than
this volume." — Boston {U.S.) Literary World.
WIL5HERE'S Analysis of Taswell-Langmead's Con-
stitutional History. By A. M. Wilshere, LL.B.,-
Barrister-at-Law. 115 pages. Price 6s. 6d. net.
[ 11 1
Constitational Law and History — continued.
HAMMOND'S Short Ensrlish Constitutional History
for Law Students. By Edgar Hammond, B.A. 163
pages. Price 7s. 6d. net.
An excellent book for the purpose of refreshing one's knowledge
preparatory to taking an examination.
" An excellent cram-book and a little more. The tabulation of
the matter is excellent." — Law Times.
CONTRACTS.
ODQERS on the Common Law. See page 7.
WILSHERE'S Analysis of Contracts and Torts,
being an Analysis of Books III. and IV. of Odgers on
the Common Law. By A. M. Wilshere and Douglas
RoBB, Barristers-at-Law, 172 pages. Price 6s. net.
It is designed as an assistance to the memory of the Student who
has read the parent work.
CARTER on Contracts. Elements of the Law of Con-
tracts. By A. T. Carter, of the Inner Temple,
Barrister-at-Lavv, Reader to the Council of Legal
Education. Fourth Edition. 272 pages. Price
8s. 6d.
" We have here an excellent book for those who are beginning
to read law." — Luw Magazine.
CONVEYANCING.
ELPHINSTONE'S Introduction to Conveyancing.
By Sir Howard Warburton Elphinstone, Bart.
Seventh Edition, by F. Trentham Maw, Barrister-
at-Law, Editor of Key and Elphinstone's Precedents
in Conveyancing. 694 pages. Price 25s. net.
" Incomparably the best introduction to the art of conveyancing
that has appeared in this generation. It contains much that is
useful to the experienced practitioner." — Law Times.
[ 12 ]
Conveyancing— continued.
" In our opinion no better work on the subject with which it
deals was ever written for students and young practitioners." —
Law Notes.
" . . . from a somewhat critical examination of it we have
come to the conclusion that it would be difficult to place in a
student's hand a better work of its kind." — Law Students' Journal.
DEANE & SPURLINQ'S Introduction to Convey-
ancing:, with an Appendix of Students' Precedents.
Third Edition, by Cuthbert Spurling, Barrister-at-
Law. Price £i is. net.
This book is complementary to and extends the information in
" Williams." It is clearly and attractively written and the text
extends to 273 pages. The reader is taken through the component
parts of Purchase Deeds, Leases, Mortgage Deeds, Settlements and
Wills, and the way in which these instruments are prepared is
explained. Previous to this is a short history of Conveyancing,
and a chapter on Contracts for Sale of Land dealing with the
statutory requisites, the form, particulars and conditions of sale,
the abstract of title, requisitions, etc., and finally there is a chapter
on conveyance by registration. The second part of the book,
covering about 100 pages, contains Clark's Students' Precedents
IN Conveyancing, illustrating the various documents referred to
in the first part. It is the only book cont..ining a representative
collection of precedents for students.
" It is readable and clear and will be of interest even to those
students who are not specialising in questions of real property." —
Cambridge Law Journal.
" The style is singularly lucid and the writer has deliberately
formed the opinion that this book should form part of the course
of every student who desires a real practical acquaintance with
modern conveyam ing. . . . Properly used, the writer's opinion is
that Deane and Spurling should be one of the first books studied
after the Intermediate has been negotiated." — Sittings Review.
INDERMAUR'S Leading: Conveyancing: and Equity
Cases. With some short notes thereon, for the use
of Students. By John Indermaur, Solicitor. Tenth
Edition by C. Thwaites. 206 pages. Price 6s. net.
"The Epitome well deserves the continued patronage of the
class — Students— for whom it is especially intended. Mr. Inder-
maur will soon be known as the ' Student's Friend.* " — Canada
Law Journal.
[ 13 1
CRIMINAL LAW AND PROCEDURE.
ODQERS on the Common Law. See page 7.
HARRIS'S Principles of the Criminal Law. Intended
as a Lucid Exposition of the subject for the use of
Students and the Profession. 'I'hirteenth Edition.
By A. M. WiLSHERE, Barrister-at-Law. 520 pages.
Price i6s. net.
" This Standard Text-book of the Criminal Law is as good a
book on the subject as the ordinary student will find on the
library shelves .... The book is very clearly and simply
written. No previous legal knowledge is taken for granted, and
everything is explained in such a manner that no student ought
to have much difficulty in obtaining a grasp of the subject. . . ."
— Solicitors' Journal.
". ... As a Student's Text-book we have always felt that this
work would be hard to beat, and at the present time we have no
reason for altering our opinion " — Laiv Times.
WILSHERE'S Elements of Criminal and Magisterial
Law and Procedure. By A. M. Wilshere, Barris-
ter-at-Law. Second edition. 256 pages. Price 8s.
net.
This book sets out concisely the essential principles of the criminal
law and explains in detail the most important crimes, giving
preced'nts of indictments ; it also gives an outline of criminal
procedure and evidence.
" An excellent little book for examination purposes. Any
student who fairly masters the book ought to pass any ordinary
examination in criminal law with ease." — Solicitors' Journal.
WILSHERE'S Leading Cases illustrating the Crimi-
nal Law, for Students. 168 pages. Price 6s. 6d.
net.
A companion book to the above.
" This book is a collection of cases pure and simple, without a
commentary. In each case a short rubric is given, and then follow
the material parts of the judge's opinions. The selection of cases
has been judiciously made, and it embraces the whole field of
criminal law. The student who has mastered this and its com-
panion volume will be able to face his examiners in criminal law
without trepidation." — Scots Law Times.
[ 14 ]
EASEMENTS.
BLYTH'S Epitome of the Law of Easements. By
T. T. Blyth, Barrister-at-Law. 158 pages. Price
6s, net.
"The book should prove a useful addition to the student's
library, and as such we can confidently recommend it." — Law
Quarterly Review.
CARSON on Prescription and Custom. Six Lectures
delivered for the Council of Legal Education. By
T. H. Carson, K.C. 136 pages. Price 6s. net.
ECCLESIASTICAL LAW.
SMITH'S Law and Practice in the Ecclesiastical
Courts. For the use of Students. By Eustace
Smith, Barrister-at-Law. Seventh Edition. 219
pages. Price 12s. 6d. net.
" His object has been, as he tells us in his preface, to give the
student and general reader a fair outline of the scope and extent
of ecclesiastical law, of the principles on which it is founded, of
the Courts by which it is enforced, and the procedure by which
these Courts are regulated. We think the book well fulfils its
object. Its value is much enhanced by a profuse citation of
authorities for the propositions contained in it.' — Bar Examination
Journal.
EQUITY,
SNELL'S Principles of Equity. Intended for the use
of Students and Practitioners. Eighteenth Edition.
By H. G. RiviNGTON, M.A. Oxon., and A. C. Foun-
TAiNE. 578 pages. Price £1 los. net.
" In a most modest preface the editors disclaim any intention to
interfere with Snell as generations of students have known it.
Actually what they have succeeded in doing is to make the book
at least three times as valuable as it ever was before. Illustrations
from cases have been deftly introduced, and the whole rendered
simple and intelligible until it is hardly recognisable." — The
Students' Companion.
" It has been stated that this book is intended primarily for law
students, but it is much too useful a book to be so limited. It is
[ 15 J
Equity — continued.
in our opinion the best and most lucid summary of the principles
of the law of equity in a small compass, and should be in every
lawyer's library." — Australian Law Times.
" ' Snell's Equity ' which has now reached its seventeenth edition,
has long occupied so strong a position as a standard work for
students that it was not easy to perceive how it could be improved.
The new editors have succeeded in achieving this task." — Law
Journal.
BLYTH'S Analysis of Snell's Principles of Equity,
with Notes thereon. By E. E. Blyth, LL.D.,
Solicitor. Eleventh Edition. 270 pages. Price
7s. 6d. net.
" This is an admirable analysis of a good treatise ; read with
Snell, this little book will be found very profitable to the student."
— Law Journal.
STORY'S Commentaries on Equity Jurisprudence.
Third English Edition. By A. E. Randall. 641
pages. Price 37s. 6d. net.
WILSHERE'S Principles of Equity. By A. M.
WiLSHERE. 499 pages. Price £1 5s. net.
In this book the author has endeavoured to explain and enable
the student to understand Equity. He has incorporated a large
number of explanations from the authorities and has tried to make
the subject intelligible while at the same t me he has as much
useful and relevant detail as the larger students' works. It is not
a mere "cram" book. ' A useful feature is an- analysis of the
subject which follows the text.
" Mr. Wilshere has succeeded in giving us a very clear exposition
of these principles. The book is far better balanced than the
majority of text books, and the law is stated in its modern garb
and is not, as in so many elementary works, almost lost to sight
beneath a mass of historical explanatory matter." — Sittings Review.
KELKE'S Epitome of Leading- Cases in Equity.
Founded on White and Tudor's Leading Cases in
Equity. Third Edition. 241 pages. Price 6s.
" It is not an abridgment of the larger work, but is intended to
furnish the beginner with an outline of equity law so far as it is
settled or illustrated by a selection of cases. Each branch is dealt
with in a separate chapter, and we have (inter alia) trusts,
mortgages, specific performance and equitable assignments, and
equitable implications treated with reference to the cases on the
subject." — Law Times.
\ 16 ]
Equity — continued.
INDERMAUR'S Epitome of Leading Equity Cases.
See page 13.
WHITE & TUDOR'S Leading Cases in Equity. A
Selection of Leading Cases in Equity ; with Notes.
Eighth '.• dition. By W. J. Whittaker, of the Middle
Temple and Lincoln's Inn, Barrister-at-Law. 2 vols.
Price £^ net.
" ' White and Tudor ' towers high above all other works on
Equity. It is the fountain of Equity, from which all authors
draw and drink. It is the book we all turn to when we want to
know what the Judges of the old Court of Chancery, or its
modern representative, the Chancery Division, have said and
decided on this or that principle of law. It is the book in which
counsel in his chambers puts such faith, and from which in Court
counsel reads with so much confidence. It is the book from the
law of which Judges hesitate to depart." — Law Notes.
EVIDENCE.
COCKLE'S Leading Cases and Statutes on the Law
of Evidence, with Notes, explanatory and connective,
presenting a systematic view of the whole subject.
By Ernest Cockle, Barrister-at-Law. Third
Edition. 500 pages. Price i6s. 6d. net.
This book and Phipson's Manual are together sufficient for
all ordinary examination purposes, and will save students the
necessity of reading larger works on this subject.
By an ingenious use of black type the author brings out the
essential words of the judgments and Statutes, and enables the
student to see at a glance the effect of each section.
" Of all the collections of leading cases compiled for the use of
students with which we are acquainted, this book of Mr. Cockle's
is, in our opinion, far and away the best. The student who picks
up the principles of the Fnglish law of evidence from these
readable and logical pages has an enormous advantage over a
generation of predecessors who toiled through the compressed
sentences of Stephen's little digest in a painful effort to grasp its
meaning. Mr. Cockle teaches his subject in the only way in
which a branch of law so highly abstract can ever be grasped ; he
arranges the principal rules of evidence in logical order, but he
puts forward each in the shape of a leading case which illustrates
it. Just enough of the headnote, the facts, and the judgments are
[ 17 1
Evidence — continued.
selected and set out to explain the point fully without boring the
reader ; and the notes appended to the cases contain all the
additional information that anyone can require in
ordinary practice." — Solicitors Journal.
PHIPSON'S Law of Evidence. By S. L. Phipson,
Barrister-at-Law. Sixth Edition. 699 pages. Price
£2 2s. net.
"The best book now current on the law of evidence in
England.'" — Harvard Law Review.
PHIPSON'S Manual of the Law of Evidence. Second
Edition. 208 pages. Price 12s. 6d. net.
This is an abridgment for students of Mr. Phipson's larger
treatise. With Cockle's Cases it will be sufficient for examina-
tion purposes.
" The way of the student, unlike that of the transgressor, is no
longer hard. The volume under review is designed by the author
for the use of students. To say that it is the best text-book for ,
students upon the subject is really to understate its usefulness; as
far as we know there is in existence no other treatise upon evidence
which gives a scientific and accurate presentment of the subject
in a form and compass suitable to students." — -Australian Law
Times.
" We know no book on the subject which gives in so short a
space so much valuable information. We readily commend the
work both to students and to practitioners, especially those who,
not being in possession of the author's larger work, wish to have
an up-to-date and explanatory companion to ' Cockle.' " — South
African Law Journal.
BEST'S Principles of Evidence. With Elementary
Rules for conducting the Examination and Cross-
Exam ination of Witnesses. Eleventh Edition. By
S. L. Phipson, Barrister-at-Law. 620 pages. Price
£1 5s. net.
" The most valuable work on the law of evidence which exists
in any country." — Law Times.
" There is no more scholarly work among all the treatises on
Evidence than that of Best. There is a philosophical breadth of
treatment throughout which at once separates the work from
those mere collections of authorities which take no account of
the 'reason why,' and which arrange two apparently contradictory
propositions side by side without comment or explanation." —
Law Magazine.
[ 18 ]
Evidence — continued.
WROTTESLEY on the Examination of Witnesses
in Court. Including Examination in Chief, Cross-
Examination, and Re-Examination. With chapters
on Preliminary Steps and some Elementary Rules
of Evidence. By F. J. Wrottesley, of the Inner
Temple, Barrister-at-Law. 173 page'^. Price 6s. net.
This is a practical book for the law student. It is interesting, and
is packed full of valuable hints and information. The author
lays down clearly and succinctly the rules which should guide the
advocate in the examination of witnesses and in the argument of
questions of fact and law, and has illustrated the precepts which
he has given by showing how they have been put into actual
practice by the greatest advocates of modern times.
EXAMINATION GUIDES AND
QUESTIONS.
SHEARWOOD'S Selection of Questions set at tlie
Bar Examinations from 1913 to 1921. Price
6s. net.
INDERMAUR'S Articled Clerk's Guide to and
Self- Preparation for the Final Examination.
Containing a Complete Course of Study, with Books
to Read, List of Statutes, Cases, Test Questions, &c.,
and intended for the use of those Articled Clerks who
read by themselves. Seventh Edition. [In the press,
" His advice is practical and sensible : and if the course of study
he recommends is intellijjently followed, the articled clerk will
have laid in a store of legal knowledge more than sufficient to
carry him through the Final Examination." — Solicitors' Journal.
A New Guide to the Bar. Containing the Regula-
tions and Examination Papers, and a critical Essay
on the Present Condition of the Bar of England.
By LL.B., Barrister-at-Law. Fourth Edition. 204
pages. Price 5s.
A Guide to the Les:al Profession and London LL.B.
Containing the latest Regulations, with a detailed
description of all current Students' Law Books, and
suggested courses of reading. Price 2s. 6d. net.
[ 19 ]
EXECUTORS.
WALKER'S Compendium of the Law relating to
Executors and Administrators. Fifth Edition,
By S. E. Williams, of Lincoln's Inn, Barrister-at-
Law. £i 5s. net.
" We highly approve of Mr. Walker's arrangement. . . . We
can commend it as bearing on its face evidence of skilful and
careful labour." — Law Times.
INSURANCE LAW.
HARTLEY'S Analysis of the Law of Insurance. By
D. H. J. Hartley, Barrister-at-Law. 119 pages.
Price 4s. 6d. net.
PORTER'S Laws of Insurance: Fire, Life, Accident,
and Guarantee. Embodying Cases in the English,
Scotch, Irish, American, Australian, New Zealand,
and Canadian Courts. Sixth Edition. 490 pages.
Price £1 I2S. 6d. net.
INTERNATIONAL LAW.
BENTWICH'S Students' Leading Cases and Statutes
on International Law, arranged and edited with
notes. By Norman Bentwich, Barrister-at-Law.
With an Introductory Note by Professor L. Oppen-
HEiM. 247 pages. Price 12s. 6d. net.
" This Case Book is admirable from every pomt of view, and
may be specially recommended to be used by young students in
conjunction v/ith their lectures and their reading of text-books."
— Professor Oppenheim.
COBBETT'S Leading^ Cases and Opinions on Inter-
national Law, and various points of English Law
connected therewith, Collected and Digested from
English and Foreign Reports, Official Documents,
and other sources. With Notes containing the
r 20 1
International Law — continued.
views of the Text- writers on the Topics referred
to, Supplementary Cases, Treaties, and Statutes.
By Pitt Corbett, M.A., D.C.L. Oxon.
Vol. I. "Peace." Fourth Edition. By H. H. L.
Bellot, D.C.L. [In the press.
Vol.11. "War and Neutrality." Third Edition,
By the Author, 579 pages. 15s. net.
"The book is well arranged, the materials well selected, and the
comments to the point. Much will be found in small space in
this book."^L«te> Journal.
" The notes are concisely written and trustworthy
The reader will learn from them a great deal on the subject, and
the book as a whole seems a convenient introduction to fuller and
more systematic works." — Oxford Magazine.
JURISPRUDENCE.
EASTWOOD'S Brief Introduction to Austin's Theory
of Positive Law and Sovereignty. By R. A.
Eastwood. 72 pages. Price 3s. 6d. net.
Nine out of ten students who take up the study of Jurisprudence
are set to read Austin, without any warning that Austin's views
are not universally held, and that his work ought not now to be
regarded alone, but rather in connection with the volume of
criticism and counter-criticism to which it has given rise.
Mr. Eastwood's book gives a brief summary of the more essential
portions of Austin, together with a summary of the various views
and discussions which it has provoked.
SALMOND'S Jurisprudence; or, Theory of the Law.
By John W. Salmond, Barrister-at-Law. Sixth
Edition. 496 pages. Price £1 net.
LEGAL HISTORY.
HAMMOND'S Short History of Ens:lish Law, for
Law Students. By Edgar Hammond, B.A. Price
IDS. 6d. net. Clear and concise. Containing just
what is required for the examinations.
[ 21 ]
Legal History — continued.
EVANS'S Theories and Criticisms of Sir Henry
Maine. Contained in his six works, "Ancient Law,"
"Early Law and Customs," "Early History of In-
stitutions," "Village Communities," "International
Law," and "Popular Government," which works
have to be studied for the various examinations.
By Morgan O. Evans, Barrister-at-Law. loi pages.
Price 5s. net.
LEGAL MAXIMS.
BROOM'S Selection of Legal Maxims, Classified and
Illustrated. Eighth Edition. By J. G. Pease and
Herbert Chitty. 767 pages. Price £1 12s. 6d.
net.
The main idea of this work is to present, under the head of
" Maxims," certain leading principles of English law, and to
illustrate some of the ways in which those principles have been
applied or limited, by reference to reported cases. The maxims
are classified under the following divisions: —
Rules founded on Public Fundamental Legral Principles.
Policy. Acquisition, Enjoyment, and
Rules of Legrislative Policy. Transfer of Property.
Maxims relating; to the Rules Relating: to Marriage
Crown. and Descent.
The Judicial Office. The Interpretation of Deeds
The Mode of Administerins: and Written Instruments.
Justice. The Law of Contracts.
Rules of Logic. The Law of Evidence.
" It has been to us a pleasure to read the book, and we cannot
help thinking that if works of this kind were more frequently
studied by the Profession there would be fewer false points taken
in argument in our Courts." — Justice of the Peace.
Latin for Lawyers. Contains (i) A course in Latin,
in 32 lessons, based on legal maxims ; (2) 1000 Latin
Maxims, with translations, explanatory notes, cross-
references, and subject-index ; (3) A Latin Vocabu-
lary. 300 pages. Price 7s. 6d. net.
[ 22 ]
Legal Maxims — continued.
This book is intended to enable the practitioner or student to
acquire a working knowledge of Latin in the shortest possible
time, and at the same time to become acquainted with the legal
maxims which embodv the fundamental rules of the common law.
COTTERELL'S Latin Maxims and Phrases. Literally
translated, with explanatory notes. Intended for
the use of students for all legal examinations. By
J. N. CoTTERELL, Solicitor. Third Edition. 82
pages. Price 5s. net.
LOCAL GOVERNMENT.
WRIGHT & HOBHOUSE'S Outline of Local Govern-
ment and Local Taxation in Engfland and Wales
(excluding London). Fifth Edition. With Intro-
duction and Tables of Local Taxation. By Rt.
Hon. Henry Hobhouse. [In the press.
" The work gives within a very moderate compass a singularly
clear and comprehensive account of our present system of local
self-government, both in urban and rural districts. We are,
indeed, not aware of any other work in which a similar view is
given with equal completeness, accuracy, and lucidity."— County
Council Times.
" Lucid, concise, and accurate to a degree which has never been
surpassed." — Justice of the Peace.
JACOBS' Epitome of the Law relating: to Public
Health. By Bertram Jacobs, Barrister-at-Law.
igi pages. Price 7s. 6d. net.
Specially written for students.
" This little work has the great merit of being an accurate guide
to the whole body of law in broad outline, with the added ad-
vantage of bringing the general law up to date. The one feature
will appeal to the general student or newly-fledged councillor, and
the other to the expert who is always the better lor the perusal of
an elementary review." — Municipal Officer.
[ 23 J
MERCANTILE LAW.
HURST & CECIL'S Principles of Commercial Law.
With an Appendix of Annotated Statutes. Second
Edition. By J. Hurst, Barrister-at-Law. 518 pages.
Price IDS. 6d. net.
SLATERS' Principles of Mercantile Law. By Joshua
Slater, Barrister-at-Law. Third Edition. 308
pages. Price 6s. 6d. net.
SMITH'S Mercantile Law. A Compendium of Mer-
cantile Law, by the late John William Smith.
Twelfth Edition. By J. H. Watts, Barrister-at-
Law. [In the press,
CONTENTS—
Partners.
Companies.
Principal and Agrent.
Shipping:.
Patents.
Qoodwilt.
Trade Marks.
Negrotiable Instruments,
Carriers.
Affreigrhtment.
Insurance.
Contracts.
Guarantees.
Stoppagre in Transitu.
Lien.
Banlcruptcy.
Bills of Exchangre.
Master and Servant.
Sale of Qoods.
Debtor and Creditor.
" We have no hesitation in recommending the work before us to
the profession and the public as a reliable guide to the subjects
included in it, and as constituting one of the most scientific
treatises extant on mercantile law." — Solicitors' Journal.
MORTGAGES.
STRAHAN'S Principles of the General Law of
Mortgag:es. By J. Andrew Strahan, Barrister-at-
Law, Reader of Equity, Inns of Court. Second
Edition. 247 pages. Price 7s. 6d. net.
" He has contrived to make the whole law not merely consistent,
but simple and reasonable. . . . Mr. Strahan's book is ample
for the purposes of students' examinations, and may be thoroughly
recommended." — Law Journal.
" It is a subject in which there is great need for a book which in
moderate compass should set forth in clear and simple language
the great leading principles. This Mr. Strahan's book does in a
way that could hardly be bettered." — Law Notes.
I 24 ]
PARTNERSHIP.
STRAHAN & OLDHAM'S Law of Partnership. By
J. A. Strahan, Reader of Equity, Inns of Court,
and N. H. Oldham, Barristers-at-Law. Second
Edition. 264 pages. Price los. net.
" It might almost be described as a collection of judicial
statements as to the law of partnership arranged with skill, so as
to show their exact bearing on the language used in the Partner-
ship Act of 1890, and we venture to prophesy that the book will
attain a considerable amount of fame." — Student's Companion.
PERSONAL PROPERTY.
WILLIAMS' Principles of the Law of Personal Pro-
perty, intended for the use of Students in Con-
veyancing. Seventeenth Edition. By T. Cyprian
Williams, of Lincoln's Inn, Barrister-at-Law. 655
pages. Price £1 is. net.
" Whatever competitors there may be in the field of real pro-
perty, and they are numerous, none exist as serious rivals to
Williams' Personal. For every law student it is invaluable, and
to the practitioner it is often useful." — Law Times.
WILSHERE'S Analysis of Williams on Real and
Personal Property. By A. M. Wilshere, Barrister-
at-Law. 205 pages. Third Edition. Price 6s. net.
This book is designed as an assistance to the memory of the
student who has read the parent works. It contains a useful
appendix of questions.
" It will be found a most excellent aid to the student." — Law
Students' JournaL
KELKE'S Epitome of Personal Property Law. Third
Edition. 155 pages. Price 6s.
"On the eve of his examination we consider a candidate for the
Solicitors' Final would find this epitome most useful." — Laiv Notes.
" .An admirable little book ; one, indeed, which will prove of
great service to students, and which will meet the needs of the
busy practitioner who desires to refresh his memory or get on the
track of the law without delay." — Irish Law JournaL
[ 25 ]
Personal Property — continued.
QOODEVE'S Modern Law of Personal Property.
With an Appendix of Statutes and Forms. Fifth
Edition. Revised and partly re-written by J. H.
Williams and W. M. Crowdy, Barristers-at-Law.
461 pages. Price £1 net.
'■ We have no hesitation in heartily commending the work to
students. They can hardly take up a better treatise on the subject
of Personal Property." — Law Student's Journal.
PROCEDURE.
ODQERS on the Common Law. See page 7.
INDERMAUR'S Manual of the Practice of the
Supreme Court of Judicature, in the King's
Bench and Chancery Divisions. Tenth Edition.
Intended for the use of Students and the Profession.
By Charles Thwaites, Solicitor. 495 pages. Price
£1 net.
" The arrangement of the book is good, and references are given
to the leading decisions. Copious references are also given to the
rules, so that the work forms a convenient guide to the larger
volumes on practice. It is a very successful attempt to deal
clearly and concisely with an important and complicated
subject." — Solicitors' Journal.
WILSHERE'S Outlines of Procedure in an Action in
the King's Bench Division. With some facsimile
forms. For the Use of Students. By A. M. Wilshere,
Barrister - at - Law. Second Edition. 127 pages.
Price 7s. 6d. net.
This forms a companion volume to Wilshere's Criminal Law,
and the student will find sufficient information to enable him to
pass any examination in the subjects dealt with by the two
books.
" The author has made the book clear, interesting, and instruc-
tive, and it should be acceptable to students." — Solicitors' Journal.
WHITE'S Points on Chancery Practice. A Lecture
delivered to the Solicitors' Managing Clerks'
Association, by Richard White, a Master of the
Supreme Court. 76 pages. Price 3s. 6d. net.
[ 26 ]
REAL PROPERTY.
WILLIAMS' Principles of the Law of Real Property.
Intended as a first book for the use of Students in
Conveyancing. 23rd Edition. By T. Cyprian
Williams, Barrister -at -Law. 717 pages. Price
£1 IDS. net.
" Its value to the student cannot well be over-estimated." — Law
Students' Journal.
" The modern law of real property is, as he remarks in his con-
cluding summary, a system of great complexity, but under his
careful supervision ' Williams on Real Property ' remains one of
the most useful text-books for acquiring a knowledge of it." —
Solicitors' Journal.
WILSHERE'S Analysis of Williams on Real and
Personal Property. Third Edition. 205 pages.
Price 6s. net.
This book is designed as an assistance to the memory of the
student who has read the parent works. It contains a useful
appendix of questions.
" Read before, with, or after Williams, this should prove of
much service to the student. In a short time it is made possible
to him to grasp the outline of this difficult branch of the law." —
Law Magazine.
KELKE'S Epitome of Real Property Law, for the
use of Students. Fifth Edition. By Cuthbert
Spurling, Barrister-at-Law. 243 pages. Price
8s. 6d. net.
" The arrangement is convenient and scientific, and the text
accurate. It contains just what the diligent student or ordinary
practitioner should carry in his head, and must be very useful for
those about to go in for a law examination." — Latv Times.
QOODEVE'S Modern Law of Real Property. Fifth
Edition. By Sir Howard Warburton Elphinstone,
Bart., and F. T. Maw, both of Lincoln's Inn, Barris-
ters-at-Law. 462 pages. Price 21s.
" No better book on the principles of the law relating to real
property could well be placed in a student's hands after the first
elements relating to the subject have been mastered." — Law
Students' Journal.
[ 27 ]
Real Property — continued.
EDWARDS' Compendium of the Law of Property in
Land. For the use of Students and the Profession.
By W. D. Edwards, Barrister-at-Law. Fifth
Edition. About 550 pages. [In the press.
" Mr. Edwards' treatise on the Law of Real Property is marked
by excellency of arrangement and conciseness of statement." —
Solicitors' Journal.
" So excellent is the arrangement that we know of no better
compendium upon the subject of which it treats." — Laiv Times.
RECEIVERS.
KERR on the Law and Practice as to Receivers
appointed by the High Court of Justice or Out of
Court. Seventh Edition. 410 pages. Price £1 is.
net.
ROMAN LAW.
KELKE'S Epitome of Roman Law. 255 pages.
Price 6s. net.
This is a highly condensed summary of all the salient facts of
Roman Law throughout its history, taking as its centre the era of
Gaius and the Antonines.
" One of the safest introductory manuals which can be put into
the hands of a student who wishes to get a general knowledge of
the subject. In embodying many of the views of Moyle, Sohm,
and Poste, it is more up-to-date than some of the older manuals
which are still in traditional use, and much more accurate and
precise than some of the elementary works which have appeared
more recently." — Law Quarterly Review. \
KELKE'S Primer of Roman Law. 152 pages. Price
5s. net.
" In this book the author confines himself mainly to the system
of Justinian's Institutes, and as a student's guide to that text-book
it should be very useful. The summary is very well done, the
arrangement is excellent, and there is a very useful Appendix of
Latin words and phrases." — Law Journal.
[ 28 ]
Roman Law — continued.
CAMPBELL'5 Compendium of Roman Law. Founded
on the Institutes of Justinian ; together with
Examination Questions Set in the University and
Bar Examinations (with Solutions), and Definitions
of Leading Terms in the Words of the Principal
Authorities. Second Edition. By Gordon Campbell,
of the Inner Temple, M.A., LL.D. 300 pages. Price
I2S. net.
HARRIS'S Institutes of Gaius and Justinian. With
copious References arranged in Parallel Columns,
also Chronological and Analytical Tables, Lists of
Laws, &c., &c. Primarily designed for the use of
Students preparing for Examination at Oxford,
Cambridge, and the Inns of Court. By F. Harris,
B.C.L., M.A., Barrister-at-Law. Third Edition.
223 pages. Price 6s. net.
" This book contains a summary in English of the elements of
Roman Law as contained in the works of Gaius and Justinian,
and is so arranged that the reader can at once see what are the
opinions of either of these two writers on each point. From the
very exact and accurate references to titles and sections given he
can at once refer to the original writers. The concise manner in
which Mr. Harris has arranged his digest will render it most
useful, not only to the students for whom it was originally written,
but also to those persons who, though they have not the time to
wade through the larger treatises of Poste. Sanders, Ortolan, and
others, yet desire to obtain some knowledge of Roman Law."
— Oxford and Cambridge Undergraduates' Journal.
JACKSON'S Justinian's Digest, Book 20, with an
English Translation and an Essay on the Law of
Mortgage in the Roman Law. By T. C. Jackson,
B.A., LL.B., Barrister-at-Law. 98 pages. 7s.6d.net.
SALKOWSKI'S Institutes and History of Roman
Private Law. With Catena of Texts. By Dr.
Car Salkowski, Professor of Laws, Konigsberg.
Translated and Edited by E. E, Whitfield, M.A.
Oxon. 1076 pages. Price £1 12s. net.
[ 29 ]
Roman Law — continued.
HUNTER'S Systematic and Historical Exposition of
Roman Law in tlie Order of a Code. By W. A.
Hunter, M.A., Barrister-at-Law. Embodying the
Institutes of Gains and the Institutes of Justinian,
translated into English by J. Ashton Cross, Bar-
rister-at-Law. Fourth Edition. 1075 pages. Price
£1 I2S. net.
HUNTER'S Introduction to the Study of Roman
Law and the Institutes of Justinian. Sixth
Edition. With a Glossary explaining the Technical
Terms and Phrases employed in the Institutes.
By W. A. Hunter, M.A., LL.D., of the Middle
Temple, Barrister-at-Law. 228 pages. Price ids.
net.
GARSIA'S Roman Law in a Nutshell. With a
selection of (questions set at Bar Examinations. By
M. Garsia, Barrister-at-Law. 48 pages. Price
4s. net.
With this cram book and the small Hunter or Kelke the examina-
tions can be passed.
SALE OF GOODS.
WILLIS'S Law of Contract of Sale. Contained in a
Course of Six Lectures delivered by William Willis,
one of His Majesty's Counsel, at the request of the
Council of Legal Education. Second Edition, with
the text of the Sale of Goods Act. By H. N.
HiBBERT, LL.D. 176 pages. Price los. net.
STATUTES.
MAXWELL on the Interpretation of Statutes. By
Sir Peter Benson Maxwell, late Chief Justice of
the Straits Settlements. Sixth Edition. By Wyatt
Paine, Barrister-at-Law. 750 pages. Price £l 15s.
net,
[ 30 ]
statutes — continued.
"This is an admirable book, excellent in its method and
arrangement, and clear and thorough in its treatment of the
different questions involved." — Laiv Magazine.
"The whole book is very readable as well as instructive." —
Solicitors' Journal.
CRAIES on Statute Law founded on Hardcastle on
Statutory Law. With Appendices containing Words
and Expressions used in Statutes whicli have been
judicially and statutably construed, and the Popular
and Short Titles of certain Statutes, and the Inter-
pretation Act, 1899. By W. F. Craies, Barrister-at-
Law. Second Edition. 825 pages. Price £1 8s. net.
"Both the profession and students will find this work of great
assistance as a guide in that difficult branch of our law, namely
the construction of Statutes." — Law Times.
TORTS.
ODGERS on the Common Law. See page 7.
WILSHERE'S Analysis of Contracts and Torts,
being an Analysis of Books III. and IV. of Odgers on
the Common Law. By A. M. Wilshere and Douglas
RoBB, Barristers-at-Law. 172 pages. Price 6s. net.
It is designed as an assistance to the memory of the Student who
has read the parent work.
FRASER'5 Compendium of the Law of Torts.
Specially adapted for the use of Students. By H.
Eraser, Barrister-at-Law, one of the Readers to the
Inns of Court. Tenth Edition. 258 pages. Price
I2S. 6d. net.
" It is a model book for students — clear, succinct, and trustworthy,
and showing a practical knowledge of their needs." — Law Journal.
RINQWOOD'S Outlines of the Law of Torts. Pre-
scribed as a Text-book by the Incorporated Law
[ 31 ]
Torts — continued.
Society of Ireland. By Richard Ringwood, M.A.,
of the Middle Temple, Barrister-at-Law. Fourth
Edition. 376 pages. Price ids. 6d. net.
" We have always had a great liking for this work, and are very
pleased to see by the appearance of a new Edition that it is
appreciated by students. We consider that for the ordinary
student who wants to take up a separate work on Torts, this is
the best book he can read, for it is clear and explanatory, and has
good illustrative cases, and it is all contained in a very modest
compass. . . . This Edition appears to have been thoroughly
revised, and is, we think, in many respects improved." — Lmv
Students' Journal.
" The work is one we well recommend to law students, and the
able way in which it is written reflects much credit upon the
author." — Law Times.
SALMOND'S Law of Torts. A Treatise on the English
Law of Liability for Civil Injuries. By Sir John W.
Salmond. Fifth Edition. 568 pages. £1 los. net.
" It would be difficult to find any book on the subject of Torts
in which the principles are more clearly and accurately expressed
or the case law more usefully referred to." — Solicitors' Journal.
WILLS.
STRAHAN'S Law of Wills. By J. A. Strahan,
Barrister-at-Law. 167 pages. Price 7s. 6d. net.
"We do not know of anything more useful in its way to a
student, and it is a book not to be despised by the practitioner."
— Law Magazine.
MATHEWS' Guide to Law of Wills. By A. G.
Mathews, Barrister-at-Law. 402 pages. Price
7s. 6d. net.
" Mr. Mathews has produced an excellent and handy volume on
a subject bristling with difficulties. . . . There is a scope for a
short work of this kind on this subject, and doubtless Mr. Mathews'
book will find its way into the hands of many Law Students." —
Juridical Review.
The Eastern Press, Ltd., London and Reading.
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